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Mackenzie Project Mired in Polar Bears and Aboriginal Rights

While oral testimony is finished, the barrage of protests against Canada's northern natural gas pipeline project continues to pile up in written form on desks at the National Energy Board (NEB).

The latest salvo accuses the Mackenzie Gas Project of being potentially a major addition to greenhouse gas emissions blamed for global warming which is said to be melting arctic ice, making polar bears an endangered species and threatening aboriginal hunters' livelihoods.

Just operating the development's Mackenzie Delta production field and Mackenzie Valley Pipeline will increase carbon-dioxide emissions as much as putting 400,000 to 800,000 more cars on the roads, says a report fired off to the NEB by the Sierra Club of Canada and Ecology North. There are only about 20,000 personal vehicles registered in the entire Northwest Territories, observes the document prepared by mechanical and environmental engineers with Alberta's Pembina Institute for Appropriate Development.

Take the "downstream" use for the project's 1.9 Bcf/d of gas into account, and the potential additions to greenhouse-gas emissions grow big enough to be nationally significant for Canadian global climate change policy, the environmentalists add.

The nearest and likeliest customers for the arctic gas will be northern Alberta oil sands projects, the conservationists suggest, repeating a prediction repeatedly made by the Mackenzie scheme's critics during almost a year of hearings. Bitumen extraction and "upgrading" into synthetic crude is the most energy-intensive form of oil production, consuming up to 1.5 Mcf of gas per barrel of output, depending on the technology used.

If oil sands plants used all the arctic gas, the environmentalists say the Mackenzie project's contribution to carbon dioxide emissions would equal effects of putting 5.5 million to 8.4 million cars on the roads. That in turn equates to increasing the latest known total of 17.5 million personal vehicles registered in Canada by 31-48%, the environmentalists estimate.

The line of reasoning used by the arctic gas scheme's green critics has been rejected by project sponsors Imperial Oil, Shell Canada, ConocoPhillips Canada and ExxonMobil Canada as often as it has been introduced during the marathon regulatory proceedings. The environmental studies both overestimate emissions by the pipeline and production system and make a false connection to the oil sands, the companies insist. Alberta bitumen projects will go ahead regardless of whether arctic gas reaches the market, say the companies. All the Mackenzie sponsors are participants in large oil sands developments.

At the same time as environmental wrangling continues, aboriginal rights duels ignited by the arctic gas project are also still being fought out. The next battle starts Jan. 11, when the NEB has summoned all concerned to a procedural conference on dealing with a formal protest motion by the Dene Tha' First Nation of northwestern Alberta.

The natives are urging the NEB to assert jurisdiction over the Alberta leg in the arctic project, a 100-kilometre (60-mile) stretch of pipeline between the southern boundary of the Northwest Territories and the top of the TransCanada-Nova delivery system to the rest of Canada and the United States. If the NEB finds it can do no such thing, the board must refer the question to Canada's Federal Court of Appeal, the Dene Tha's lawyers suggest.

Depending on how the NEB handles the legal point, the case potentially opens a Canadian constitutional can of worms. TransCanada has made its construction application to the Alberta Energy and Utilities Board, which fiercely protects its authority over installations built within its province as a matter of right established by provincial ownership of natural resources under the national constitution. Aboriginal leaders maintain Alberta authorities pay less attention to them than federal agencies, and that upholding native rights is a national responsibility.

Any attempt to change the division of powers is sure to escalate into a national legal case involving the highest provincial and federal legal authorities. Even hearing arguments on the matter requires advance notice to both levels of government, so that they can send out their big legal guns. Issues to be reviewed by the Jan. 11 procedural conference include whether the contest has reached the point where formal invitations to a national legal duel have to be circulated.

Documents filed with the NEB, meanwhile, highlight the problem aboriginal rights has become during the arctic gas regulatory marathon. TransCanada has been formally and officially working with the Dene Tha' on the Alberta leg in the Mackenzie project since Jan. 1, 2004, which was the effective date of a Community Co-operation Protocol Agreement between the pipeline company and the natives.

The protocol included funding by TransCanada of Dene Tha' participation in an agreed formal consultation process. Like legal bills in aboriginal rights cases, the level of support is confidential. But the funding has been enough for the native community to establish a negotiating team, hire experts and conduct studies.

The Alberta aboriginal group is on record as not opposing construction of the short length of pipe in a region that has been a gas drilling hot spot for decades. The arctic project raised Dene Tha' hopes of extracting benefits akin to deals, including part-ownership of the Mackenzie pipeline, done with arctic native communities that have reached modern land claims settlements considerably more generous than Alberta's 19th- and early 20th-Century Indian treaties.

The Dene Tha' requested an ownership share in the arctic project's Alberta leg. The request was rejected. The natives demanded taxes and fees in trade for industry access to Crown or provincial government-owned land that lies outside their 1,200-square-mile treaty reserve but that they claim as traditional territory. The demand was rejected, with TransCanada saying it can only pay taxes to the appropriate government authority.

And, as often surfaces in aboriginal rights contests, there is a hint that it would be tough to make any deal stick because it is not clear that the community is united on what it wants.

The Dene Tha's negotiating team has insisted it is the only way open for TransCanada to talk to native community members in general and aboriginal fur trappers in particular. But issues raised at meetings include grievances that the Indian band's members, and especially elders who are their traditional leaders, are not being properly informed, respected or consulted. While TransCanada has set no deadlines on resolving the Dene Tha' issues, company officials have openly wondered whether the Mackenzie project's sponsors will eventually shelve it as either impossible in the current state of Canada's relationship with its aboriginal communities or more trouble than the effort is worth.

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ISSN © 2577-9877 | ISSN © 1532-1231
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