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Opinion Tsilhqot’in ruling brings clarity – but also surprises

The Northern Gateway pipeline, on which the industry and the governments of Canada and Alberta had reposed so much hope to get bitumen oil to Asia, will soon be dead.

It's too early for the requiem for the project to move oil from northern Alberta through B.C. to Asia, because Northern Gateway has not been officially pronounced without life. But it's just a matter of time before the onset of rigor mortis, a condition created by generalized opposition in British Columbia and, of greater consequence, opposition from some aboriginal groups whose legal power just soared courtesy of the Supreme Court of Canada.

That decision, in a case involving the Tsilhqot'in Nation, gives aboriginals a de jure veto over any development on land where they have title, and a de facto veto, or something very close to one, over land where they claim to have title, even if not confirmed.

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Previous rulings had said aboriginals should be consulted (whatever that meant) and their interests "accommodated." Aboriginals interpreted these words to mean their approval was required, no matter what the law actually said. Now, the law says their approval is required if title is established, and approval is all but required even if they just claim title.

True, the court says that in certain conditions, the Crown can act without aboriginal approval. But the conditions are vaguely defined and will be very, very hard to meet.

So, quite predictably, aboriginal groups in the area where the proposed Northern Gateway pipeline would end are heading to court to insist that they have title in the area, so no project can proceed over their objections. At the very least, these cases will tie up Northern Gateway in the courts for a long time. Quite probably, they mean the end of the project.

The National Energy Board conducted extensive hearings and eventually approved Northern Gateway, subject to 209 conditions. Everyone and his or her brother had a chance to be heard – no matter for aboriginal groups that don't want the pipeline.

They insist they were not "consulted," which means in essence they didn't get the decision they wanted. They have construed being "consulted" as meaning they must give their consent, even though in plain English and in law the two concepts are different.

The recent Supreme Court ruling is based on a case in territory without treaties (most of B.C.), but it has already galvanized claims across the country where treaties do exist, with more claims to come. In Eastern Canada, aboriginal groups are already beginning to investigate whether their treaties would give them title over lands they once occupied.

New Brunswick's Elsipogtog First Nation, which opposes seismic testing to determine shale gas reserves on land they claim, intend to use the Supreme Court ruling to stop all further testing, even though discovering the extent and challenges of exploiting the province's shale gas would strike any government as a necessary piece of public business in the interests of all citizens.

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In Quebec, Algonquins in La Vérendrye Park have already said the decision means the provincial government must give them access to forest reserves they had claimed belonged to them.

It has been argued that the Supreme Court ruling brings "clarity" to previously murky understandings of what constitutes aboriginal title and what rights flow from that title. It will also bring potential development projects – Northern Gateway is but one example – to a halt or thrust them into long periods of delay that many companies will not wish to endure.

As with everything involving First Nations, the ruling will be interpreted differently and play itself out depending on the groups in question. As has been on display for months with the implosion of the Assembly of First Nations, and again this week in Halifax at a meeting of aboriginal chiefs, there are vast differences among the chiefs. This works against any coherent plan to create something new to replace the AFN.

Whatever happens, the chiefs' power will continue to make life miserable for whoever is chosen to lead. And with or without a new national organization, the Supreme Court has now put considerably more legal power in the hands of aboriginals and their leaders in a way that will greatly surprise governments and their electorates.

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