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Native Groups Impede Fort Nelson Project

A squabble has broken out in British Columbia (BC) as a sharp reminder to natural gas producers that they are treading on tricky ground as they expand supply development northwards.

The Dene Tha', a lively Alberta native community that previously held up the Mackenzie Gas Project, has stepped forward to challenge a processing plant expansion proposed by Spectra Energy Corp. (formerly Westcoast Transmission) to handle new production from BC's budding Horn River Shale gas field.

The project was proceeding as a routine addition to a decades-old operation at Fort Nelson, via swift exchanges of regulatory paper before the National Energy Board (NEB) and with no plans for time-consuming public hearings. New construction would be mostly on the established plant site and only require clearing half a square kilometer (two-tenths of a square mile) of bush. No one lives within 50 kilometers (30 miles) of the site. Spectra consulted and obtained consent from the nearest aboriginal residents, Fort Nelson First Nation.

About 2,400 Dene Tha' occupy a 302-square-kilometer (116-square-mile) reserve 310 kilometers (185 miles) southeast of Fort Nelson and across the border in Alberta near High Level, a trucking and industrial transportation hub that calls itself northern Canada's "gateway to the south" about 700 kilometers (420 miles) northwest of Edmonton. But the tribe maintains that, as originally a nomadic hunting group, it has traditional aboriginal rights to a vast, 176,000-square-kilometer (70,400-square-mile) swath of BC, Alberta and Northwest Territories.

The claim is contested by other native groups in the region, as well as by mainstream authorities that point out the Dene Tha' obtained their Alberta reserve by signing a 19th-Century treaty that involved sacrificing claims to other territory. But the meaning of the old treaties, and especially how they were understood by the participants, is an unsettled and often hotly contested matter in Canada involving rival interpretations of murky oral history and vague provisions in the old documents.

Regardless of historical debates, as a practical matter the Dene Tha' and their BC lawyers are stars at asserting aboriginal claims. In 2006, they succeeded in delaying hearings by the environmental and socio-economic Joint Review Panel on the Mackenzie project with a protest lawsuit claiming that they had been wrongly overlooked by formal native consultations due to the Alberta location of their residential settlements.

The Mackenzie review only got back on track in 2007 after the federal government paid C$25 million (US$24 million) to the Dene Tha' to settle the case. It was the second expensive settlement of a procedural lawsuit against the arctic gas project. The federal government previously kept the Mackenzie review going by making a C$31 million (US$30 million) settlement with the protesting Deh Cho First Nations of the Northwest Territories. Both native resister groups are talking among themselves about how they will respond to the panel's report, handed down Dec. 29, recommending approval of the Mackenzie project by the NEB (see NGI, Jan. 4).

BC gas developers are urging the board not to repeat the Mackenzie project's notorious regulatory delays and to continue the swift, routine approval procedure for the Fort Nelson expansion. Producers that have signed up for processing service by Spectra's proposed addition of 250 MMcf/d in new BC processing capacity include two partners in the Mackenzie scheme, Imperial Oil and ConocoPhillips Canada.

While the industry awaits an NEB decision, documents submitted to the board by the Dene Tha' highlight the potential of such cases to escalate into a prolonged review of poorly understood aboriginal claims. An aboriginal knowledge and land use study -- an example of a Canadian regulatory reporting genre known for short as AKLUS -- recites great difficulty in boiling native traditions and claims down into any form recognizable as conventional evidence.

The aboriginal "unique culture" includes a custom of personal "non-interference" where "knowledge is generally not shared through questioning or direct instruction." Instead, "imparting knowledge is primarily through observation and first-hand experience."

Rather than read maps, tribal elders who are custodians of community traditions follow sensory knowledge learned on the job of hunting, trapping and fishing as a legacy of centuries-old custom that "translates into an inter-woven fabric of land and resources, species and habitat, activity and travel." As a result the AKLUS by a Calgary aboriginal affairs consulting firm on the Dene Tha' claims describes itself as incomplete: "A common response for many interview queries of 'where do you hunt?' is met with a somewhat bewildered response of, 'we go everywhere.'" The northern Alberta tribe is demanding full oral hearings on the Fort Nelson project, with a patient schedule that lets the case last as long as it takes for a full airing of its concerns.

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