Northern Gateway panel tangled in complex web of aboriginal rights, title

UNDATED, - A top Northern Gateway Pipelines official says the company is trying to balance the many competing interests in the project, and realizes it may be impossible to satisfy them all.

Federal review hearings into the $6-billion pipeline project continue Monday in Prince Rupert, where the three-person panel has been hearing about the company's aboriginal engagement and public consultation.

"I think it is important to understand this is a very diverse project. It's a very complex project. There's a lot of interests at stake," Janet Holder, leader of the Northern Gateway project team for Enbridge (TSX:ENB), told the panel last week.

The company has gone well beyond what it believes is required, she said, but the 1,200-kilometre pipeline is "a very challenging project to try to incorporate everybody's interests.

"There are some interests that are impossible for us to incorporate, and we get that," Holder said under questioning by Rosanne Kyle, lawyer for the Gixaala Nation.

Getting First Nations on board has proven to be a difficult task for the Calgary-based pipeline company, exacerbated by Ottawa's decision to designate the environmental and regulatory review as the primary means of Crown consultation.

"The federal government would not support a process for aboriginal consultation separate from the (joint review panel) process...," said an internal Aboriginal Consultation Plan obtained by The Canadian Press using an Access to Information request.

John Carruthers, president of Enbridge Northern Gateway Pipelines, said about 60 per cent of aboriginal groups affected have signed equity agreements. He said efforts to engage aboriginal groups are ongoing and will continue after the panel issues its report.

"It would be 100 per cent. I'm not saying that that's probable," Carruthers said.

"They have issues we need to address, so we want that dialogue, but we see there is tremendous potential for the project to add positive benefits to communities. We think it's important to build long-term relationship with communities."

At least one First Nation has already filed a constitutional challenge with the review panel, and the federal and provincial governments, questioning the legality of a panel decision that it claims infringes on aboriginal rights.

"We're treated as a stakeholder in this process," said Carrie Henchitt, lawyer for the Heiltsuk Nation. "We are not just stakeholders. We have specific rights very different from other interest groups."

The hearings on aboriginal consultation are proceeding without the participation of Coastal First Nations, which withdrew from the process last month saying the group was out of money and faith in the process.

Federal officials were warned two years ago that underfunding for aboriginal groups could undermine the consultation plan.

A November 2010 Canadian Environmental Assessment Agency memo, obtained using Access to Information, noted that courts have not ordered government to fund aboriginal participation, "however, underfunding consultation could still have adverse legal consequences for the Crown."

More than $17 million was requested by aboriginal groups in B.C. and Alberta. Approximately $5 million has been allocated. Northern Gateway also provided funds to about 45 aboriginal groups for studies and participation.

Additional money was allocated but Art Sterritt, executive director of Coastal First Nations, said it wasn't enough.

"That will never hold up in a court," Sterritt said. "There are many First Nations that weren't able to afford to be there to start with. They've never even been in this room."

The tangled web of aboriginal rights and title in B.C., where most First Nations do not have treaties with the Crown, has further complicated the already controversial pipeline proposal.

First Nations lawyers have pressed the company's expert panel for detailed answers about title and rights.

"We do explain very clearly in our application what we refer to as rights. Title is not something that we have ever taken a position on at any point in time," Holder said during questioning.

"That is something between First Nations and the Crown... We've taken a practical position with regards to rights and title and the title aspect needs to be left between yourself and the Crown."

The panel has until the end of the year to issues its report and recommendations.