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CALGARY – This month’s interprovincial tussle over the Northern Gateway is just the beginning, experts say: The pipeline could face sabotage and a legal morass that would challenge the limits of aboriginal law and sovereignty over disputed lands.
“[It is] difficult to foresee a quick completion of this pipeline,” said Tom Flanagan, former advisor to Stephen Harper and a professor of political science at the University of Calgary. ‘‘The difficulties are very real and they’re large.”
The federal Joint Review Panel is expected to rule on the Enbridge-proposed pipeline, to run from northern Alberta to Kitimat B.C., by the end of 2013.
If approved, Enbridge would negotiate for access to the lands along the route, about 80% of which is provincial crown land. Much of the line would also run through territory claimed by First Nations groups, who are promising both legal obstacles and physical blockades.
Merle Alexander, a Vancouver-based lawyer who specializes in aboriginal law, equated the process to a chess match.
“It’s essentially going to be a legal war of attrition,” he said.
The company said it has been negotiating with First Nations groups for years, but if Enbridge could not find an agreement with aboriginal leaders, the federal government would have the authority to expropriate — a murky proposition when balancing the rights of aboriginals.
“First of all, the leadership in these bands have convinced themselves that they own this land rather than that they have a claim to it,” said Mr. Flanagan, who has written widely on First Nations issues. According to law “it’s crystal clear that the government has the right to authorize projects with payment of compensation for any damage to the value of the claimed land.”
Enbridge has a constitutional obligation to consult native groups affected by the pipeline. But what defines consultation — whether that means providing information, promises of collaboration, or obtaining consent — remains untried.
“The Supreme Court has ruled consultations to be inadequate or too hasty, or that there was not enough information at the table or that they didn’t seem to be sincere,” he said. “There’s no clear standard on what constitutes adequate consultation.”
Affected First Nations groups could apply for court injunctions arguing inadequate consultation. Or they could sue for potential damages against claimed lands.
Even if they lost, these suits could hold back the project as claims wend their way through trial and appeals.
Further, each of the more than 40 groups that have made land claims along the corridor would have the right to its own separate negotiations, Mr. Flanagan said.
For the rest of this article, please go to the National Post website: http://news.nationalpost.com/2012/07/31/first-nations-showdown-could-be-northern-gateway-pipelines-biggest-obstacle/