Ottawa has a duty to consult First Nations on Northern Gateway pipeline

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Just as he's ticking off the checklist on his way to approving the controversial Northern Gateway pipeline, Stephen Harper finds himself facing what may be a summer of discontent among First Nations.

The pipeline is a symbol of Mr. Harper's oil-to-Asia economic agenda, but if he wants it built, he'll have to ensure it doesn't become a flashpoint in broader national clashes between his government and aboriginal communities.

Cabinet's decision on the pipeline, which would carry Alberta bitumen to Asia-bound tankers, is due by June 17. So the government is working through a checklist, taking steps to make approval more palatable: Last week it announced new safety regulations for pipelines and oil tankers.

But as it stands, the government would be approving a pipeline that would probably never be built. That's because it hasn't yet done what's necessary to consult First Nations that claim the lands along the route.

Those aboriginal communities don't have a veto, but Ottawa has a legal "duty to consult" them, and that means good-faith, back-and-forth discussions about problems and alternatives, and efforts to accommodate real concerns. Despite all the talk, Ottawa hasn't started serious consultations indicating its approach to accommodations, said Merle Alexander, a partner with Gowlings in Vancouver and a specialist in aboriginal law.

So it's a good bet that when the government formally approves the pipeline, it will come with another condition, beyond technical matters: stepped-up consultations with First Nations to accommodate their concerns. That has to come before shovels break ground.

The problem for the government is that it needs to work up some goodwill for consultations just as its broader relationship with First Nations is becoming strained.

Mr. Harper's proposed First Nations education bill sparked tensions, and forced the resignation of Assembly of First Nations national chief Shawn Atleo – who was attacked as a shill for endorsing the bill without broader consultations. Some are calling for a more confrontational approach: the AFN's Confederacy of Nations discussed a draft statement that threatened "economic shutdown" if Ottawa doesn't stop unilaterally imposing legislation.

There's no direct link between education and pipeline plans. But to some, they're both symbols of the federal government's approach, said Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs. "The take-it-or-leave-it approach."

Does that perception matter for Gateway, if First Nations don't have a veto?

As a practical matter, the government will need the consent of some First Nations. The project won't meet the public's test without some buy-in. And it would be harder to get First Nations across Alberta and B.C. to publicly announce consent if Northern Gateway is a symbol in nationwide clashes with Ottawa.

For those who don't consent, Ottawa must still meet the legal requirements of a duty to consult. It must listen to concerns about the impact of the pipeline and have good-faith talks to try to find ways to address them. If there's a real impact that could seriously affect claimed lands, Ottawa must accommodate the concern – such as changing the route, increasing safety measures, or compensation.

That's where the duty to consult might amount to something close to a veto in some cases, Mr. Alexander and other experts have said.

First Nations along B.C.'s coastal waters argue that a single oil spill would devastate their land and communities – effectively wiping out their land rights. If the courts find that is a real concern, and the government can't offer a satisfactory way to accommodate it, perhaps through safety or clean-up measures, it might rule that the pipeline cannot go ahead, Mr. Alexander said.

In all the consultations, the government has to show the courts it is acting in good faith, taking First Nations concerns seriously, and acting with respect – Ottawa is required, according to the Supreme Court, to uphold the Honour of the Crown in the talks. That doesn't get easier if there's a broader strain with First Nations.

If there's one thing Mr. Harper should put on his checklist as he pushes his pipeline dreams, it's making sure that tensions with First Nations don't grow into a new era of confrontation with Northern Gateway as its symbol.