To the suits sneaking past the first nations' drummers protesting a new oil sands pipeline at Enbridge Inc.'s shareholder meeting in Calgary this week, it was easy to dismiss the demonstration as little more than a sideshow.
But as the demonstration carried on, Jim Prentice, the former federal minister of Indian Affairs and Northern Development, was inside a hotel across the street, warning after a speech that those drums pack a powerful beat. In fact, first nations opponents, he said, wield substantial power over projects such as Enbridge's proposed $5.5-billion Northern Gateway pipeline, the biggest in its history.
Legal experts go even further. The people banging those drums, some argue, have the constitutional clout to put up insurmountable obstacles for the proposed Northern Gateway – namely, a messy legal debate around unsettled land claims along the route that will likely be decided by the Supreme Court of Canada.
The implications of the high-profile clash between a cohesive group of first nations opponents and industry over Northern Gateway extend far beyond the 525,000 barrels a day of Alberta oil that are at stake. Mining, forestry and other projects face mirroring challenges, pitting industry against first nations land claims and their call for environmental protection.
Mr. Prentice and various experts back what first nations in British Columbia have long argued: That the future of Northern Gateway and other industrial projects hinges on much more than regulatory approvals. They must secure first nations support for projects, which Enbridge's promise of some $1-billion in native benefits has failed to do. Instead, it has strengthened already fierce opposition.
"One of the great public policy failures in Canadian history was the failure to actually execute land claim treaties and, in a sense, titlement, in British Columbia over of course of the last 150 years," Mr. Prentice, now a vice-chairman at Canadian Imperial Bank of Commerce, said.
"And so the reality on the ground is that the constitutional and legal position of the first nations is very strong."
Threats of a legal fight have already emerged, especially as native groups look to a series of high-profile spills – including two in the U.S. last summer from Enbridge lines – as evidence that pipelines pose substantial environmental risk.At Enbridge's meeting Geraldine Thomas-Flurer, who co-ordinates the anti-pipeline Yinka Dene Alliance, warned chief executive officer Pat Daniel of what is to come. She referred to the Canadian Constitution, and its recognition of aboriginal rights and title.
"We're not going to give up," she said. "You're going to risk legal, social and environmental factors. … Because yes, there is a liability that's happening."
Mr. Daniel has acknowledged that it would be "naive" to think that Gateway can garner unanimous support. But he has repeatedly argued that Enbridge can and will bring the line into service – and said he thinks it can sway some aboriginal opinion – despite the growing rancour.
"We think we can build it," he said. "We think there are huge benefits not only nationally but also regionally on this project."
The absence of treaties, combined with a slate of constitutional rights, is what gives first nations in British Columbia more power than bands outside its borders.
"The result of that is a great deal of uncertainty and there's no way around that uncertainty other than to work through the details," Mr. Prentice, who supports opening up Asian markets to Canadian crude but stopped short of specifically referring to the 1,172-kilometre Northern Gateway pipeline, said in an interview after his speech.
Companies negotiating with first nations in B.C. must "recognize [their constitutional and legal position] and treat them as equals at the table."
But this negotiating process is what will trigger a long legal battle, said Rodney Nelson, a professor of Canadian studies with expertise in aboriginal issues at Carleton University in Ottawa. A sticking point in any negotiations will be the legal obligation of the "duty to consult," an undefined provision in the Constitution Act.
Consultation now happens to varying degrees. Town hall meetings, for example, may be considered consultation to some, but that does not necessarily mean host companies fulfilled their "duty to consult." Negotiations, however extensive and thorough, that end in a stalemate, can also be challenged as failing to meet the "duty to consult" standard. If first nations feel cheated at this point, arbitration will likely start, followed by provincial and federal lawsuits involving companies and the Crown.
"I think it is inevitable" that the Northern Gateway standoff will end up in the Supreme Court, Prof. Nelson said.
He's not alone. "There's ammunition on the first nations side that allows them to wage a very long struggle," said Gordon Christie, an associate professor of law at the University of British Columbia who specializes in first nations legal issues.
How that struggle plays out depends in part, of course, on the will – and the financial ability – of first nations to maintain a court fight. But unsettled land claims, and the uncertainty over land title they foster, have created enough of a "legal mess" that "they could probably drag it out so long that it just becomes economically not a project to follow through on," Prof. Christie said.
This legal power could translate into a de facto veto, by drawing out the process and substantially increasing costs.
Observers have drawn comparisons with the Mackenzie Valley natural gas pipeline, which was first proposed in the 1970s, again with northern first nations presiding over unsettled claims. A federal inquiry at the time recommended the 1,196-kilometre Arctic pipeline not be built for at least 10 years, to allow a chance for settlement of those claims.
It took more than two decades for industry to launch its most recent effort at reviving the project – but even then, the one claim that remained unsettled for the Dehcho people has created a substantial development obstacle.
Today,almost 40 years after the now $16-billion pipeline was proposed, a large segment of the natural gas industry believes the project, led by Imperial Oil, won't be built because it no longer makes financial sense given the vast quantities of gas that have since been discovered in places like British Columbia and Texas.
Having won the support of first nations groups, the Mackenzie consortium is waiting for the federal government to dish up financial help now that it has cabinet approval.
"Even if it turns out that only 10 of the 50 [first nations] communities [along the Gateway route] are willing to dig their heels into the ground, it would create something that would be just as messy as the pipeline to the North," Mr. Christie said.
A long history of inaction
Nothing has come quickly in the struggle for British Columbia's first nations to gain rights over the land they claim. To gain a sense of how difficult this issue has been, it's worth casting a gaze far back in history. First contact between Europeans and B.C. first nations happened in 1774. It took 75 years before land negotiations began. Around 1850, James Douglas, then the governor of Vancouver Island, set out to sign treaties. He succeeded in inking 14. The terms were not especially generous. For example, he paid 45 kilograms in goods to secure 130 square kilometres of the island's Saanich Peninsula. But the British Crown soon put a stop to even those anemic payments, and the treaty process ground to a halt.
In the nearly 150 years that followed, only one other treaty was signed on B.C. soil. That was Treaty 8, which covered part of the province's northeast. Commissions were called in 1876 and 1913, but failed to settle issues. Gold miners came, as did smallpox. Relations between outsiders and first nations grew increasingly tense.
It was not until 1972, with the Supreme Court's Calder decision fought by the coastal Nisga'a, that aboriginal title to land was recognized. Even then, it took until 1998 for the Nisga'a to reach a final agreement on a treaty settlement. Two years later, it came into effect.
Efforts to reach similar agreements with other first nations have, however, proven difficult.
"It only seems to only be that when [disputes] have tremendous economic implications such as a major energy project that we begin paying attention to something that exists all across the entire country," Shawn Atleo, National Chief of the Assembly of First Nations, said in an interview Thursday.
For Canada to secure its place as a resource superpower, Chief Atleo said a fresh national framework affirming title rights is needed in order to settle disputes. "At the rate and pace we're going, this is going to take far too long."
Sixty first nations are now working their way through a process created by the B.C. Treaty Commission. Of those, 34 are negotiating on an agreement-in-principle. Three have completed final agreements. Only two, the Tsawwassen First Nation and Maa-nulth First Nations, have implemented their final agreements.
That means that, with only three exceptions, the situation in B.C. today remains little changed from 1899, when Treaty 8 was signed. Vast parts of the province remain locked in a battle over land rights.
And without settling land claims and developing a system that upholds and honours aboriginal title, Chief Atleo warned that mining, energy, forestry and other projects could endlessly be stymied.
"What we have is the potential for perpetual and repeated conflict," Chief Atleo said. "That doesn't do anyone any good. It has an adverse impact on not only relationships but overall the economy."
"Something needs to be down to break the logjam in these negotiations."
Nathan VanderKlippe and Carrie Tait
Source: B.C. Treaty Commission and The Union of B.C. Indian Chiefs