KJIPUKTUK (Halifax) -- Internal documents obtained by the Halifax Media Co-op suggest that something has gone very wrong with the Aboriginal consultation file in New Brunswick over Trans Canada's proposed Energy East pipeline. Internal rifts and mistrust over the Energy East file within the Assembly of First Nations Chiefs in New Brunswick Inc (AFNCNB) - an incorporated body that claims consultative authority of several First Nations communities in New Brunswick – may also explain a recent meltdown of the organization, whereby over the past several months numerous First Nations communities in New Brunswick have opted to leave the consultative umbrella of the AFNCNB and either 'go it alone' in consultative activities, or tentatively form their own alliances.

All of this 'consultation talk', of course, is related to the Canadian government's 'duty to consult', which is triggered when, according to the federal department of Aboriginal Affairs: “the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights.”

Our documents, when compared to engagement logs provided in the Energy East Project Application to the National Energy Board, dated between April 2013 to December 2014, suggest that key funding agreements between New Brunswick's Indian Act chiefs and Trans Canada remain unsigned.

While Trans Canada has not yet filed a final project proposal with the National Energy Board for the proposed Energy East pipeline, inking funding agreements with various First Nations groups across the span of the proposed project has been a priority for Trans Canada, as well as a necessity under the 'duty to consult'. Ishkonigan Consulting and Mediation, former Assembly of First Nations chief Phil Fontaine's company, has been hired specifically by Trans Canada for the task of 'consultation'.

In a document dated January 2015, Trans Canada notes that, “Letters of agreement” (LOA) have been signed with 13 of 15 First Nations chiefs in New Brunswick. The LOA is an introductory step in the consultation process between industry and First Nations Indian Act representatives, but only acts as a 'foot in the door' towards the creation of a more substantial Communications and Engagement Funding Agreement (CEFA). While an LOA might provide funding for chiefs to attend various meetings and presentations, the more comprehensive CEFA might contain opportunities for employment, further funding, etc.

It is at this more comprehensive step that Trans Canada, Ishkonigan and the First Nation chiefs of New Brunswick have apparently stumbled, with Trans Canada noting in the same January 2015 document that:

“CEFA(s) for multi-year capacity funding have been sent to all 15 First Nations. CEFA negotiations are occurring between 14 of the 15 First Nations but no agreements have been signed.”

This stumble in the CEFA process appears to be related to a break-down in communication between representatives from Ishkonigan and the AFNCNB. Documents show a souring in the relationship between Ishkonigan and Trans Canada on the one hand and the AFNCNB on the other, specifically over the degree of control that the AFNCNB has attempted to exercise over the consultation process.

Indeed, documents show that internal unease within the AFNCNB over its handling of the Energy East file has been at least partially responsible for several First Nations communities in New Brunswick exiting from the organization.

The 'Energy East Project Application Engagement logs' that Trans Canada has filed with the National Energy Board suggest that during 2014, Angie Leonard, former New Brunswick Minister of Energy and Mines Craig Leonard's sister, was the lead consultant at the AFNCNB charged with developing the organization's CEFA over the proposed pipeline. At the time, the AFNCNB was representing 10 of 15 First Nations communities in New Brunswick.

But Leonard, along with the AFNCNB's Brad Sappier (another of the organization's consultants), apparently did not instill faith with some chiefs that they were up to the technical task of developing the CEFA.

As far back as April 7, 2014, engagement logs show that Saga Williams, one of Ishkonigan's lead consultants on the file, was taking phone calls and text messages from chief David Peter-Paul, of Pabineau First Nation. Pabineau First Nation was – and still is – under the AFNCNB's consultative umbrella. Williams' log states that Peter-Paul:

“was not comfortable with the development of the CEFA process at the technical levels by Angie Leonard, Assembly Economic Development Advisory and Brad Sappier, Consultation Coordinator.”

Peter-Paul, along with other New Brunswick chiefs still within the AFNCNB, would begin to engage and negotiate directly with Williams, Ishkonigan and Trans Canada. This was, of course, their purview. But this direct negotiation apparently rubbed Leonard very much the wrong way.

By August 13 or 14, 2014 (dates vary between different sources), Leonard had submitted the AFNCNB's proposed CEFA to Saga Williams. Although the CEFA itself has been omitted from the documents we have obtained, it likely would have contained extensive funding proposals.

Williams, in response, emailed Leonard on August 18, noting that in order for the National Energy Board, as regulator of the proposed pipeline, to move forward, that Band Council Resolutions would be needed from all of New Brunswick's chiefs, approving the AFNCNB's CEFA. This fairly basic request would show that the chiefs in New Brunswick were in accordance with whatever deal that Leonard was proposing on behalf of the AFNCNB. Otherwise, neither the project, Ishkonigan or the National Energy Board could move forward.

It would appear that this was not the first such request for transparency from Williams to Leonard and the AFNCNB.

In her engagement log, Williams writes:

“Since at least March 14, 2014 Ishkonigan and TransCanada have been transparent about the need for support from each First Nation’s Chiefs and Councils and the requirement for proof...Ishkonigan and TransCanada needed to prove engagement to the regulator and not expend further effort and resources on a process that would not provide information to the New Brunswick First Nation communities or from the New Brunswick First Nation communities to TransCanada with regards to the Energy East Pipeline project.”

Instead of seeing the validity of Williams' request to obtain Band Council Resolutions from each of New Brunswick's First Nation communities, Leonard's response, according to Williams' engagement log, asked that Ishkonigan employee stop communicating with individual First Nations in New Brunswick:

“Angie Leonard responded to Saga Williams’ offer for direct engagement by making a request that while Ishkonigan works towards a collective process that Ishkonigan stop approaching the New Brunswick First Nation communities directly...In response, Saga Williams stated that this was not possible, as it was Ishkonigan’s obligation to continue to provide information and that the New Brunswick First Nation communities have a reciprocating obligation to engage as well.”

By late August, 2014, Leonard had temporarily broken off communication with Ishkonigan. Instead, in late August, the AFNCNB's co-chairs at the time, George Ginnish and Brenda Perley, penned a letter to Trans Canada in which they referenced:

“a number of court decisions regarding affirmed Aboriginal and Treaty rights and explained that AFNCNB had not yet been contacted by the Crown concerning the Project and Marine Terminal...Concern was [also] expressed regarding the social harm and divisiveness caused by TransCanada in contacting communities directly.”

Trans Canada, however, was having none of it. A November 7, 2014, letter from Ryan McFadden, Trans Canada's Manager of Aboriginal Relations for the Energy East project, to the AFNCNB, noted that the consultative relationship had been proceeding on schedule, until Ishkonigan's request to engage each First Nation community over Leonard's proposed CEFA.

If there was any reason for a communication breakdown, it was this, and not disrespect of existing treaties or land rights, that was to blame.

McFadden writes:

“Despite outreach to the Assembly staff, the Aboriginal Engagement team did not receive any substantive correspondence until your letter of August 13, 2014, with the appended Assembly CEFA Proposal. Upon receipt of this correspondence, the Aboriginal Engagement team contacted the Assembly and requested to meet and discuss the Assembly CEFA Proposal. After a telephone discussion between one of my team members and your Energy Advisor, all communication regarding the Assembly CEFA Proposal ceased, apparently due to our requirement that each First Nation submit a Band Council Resolution to support the Assembly's collective engagement strategy.”

This breakdown in communication between the AFNCNB and Ishkonigan, which appears to have been instigated over Williams' hesitance to 'fast-track' Leonard's CEFA proposal while shutting out individual communication with other New Brunswick Indian Act chiefs, may well be responsible for a variety of domino effects.

Leonard's balked-at CEFA proposal is likely at least partially responsible for the continued implosion at the AFNCNB. All six Wolustuk communities in New Brunswick, along with Elsipogtog First Nation, have left the AFNCNB. While the Wolustuk communities, whose traditional territory lies to the west of the Saint John river and in the direct path of the proposed pipeline, have not publicly elaborated on their reasoning for fleeing the AFNCNB – and undoubtedly they are varied - they have continued direct negotiations with Ishkonigan and Trans Canada on the Energy East file. Several of these communities have also entered into joint-Traditional Knowledge agreements with Trans Canada.

Of course, all of this consultative engagement speaks to the helter-skelter 'duty to consult' relationship between levels of government, First Nations communities, and industry. Realistically, First Nations communities must continue to 'play the game' of consultation. Walking away from the consultative 'table' does not act as a veto to a proposed project, be it pipeline or otherwise. It only recuses whatever First Nation group or organization that walks away from the table from further consultations. The proposed project itself is not placed in jeopardy, and continues along without them.

As the story of Energy East consultation continues, it will be interesting to observe the actions of the AFNCNB and the Wolustuk communities in New Brunswick who have left the organization – and who stand to be most greatly impacted by the proposed pipeline. As well, it almost goes without saying that more traditional forms of governance, such as the Wolustuk Grand Council, have been shut out entirely from consultative activities.

Of note, only the AFNCNB is listed as an 'Aboriginal Intervenor' by the National Energy Board for upcoming hearings on the proposed pipeline.