First Nations at centre of opposition
Courts have ruled that aboriginal communities must be consulted. Some First Nations have endorsed Enbridge project, signed on for benefits packages.
CONDITION 4: Legal requirements regarding aboriginal and treaty rights are addressed, and First Nations are provided with the opportunities, information and resources necessary to participate in and benefit from a heavy-oil project.
LEGAL REQUIREMENT:
In British Columbia, where governments have still negotiated few treaties with First Nations to settle their title to Crown land, legal precedence says aboriginal interests must be taken into account before resource developments can proceed. The Supreme Court of Canada's Delgamuukw decision deemed that in the absence of treaties, B.C. First Nations have aboriginal title to their traditional lands and must be consulted on and compensated for infringements to that title, such as in resource developments. Subsequent court rulings - key decisions being the Haida and Taku decisions of 2004 - determined that consultation and accommodation of aboriginal title is a Crown responsibility. However, the Taku decision in particular, determined that the Crown's off er of compensation or mitigation in the face of development can meet its duty to accommodate aboriginal interests even without the First Nation's approval.
HURDLES:
The federal government designated the National Energy Board's joint environmental and project review as the Crown's primary means of consultation for the Northern Gateway pipeline project, which was perhaps problematic for the process. Many First Nations refused to take part in the NEB joint review, and others that did remained wary of their participation being construed as accommodation of their interests.
An initiative called Save the Fraser Gathering of Nations has been the focal point of aboriginal opposition to oil pipeline development in B.C. Some 131 First Nations communities have signed on to its declaration. "It doesn't matter what route you take, you can't get a pipeline around opposed First Nations," Saik'uz First Nation chief Jackie Thomas said at a 2011 event.
The Saik'uz, part of the Yinka Dene Alliance, were among First Nations that didn't participate in the NEB review because it wouldn't be able to resolve issues of aboriginal title.
Coastal First Nations, the umbrella group for aboriginal communities on B.C.'s north coast, participated in the joint review, but executive director Art Sterritt said that was to officially maintain their opposition. In the end, Coastal First Nations withdrew from the joint review. "We might as well keep our powder dry for court," Sterritt said.
OPPORTUNITIES:
Enbridge, as its Northern Gateway project began to gain public profile, promoted it as an exercise in nation building and held out the chance for First Nations to take equity positions in the pipeline and opportunities for jobs and economic development. The company reserved a 10 per cent ownership stake in the project for First Nations and offered benefits packages to 43 First Nations inside a 160-kilometre-wide corridor along the pipeline's route. Enbridge offered to pay $280 million in payments to participating First Nations from their equity participation over the first 30 years of the pipeline's operations. In addition, the company expected First Nations would share in $400 million worth of employment opportunities, job training and procurement opportunities during construction of the $6.5-billion pipeline. Interim, non-treaty agreements have become commonplace in B.C. to share resource benefits with aboriginal communities. For example, the province and mining company New Gold reached an economic and community development agreement with three First Nations to share royalties and offer jobs and training related to the company's New Afton mine near Kamloops.
PROGRESS:
Enbridge has long claimed that it has support of 60 per cent of First Nations along its pipeline route. During the NEB joint review, Haida Nation testimony indicated that 11 of 27 B.C. First Nations and 15 of 18 Alberta First Nations signed on to benefit packages, though few have made their agreements public. And revelations that were made public have proved controversial.
In December of 2011, Gitxsan treaty negotiator Elmer Derrick's revelation that he had signed an agreement with Enbridge was met with widespread and vehement protests within the community, located in B.C.'s Interior. Gitxsan hereditary chiefs eventually voted to rescind the deal.
In recent months, the federal government has stepped up its efforts at consultation. Last March, Natural Resources Minister Joe Oliver appointed Vancouver lawyer Douglas Eyford as the government's special representative on West Coast energy infrastructure to engage with aboriginal communities. And in September, Oliver sent deputy ministers from several federal departments to continue that engagement, but to a tepid response.
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