Northern Gateway has Ottawa scrambling to avoid lawsuits

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Within three hours of the Joint Review Panel's announcement giving conditional approval for the proposed Northern Gateway pipeline, the Lake Babine First Nation threatened the lawsuit it has been preparing for months.

The band has already retained one of the top aboriginal law experts in Canada, setting the stage for a court fight the federal government is working feverishly behind the scenes to stave off.

Jack Woodward literally wrote the book on native law in Canada. His Consolidated Native Law Statutes, Regulations and Treaties has been in publication since 1989. He will represent Lake Babine and says of all the opponents of the project, even those with better financial means, the law gives First Nations more leverage.

"The only people with constitutional rights to fight are the First Nations," Mr. Woodward noted in an interview.

The Crown is legally obligated to consult, and sometimes to accommodate First Nations on land and resource decisions that could impact their aboriginal interests. But the law of the land has not set out precisely how that should take place or at what point that duty is fulfilled.

In tacit acknowledgment of that looming question, Natural Resources Minister Joe Oliver has promised to talk with First Nations before taking the ultimate decision on the pipeline to cabinet. His office is now sending out letters to the 45 aboriginal communities along the path of the pipeline or the oil tanker route offering consultation in the next six months.

Unresolved land claims along the pipeline route in British Columbia open the door to court challenges, potentially throwing a wrench in the time-sensitive need to find new markets for Alberta's landlocked oil. Enbridge could win regulatory approval and still face a veto in all but name thanks to the uncertainty.

Generally, First Nations have no explicit veto power, but top native law experts believe multiple court challenges to this project are inevitable. These cases will rely heavily on the argument that the Crown has not fulfilled its obligations to consult. Since 2007, Ottawa has used the regulatory review process on natural resource projects such as Northern Gateway to stand as its aboriginal consultations.

The question will be raised, does that amount to good-faith negotiations?

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 an expert in native law to draw a road map for energy projects in the West.

Doug Eyford, in his report this month to the Prime Minister, said "deep" consultation for major resource projects is required, it needs to begin much earlier in the process, and Ottawa shouldn't try to delegate the job. (In fact, some First Nations deliberately eschewed the Joint Review Panel hearings – they argue the hearings do not constitute consultation with the Crown.)

"An unintended consequence is that the formality of environmental assessments inhibits Crown-aboriginal dialogue. It is costly for aboriginal communities to participate, the focus is often technical, and the process can be time consuming," he wrote. "Further, the joint panel review for the Northern Gateway Pipeline project demonstrates how regulatory processes can turn into adversarial proceedings damaging relations between the Crown and industry on one hand, and aboriginal communities on the other."

The threshold for consultation, he argued, is much higher than the current model.

First Nations are expected to argue that the Enbridge Northern Gateway project threatens their interests – such as fishing or hunting rights within their traditional territories – and their interests have not been duly considered.

But the joint review panel largely dismissed those concerns, saying that "during construction and routine operations, the project would not have a significant adverse effect on the ability of aboriginal people to use the lands, waters, and resources in the project area for traditional purposes." Even if there is a major oil spill and First Nations' interests do suffer, the panel concluded, "we found that these adverse effects would not be permanent and widespread."

Judith Sayers, an assistant professor of law at the University of Victoria and former chief of the Hupacasath First Nation, said case law sets a higher bar than that.

"We have the ability to stop the project," she said. "I just heard Joe Oliver saying they are going to consult but they want this project to go ahead. I think most First Nations will wait to go to court until the cabinet has made its decision … and then I see a lot of lawsuits going in."

But Mr. Woodward noted that although the process is sure to get bogged down, the aboriginal groups can't take it for granted that they'll win. "It's a juggernaut," he said. "They are facing the might and power of the biggest industrial corporations and the federal and provincial governments.… It's a disgraceful imbalance of power."