Aboriginal and environmental dissenters have been served their clearest notice yet that they will not be allowed to stop the Mackenzie Gas Project if it presents a viable case. The Canadian government has the final say on projects and can trump recommendations of the Mackenzie project Joint Review Panel set up with federal, Aboriginal and provincial representatives, according to the latest federal pronouncement, backed by court decisions.
Canada's federal Department of Indian and Northern Affairs was goaded by a prolonged procedural dispute -- with critics of the gas industry and the approval process alike -- into stating limits seen by the government in Ottawa on the powers of both aboriginal groups and the project's environmental review. The dispute prompted the department to lay out ground rules that make it plain an aboriginal veto on the C$7 billion (US$5.6 billion) project is not in the cards.
Citing two recent landmark decisions by the Supreme Court of Canada on resource projects affecting aboriginal communities in British Columbia, federal lawyers insist power is still vested in Ottawa rather than First Nations community halls. The unanimous rulings by the nine-judge court on hotly contested aboriginal rights provisions laid out by Section 35 of Canada's 1982 Constitution Act said native communities must be consulted on industrial developments affecting them, but explicitly stated they do not have a veto.
The government's lawyers say, "Consultation and, where appropriate, accommodation requires the following of the Crown: information sharing, listening to concerns, seriously considering the concerns, trying to address the concerns, and where appropriate accommodating those concerns."
The evolving federal doctrine says natives cannot simply claim sovereignty over territory and turn away development on principle, an approach often used by aboriginal community factions that maintain their official description as First Nations has to be taken literally.
"An effective and meaningful consultation process will, by necessity, involve Aboriginal groups outlining their claims with clarity, focusing on the nature and scope of their claimed or established section 35 rights and on any potential infringements of those rights." The cases in the sensitive field establish that "appropriate consultation is one element that a court would consider as part of justifying such infringement," the government says.
Just where it will be appropriate to make industrialists change or drop project plans is up to the government, its lawyers insist. The final say does not belong to the Joint Review Panel appointed by federal, Northwest Territories and aboriginal agencies to conduct environmental scrutiny of the Mackenzie project.
"The Joint Review Panel has neither the legal capacity nor the mandate to determine whether section 35 rights exist or the scope of those potential rights."
The same goes for final decisions on dealing with environmental problems and mitigation proposals to be raised by the report of the panel. Those will be recommendations to the National Energy Board, which will decide whether and how to translate them into action such as conditions on construction approval, the federal lawyers say.
At the same time as the federal cabinet committed C$500 million (US$400 million) to trust funds for financing native community adaptations to industry ranging from roads to cultural preservation, a Mackenzie Gas Project Crown Consultation Unit has been appointed to deal directly with rights claims. Known as the MGP-CCU for short by federal officialdom, the special unit "has commenced the process of engaging Aboriginal groups along the pipeline route or those groups who feel they may otherwise be affected by the Mackenzie Gas Project."
The federal lawyers also made it plain Ottawa has no plans to start a jurisdictional war with Alberta that has been repeatedly encouraged by aboriginal and environmental groups participating in both the environmental and NEB reviews of the northern gas project. Ottawa is not asserting jurisdiction over the final, 60-mile link between the proposed new arctic delivery system and the mainstream grid that TransCanada PipeLines will build in northern Alberta.
Rather than reopen an old Canadian can of worms, the federal government says its jurisdiction stops at the territorial boundary. The Alberta Energy and Utilities Board will be left alone to do "its own independent environmental assessment for pipelines which fall within its jurisdiction. The Alberta process will apply with regards to provincial authorities when they exercise their regulatory authority over areas within provincial jurisdiction."
While the Joint Review Panel has yet to hand down a decision on the procedural wrangle that prompted the federal government to lay out its policy, insiders say it will be a big surprise if the temporary agency tries to widen its mandate.
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