First nations don’t have a pipeline veto, but they do have options – by Tom Flanagan (Globe and Mail – February 21, 2012)

The Globe and Mail is Canada’s national newspaper with the second largest broadsheet circulation in the country. It has enormous influence on Canada’s political and business elite.

Tom Flanagan is a professor of political science at the University of Calgary. He has managed campaigns for the Conservative Party of Canada and the Wildrose Party of Alberta. He is co-author of Beyond the Indian Act: Restoring Aboriginal Property Rights.

The Conservative government has shown that it favours Enbridge’s proposed Northern Gateway pipeline to carry bitumen from Alberta’s oil sands to the B.C. deepwater port of Kitimat. Despite this open support, there’s a risk that the Northern Gateway proposal could go the way of the Mackenzie Valley pipeline – ultimately approved in principle but held up so long it never gets built, because the market has found alternative options.

About 50 first nations lie in Northern Gateway’s path. Consultation with these first nations will be critical, so let’s look at the legal framework.

In the 1997 Delgamuukw case, the Supreme Court of Canada held that aboriginal title still exists across British Columbia where treaties have never been signed. That includes most of the province except for the northeast, where Treaty 8 was negotiated in 1899-1900. The court ruled that aboriginal title had not been extinguished by B.C.’s course of dealing with indigenous people, even though the government had assigned them to reserves and granted to others the lands on which they used to live.

The court, however, did not designate aboriginal title to specific tracts of land; that remains to be worked out in the B.C. treaty process. The first nations, meantime, have a right to be consulted about economic development projects that might affect the value of their claims to aboriginal title. The government can’t authorize trees to be cut, fish to be caught, and minerals to be dug, then say, “Okay, it’s your land now.” Consultations must be full and thorough, accommodation to first nations’ concerns must be made where possible, and compensation must be paid where interests are damaged.

But – and this is a crucial point for Northern Gateway – first nations do not have a veto. The court was very clear in Delgamuukw that “the building of infrastructure … can justify the infringement of aboriginal title.” Consultation, accommodation, compensation? Yes. Veto? No.

For the rest of this column, please go to the Globe and Mail website:

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