The Harper government is gearing up for an intense few months of consultations with aboriginal communities on the contentious Northern Gateway pipeline proposal. The goal: to win their support – and, where that's not possible, to lay the groundwork for a successful defence in a likely First Nations court challenge.
In a letter dated Dec. 8, federal officials informed aboriginal leaders who participated in the National Energy Board's review hearings that formal discussions aimed at satisfying Ottawa's constitutional duty to consult and accommodate their concerns would begin early in the new year. However, the letter from the Canadian Environmental Assessment Agency warned that the scope of the consultations would be limited to the pipeline project itself, and not get bogged down in the long-running effort to conclude treaties with B.C.'s First Nations.
Natural Resources Minister Joe Oliver said this week the government recognizes it still has much work to do to fulfill its duty toward aboriginal communities, but Ottawa has also been preparing for a legal battle. The minister has held more than 20 meetings with aboriginal communities in British Columbia about resource development generally; the government appointed Vancouver lawyer Doug Eyford to report on how to win native support for development. It is also been preparing to launch a formal round of talks, that it says will fulfill its duty to consult.
When the Harper government imposed a deadline on the NEB panel in 2012, it also streamlined the appeals process by requiring any challenge to go right to the Federal Court of Appeal, rather than the more lengthy route through the federal court's trial division.
First Nations leaders and their lawyers say Enbridge Inc.'s proposed $7.9-billion Northern Gateway will almost certainly land in court, and will likely end up in the Supreme Court of Canada. The latter would not only determine the project's fate but could provide some clarity to aboriginal rights to block resource projects on their traditional territories.
Government and industry are eager to win aboriginal support for resource development, recognizing that confrontation and lengthy legal battles can create a gridlock in which projects get stalled. The proposed Northern Gateway pipeline would deliver 520,000 barrels a day of oil-sands bitumen to the B.C. coast, opening new markets for the Alberta-based industry. The NEB panel concluded that opening the Pacific Basin market is in the national interest, though it recommended 209 conditions to address environmental, safety and financial issues.
But aboriginal leaders insist the pipeline will never get built, and some have warned of confrontation if Ottawa pushes ahead over their objections.
The legal challenges could begin as early as late January, when participants must file their request for judicial review of the NEB panel report itself. Or aboriginal leaders may wait until June, when the federal cabinet takes its final decision, expected to be an approval.
Because they have no treaties, B.C. First Nations still claim title to the land, and will likely challenge the expected federal approval as an unwarranted intrusion on their unextinguished title. Separately, they will argue that Ottawa failed in its duty to consult and accommodate First Nations' concerns, saying the government approached the consultations with a predetermined outcome.
"The courts have said that, for duty of consult to be met, the government has to come at the decision with an open mind and not with a view to persuade the aboriginal people one way or another," said lawyer Robert Janes, who represents the Gitxaala Nation. "It's pretty hard to read what Joe Oliver and the Prime Minister have been saying for the last four years without having a pretty clear view about what their view is."
Last spring, when the federal government recognized that the process was heading off the rails because of growing First Nations opposition to Northern Gateway, Prime Minister Stephen Harper appointed Mr. Eyford, an expert in native law, to draw a road map for energy projects in the West. In his report this month, Mr. Eyford said "deep" consultation for major resource projects is required; that it needs to begin much earlier in the process, and that Ottawa shouldn't try to delegate the job to industry or the provinces.
In an interview on Friday, Mr. Eyford said he expects Ottawa will be challenged in court to prove that the panel process meets the courts' definition of good-faith negotiations.
"The Crown needs to address the expectations of First Nations that they will be involved in project planning and decision-making," he said, "and Enbridge needs to step up and reach out to the aboriginal communities in an effort to form more productive relationships."
In his report, Mr. Eyford said the Enbridge hearing was a good example of how Ottawa's approach isn't working.
Editor's note: A previous version of this story incorrectly suggested that the federal government's discussions and report by Vancouver lawyer Doug Eyford with First Nations on energy development in Western Canada were part of its formal duty to consult with aboriginal communities. In fact, that work is separate from its formal duty.