The path ahead for Enbridge's Northern Gateway pipeline project and other resource development proposal became even more convoluted last week after the Supreme Court of Canada reshaped B.C. with a momentous decision on aboriginal land title.
For the first time, the justices decided to recognize and flesh out aboriginal title to a portion of land. In establishing the Tsilhqot'in First Nation's ownership of 1,750 square kilometres of land near Williams Lake, the court did two things: it offered a path for a First Nation to claim large expanses of territory it used to hunt, fish and do other traditional activities, rather just than small areas where they may have lived; and it adds the value of obtaining consent from affected First Nations when it comes to resource development.
In Tsilhqot'in, the power of consent is tied to title - government and project proponents must get a First Nation's OK to use land to which they have an established title, with some significant caveats; on land to which title has not been established, government and proponents have a duty to consult and accommodate aboriginal interests with their proposals.
Tsilhqot'in has made the path to aboriginal title broader and easier. It also places a renewed premium on a First Nation establishing title because it brings with it an obligation to obtain consent rather than the duty to consult alone.
The closer a First Nation approaches recognition of its title, the more extensive the level of consultation and accommodation needed to fulfil the duty to consult - what the court calls "a spectrum of duties applicable over time." Further, if title is recognized, the Crown would have to consider if what it did before recognition was sufficient now that title is established: "it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing."
For the Northern Gateway pipeline through northern B.C. and other controversial projects, the retroactive nature of title now adds a fresh arena for a legal action for those who oppose it. On the other hand, the court was clear that obtaining consent from a First Nation for a project before or after title is recognized allows a government or proponent a means to avoid lengthy legal battles regarding infringing a First Nation's rights or the duty to consult.
In a different world, the new reality of aboriginal title and the more tangible power of consent after Tsilhqot'in could be the foundation of a grand bargain between government, First Nations and Enbridge regarding Northern Gateway: government could recognize or significantly expedite the establishment of aboriginal title along the pipeline route in exchange for consent from affected First Nations on the bitterly divisive project. Such an agreement is not as palpably ludicrous as it seems - witness Gordon Campbell's Road to Damascus turn in aboriginal relations - and would transform the investment climate in the region by providing clear lines for resource developments without the need for years of legal recourse.
That's the skeleton key hope - that the Northern Gateway project becomes a solution to aboriginal reconciliation and unlocks the economic potential of northern B.C. through a new relationship with First Nations, business and the Crown. However, the mass of audacity, political capital, trust, and mutual respect between all sides required for that grand bargain is simply not present; indeed, the level of animosity between many B.C. First Nations, Enbridge and federal government hasn't just poisoned the well to that deal, it's fracked it.
More likely, Northern Gateway will continue as a stalking horse for aboriginal reconciliation, pushed relentlessly forward by the hubris of Stephen Harper's Tories and Enbridge's lust for tidewater. Serving as both an impetus for legal action and a cautionary tale, it will plough on, absorbing countless slings and arrows, legal or otherwise, paving the way for the projects that follow.
To be sure, the Tsilhqot'in decision does not give First Nations a blanket veto on either Northern Gateway or development in general - if the Crown has a "compelling and substantial objective" it can override a First Nation's lack of consent, even if there is title. However, the Crown would no doubt have to prove that objective in court and the court writes "to constitute a compelling and substantial objective, the broader public goal asserted by the government must further the goal of reconciliation." It's hard to say how ramming a pipeline down the throats of recalcitrant First Nations would further anything but spite.
For Northern Gateway, the prospect of a single runny ball of diluted bitumen passing through an Enbridge pipeline on its way through northern B.C. became even more remote last week. Tsilhqot'in both strengthens existing legal actions and offers a variety of fresh and future avenues that could be brought against the controversial project by First Nations who are vehemently opposed to it.
However, for projects that are not so polarizing and where consultations with First Nations are not so fundamentally fractured, Tsilhqot'in offers a clear choice: obtain consent or tread an increasingly fraught, increasingly complex legal path.
