Finally, a way to get a grip on consultations

Appointment of officer to oversee aboriginal interests breaks a logjam

Gordon Jaremko

The Edmonton Journal

Monday, December 04, 2006

Tony Fogarassy, a Vancouver lawyer who guides industry across aboriginal terrain, paints a vivid picture of legal and political swamps that bog down projects.

"The law is so amorphous that everybody is sort of walking in molasses. It's so hard to move forward. Nobody is sure if you're doing it right," Fogarassy said in an interview.

A better path is on the horizon. Pipeline sponsors may eventually reach solid ground on a trail being blazed this fall in Vancouver by the Federal Court of Canada, Fogarassy said.

The immediate result of Judge Michael Phelan's ruling was a victory for a protest lawsuit by the Dene Tha' in the High Level area of northwestern Alberta, which cast yet more doubt on the schedule for the $7.5-billion Mackenzie Gas Project.

But in the long run -- depending on how further court proceedings on implementing the decision and possibly a legal appeal turn out -- "it's a positive," Fogarassy said.

The ruling takes a first stab at answering one of the murkiest questions faced by corporations, natives and governments.

The question arises from a doctrine created by 1980s constitutional reform and recent rulings by the Supreme Court of Canada. First Nations inherit ancestral rights and everyone else has a duty to consult aboriginal communities affected by projects.

What does this big, noble idea mean in practice?

Apart from a battle over the legal principle, fought hard for the Dene Tha' by Victoria lawyer Robert Freedman, the Arctic natural gas megaproject is no revolutionary development for northern Alberta.

By industry standards, construction of the Alberta link will be a routine job. It will not introduce a new type of activity into the area, which has been a gas-drilling hot spot since the 1990s.

South of the Northwest Territories boundary the plan only requires a 103-kilometre connection from the proposed Mackenzie Valley pipeline to the top of TransCanada PipeLines. About one-third of the Alberta link goes into an existing TransCanada right-of-way.

About 400 tradesmen, housed well apart from aboriginal settlements in work camps on sites already used by industry, are expected to build the Alberta link in three to four months for $212 million.

The Mackenzie megaproject bogged down in Alberta by trying a path that only took into account federal and provincial jurisdictional niceties.

Government and industry leaders alike ignored Dene Tha' demands rooted in aboriginal rights claims. The group's heritage is an ancestral hunting and trapping territory that includes parts of northern British Columbia and the southern Northwest Territories.

A megaproject division of labour gave the Alberta link to TransCanada instead of the Mackenzie line ownership consortium of Imperial Oil, Shell Canada, ConocoPhillips, ExxonMobil and Aboriginal Pipeline Group. Approval of the southern connection was left up to the Alberta Energy and Utilities Board.

The 2,500 Dene Tha' are not renowned as hostile to business. Many work in industry. Their native government has a co-operation agreement with TransCanada and is a partner in five drilling rigs with Calgary contractor Western Lakota Energy Services.

But the Dene Tha' were infuriated because they were excluded when the National Energy Board and a dozen territorial and Arctic native authorities formed the Arctic megaproject's environmental joint review panel.

The Alberta natives were right, Phelan ruled, ordering the panel to stop all hearings that in any way touch on Dene Tha' interests until the community is brought into the process in a way that recognizes their aboriginal heritage.

The positive side of the decision is a route out of the dead end that the judge proposed and will be considered by further court proceedings about to begin in Vancouver, Fogarassy said. The idea is a first and has potential to mature into an improvement for all industrial projects in native areas, he added.

The potential native relations breakthrough is a recommendation to appoint a "chief consulting officer" when a project raises aboriginal rights issues, he said.

The special agent would be appointed in the planning stages of a project. A consulting officer would be akin to a chief negotiator in a land-claims case, with power to make all involved focus on issues raised by industrial plans.

The Dene Tha' ruling said: "A striking feature of this case is that while many government departments, agencies and boards were involved, no one seemed to be in charge or at least responsible for consultation with First Nations."

Passing the buck has to stop, the decision warned.

"It is necessary to fix some minister or person with responsibility, whose actions are subject to accountability in meeting the duty to consult," the judge wrote.

"The Crown -- the government -- needs to play a more effective role," agreed Kim McCaig, operations vice-president of the Canadian Energy Pipelines Association.

"We really do want regulatory certainty so we can understand how the process is going to work and we can make informed economic decisions," McCaig said in an interview.

"This is not just a Mackenzie project issue. In the broader (industrial development) context we're going to continue to have uncertainty until we figure out how to do this aboriginal consultation -- all of us, whether we are in industry, governments or the communities."

The federal government got the message. Indian Affairs Minister Jim Prentice late last week announced the appointment of Tim Christian, a former University of Alberta law dean and veteran aboriginal rights negotiator, as chief consultation officer for the Mackenzie project in the Dene Tha' region.

gjaremko@thejournal.canwest.com