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Canadian Court Finds Mackenzie Pipe Failed to Consult with Aboriginals

The smallest piece of Canada's northern natural gas pipeline project turned into one of its bigger headaches Nov. 10, when protesting Alberta natives won an aboriginal rights ruling by the Federal Court of Canada.

The court found that the federal government failed to consult properly with Dene Tha' First Nation on a 100-kilometer (60-mile) stretch of the proposed C$7.5-billion (US$6.7-billion) Mackenzie Gas Project (MGP).

The contested segment is the southern-most piece of the route between the southern boundary of the Northwest Territories and the top of the TransCanada-Nova gas grid in Alberta, crossing Dene Tha' territory about 750 kilometers (500 miles) northwest of the provincial capital of Edmonton.

The MGP provoked the protest lawsuit by adopting an approach described as "project splitting" by the native community and its lawyers. Construction of the Alberta segment was separated from the Mackenzie Valley route and assigned to TransCanada.

The division of labor meant that TransCanada applied for construction to the Alberta Energy and Utilities Board. From the native point of view that was serious because it meant the Dene Tha' were excluded from northern project benefits negotiations and much more elaborate Mackenzie Valley regulatory proceedings by the National Energy Board and a parallel environmental joint review panel of federal, territorial and aboriginal agencies.

The new legal ruling said the environmental report on the MGP cannot be completed until additional hearings are held by the courts and the review panel on the Dene Tha's interests.

The court decision added it was not immediately obvious what practical difference additional hearings would make, since the structure of the MGP regulatory review was determined years ago and the process has been under way since January.

Issues to be decided by the further hearings include federal government appointment of a special consulting office, its mandate, technical assistance for the Dene Tha', and the roles of the NEB and joint review panel in the modified process, the new ruling said.

Dene Tha' leaders and lawyers emphasized that they were not out to block the project or even slow its already glacial pace through the northern regulatory process. The point of the protest was to force the industry and governments to deal with the Alberta aboriginal community on the same footing as the territories' natives.

No new schedules, dates or deadlines were immediately established. The review panel's schedule has already been extended for three months into next spring for additional Mackenzie Valley hearings, potentially delaying completion of the project for a year. The MGP's industry partners are preparing new cost estimates expected to raise previous forecasts, partly by taking into account effects of its regulatory and aboriginal benefits negotiating marathon.

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