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Landmark Canadian Ruling Limits Power to Block NGTL Gas Pipeline Expansion

A landmark native rights verdict has preserved access to Canada’s richest unconventional natural gas formations in northern Alberta and British Columbia (BC) by limiting tribal power to block pipeline construction.

The Canadian Federal Court of Appeal upheld regulatory and political approvals for a cornerstone of the C$7.2 billion ($5.7 billion), multi-year expansion by TransCanada Corp.’s western supply collection grid, Nova Gas Transmission Ltd. (NGTL).

A three-judge appellate panel dismissed a claim by the Bigstone Cree that the National Energy Board (NEB) and the federal cabinet failed to satisfy constitutional requirements for native consultation, accommodation and permission.

The unanimous verdict sustained all aspects of a 187-page ruling that authorized the recently completed C$1.7 billion ($1.3 billion) 2017 stage of the NGTL program, which added capacity of 443 MMcf/d to the gas grid.

The judges ruled the authorities and the pipeline fulfilled native rights in 36 approval conditions adopted after providing Bigstone with two years of consultations supported by C$260,500 ($208,400) in participation and study grants.

An adverse verdict could have generated large compensation claims and blocked further stages in the NGTL program, which caters to growing production from the liquids-rich Montney and Duvernay gas formations that straddle Alberta and BC.

From a native center at Wabasca, 300 kilometers (180 miles) north of the Alberta capital in Edmonton, the Bigstone Cree belong to a tribal coalition called Treaty 8 that claims traditional territory, including oilsands as well as gas development regions.

“The duty to consult is not unlimited in scope and does not confer a veto power on any First Nation” recognized native community, said the ruling. The Crown government “is not to be held to a standard of perfection; so long as reasonable effort to inform and consult has been made, the duty to consult will have been discharged.”

The ruling accepted current native relations practices: early consultation on projects, subsidized environment and tradition studies, special oral tribal knowledge hearings, participation grants and extra cabinet review prior to ratification of regulatory approvals.

The favorable verdict on the native aspect of NGTL’s pipeline capacity addition program said “existing regulatory processes are reasonable and a practical means of undertaking consultation, and Aboriginal groups have a responsibility to make use of such processes if they wish to voice their concerns.”

 

 

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