PM vows to consult natives on pipeline project

Rae doubts NEB hearings meet constitutional obligation

Prime Minister Stephen Harper said Monday his government recognizes and will honour its constitutional obligation to consult with First Nations on the Northern Gateway pipeline linking the Alberta oilsands to Asian markets via the northern B.C. coast.

But a Harper government official said the main tool for those consultations will be the National Energy Board hearings, which interim Liberal leader Bob Rae and one legal expert said may be inadequate.

“It’s a constitutional obligation to consult aboriginal groups. The government is going to respect this obligation,” Harper told the House of Commons, adding his much-repeated declaration that Canada must find a way to get diluted bitumen to energy-hungry countries such as China.

“It is vitally important to the national interests of this country that we are able to export our energy products to Asia and, obviously, that is something the government hopes will happen in the future.”

A spokesman for Harper confirmed that the NEB is the main consultation tool, noting that the government gave $2.39 million to a number of First Nations in B.C. and Alberta to assist in their participation.

“We have specifically encouraged aboriginals to make use of the hearings as their means of consultation. Indeed, some of the hearings are taking place on reserves along the route,” said Andrew Macdougall, Harper’s associate director of communications.

But Rae said the government is wrong to assume that aboriginal participation in the NEB panel hearings sufficiently meets the consultation requirement as set out by the Supreme Court of Canada.

Rae warned that the government is opening the door to claims that First Nations weren’t given a fair hearing on Enbridge Inc.’s $5.5-billion project.

“This thing is going to get caught up in masses and masses of litigation unless this government takes this issue more seriously,” he told reporters. “It’s not a slam dunk.”

The government has to “understand that in some cases without the clear approval of the aboriginal community affected, what are they going to do? Expropriate people’s lands? They have to understand what is at stake in this process.”

Rae said consent may be required if aboriginal title to land along the 1,170-kilometre pipeline route is “absolutely clear.”

The Crown’s duty to consult before “infringing” on constitutionally protected aboriginal title is spelled out in the Supreme Court’s landmark Delgamuukw ruling in 1997 involving the claims of two B.C. First Nations. “There is always a duty of consultation,” the court ruled.

“Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown’s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law,” the judges wrote. The Crown must consult in “good faith and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation.”

The terms of reference for the NEB panel says the three members “will receive information from aboriginal peoples related to the nature and scope of potential or established aboriginal and treaty rights that may be affected by the project and the impacts or infringements that the project may have on potential or established aboriginal and treaty rights.”

University of Saskatchewan law professor Dwight Newman, a specialist on aboriginal law and the duty to consult, said decisions by both the Supreme Court and the Federal Court of Canada lend support to the notion that the NEB panel is sufficient.

“It’s plausible … to think that the NEB review might fulfil all ‘duty to consult’ obligations, at least in the absence of specifically articulated reasons to think otherwise,” Newman said in an email. But he added that a large-scale project like Northern Gateway, “if likely to have major adverse impacts on aboriginal rights, would sometimes require a more interactive consultation process” than what is provided during an NEB panel review.