The issue that could be at the heart of future Aboriginal litigation regarding the proposed Northern Gateway pipeline bubbled to the surface during National Energy Board hearings in Prince Rupert this week.
Haida Nation laywer Terri-Lynn Williams-Davidson spent much of her time in front of the Northern Gateway Aboriginal and public consultation panel asking how her clients title rights were considered in the company's application to build a pipeline between Alberta's oilsands and Kitimat.
"We werent questioning title or werent making determination of title," Northern Gateway president John Carruthers replied. "We [worked] from a respectful process of trying to understand the issues and concerns, provide information to the communities so that they could have a more informed basis for making their considerations, getting the traditional knowledge and then addressing those concerns. So where we went was not trying to determine [title] because then there's overlapping rights as we go through the project."
First Nations title claims could be an issue if the federal government approves the $6.5 billion pipeline and Aboriginal groups challenge the decision in court.
The Aboriginal and public consultation panel is the second last group of Northern Gateway witnesses to appear in front of the Joint Review Panel during the cross-examination phase. The Haida were the first of 10 Aboriginal groups expected to ask questions. Three non-Aboriginal groups have also signed up to ask questions.
Williams-Davidson also wanted to know if Northern Gateway acknowledged the Haida Nation's
right to determine how resources were managed in its traditional territories.
Northern Gateway witness Jeffery Green replied that the company believes routine operations of the pipeline would have no effect on other resource usage and in the event of a spill the company would compensate those affected.
Williams-Davidson also asked a series of questions related to how the consultations were conducted and what Northern Gateway did with the information it received after meeting with people from the Haida Nation.
"We do acknowledge that we have been listening to what the Haida Nation has been saying," Enbridge vice-president for western access Janet Holder said. "And that we have been present at the oral hearings, we have documented the discussions that we have had with the Haida Nation. So clearly we have tried to engage, we recognize the difficulties in engaging. We also understand what it is the Haida Nations been trying to say."
The hearings will continue all week.