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British Columbia Northern Gateway talks excluded First Nations’ governance rights

First Nations chiefs and leaders listen during a news conference about the Enbridge Northern Gateway pipeline in Vancouver Oct. 1. Multiple legal challenges aimed at overturning the federal government's approval of the pipeline project began being heard Thursday at the Federal Court of Appeal.

DARRYL DYCK/THE CANADIAN PRESS

Two First Nations waging a court battle to overturn approval of the Northern Gateway pipeline project say federal officials refused to discuss their claim of decision-making power over ancestral lands.

Lawyer Cheryl Sharvit said the Nadleh Whut'en and Nak'azdli are not declaring the right to veto resource projects on traditional territories in British Columbia's Central Interior.

But she said the bands' asserted authority to govern their lands should have at least been considered by the Crown during consultations on the $7-billion proposal by Calgary-based Enbridge Inc..

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"The scale of the potential harm from Northern Gateway in their territory is unprecedented. They have never faced a risk this great from their perspective from a single project," Ms. Sharvit said.

She said the Crown's refusal to first negotiate with the Nadleh and Nak'azdli "does serious damage to the goal of reconciliation and protection of aboriginal rights."

The Crown excluded the issue from the talks because it decided the question of control over First Nations' territories would be better dealt with in the treaty process, Ms. Sharvit said.

Eight aboriginal bands are in the Federal Court of Appeal in Vancouver to argue Canada violated its legal duty to consult with and accommodate First Nations before approving Northern Gateway. More than 200 conditions were attached.

The 1,200-kilometre twin pipeline would carry diluted bitumen from Alberta's oilsands to the coastal district of Kitimat, B.C., where tankers would ship it overseas.

The court is considering a total of 18 legal challenges during the hearing, which is set to conclude Oct. 8. Its outcome could have far-reaching implications for aboriginal authority over oil and gas projects.

Many First Nations in B.C. have not signed treaties and have unresolved land claims. But they argue a landmark Supreme Court of Canada ruling in June, 2014, giving the Tsilhqot'in Nation title to its territory means Ottawa must seek consent from First Nations to approve developments on their lands.

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Michael Lee Ross, a lawyer for the Gitga'at on B.C.'s northwest coast, said the Crown must make a "good faith" effort to win First Nations approval even if their title has not been recognized by a court.

He argued Canada's failure to seek agreement with the Gitga'at represents a failure to "uphold the honour of the Crown" and promote reconciliation.

Northern Gateway and the federal government are set to make their arguments next week.

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