The federal government is right to reject any notion that First Nations communities are entitled to a veto over natural resource projects on their traditional lands. There is no legal basis for such a claim; and the United Nations special rapporteur on the rights of indigenous peoples, James Anaya, is wrong to suggest otherwise in the case of the proposed Northern Gateway pipeline.
Governments do have a constitutional duty to consult native communities and take careful account of their key interests and concerns, be they environmental, economic or the result of previous policies. A failure to negotiate these shoals successfully is bound to tie up any major infrastructure project in years of costly legal wrangling that will end up helping no one but the lawyers.
The federal cabinet is expected to give the green light early next month to Enbridge Inc.’s Northern Gateway, which won approval late last year from a National Energy Board review panel.
In reaching its decision, the panel attached 209 environmental, safety and financial conditions. But it left no doubt that it considered the pipeline to be in the public’s interest.
That has only intensified opposition on the ground. And Ottawa has done itself no favours through its handling of the situation. Trust had become a casualty long before the UN advocate stepped in, at least partly because the Harper government came across as a staunch advocate of the project long before the review panel completed its work.
Although careful to note that the government was awaiting the result of the panel’s findings and would not intervene in the process, then natural resources minister Joe Oliver often seemed to be the minister in charge of lobbying for the project. It turned communities along the proposed route from skeptical to deeply suspicious, making it tougher to negotiate deals.
Canada does indeed need more pipelines, as oil-sands production increases and energy-hungry foreign markets beckon. The only alternative for moving large volumes is rail, which comes with higher costs and greater safety and environmental risks.
So it’s not a matter of building or not building: More pipe is needed. But that does not mean that every proposed pipeline route is essential, including Northern Gateway’s preferred route. Native groups may not have a veto over the project, but they do know their way around the legal system.