Aboriginal and environmental protesters have learned for the second time this winter that they have lost their old power to freeze natural gas development out of northern Canada.

The National Energy Board, in a ruling put in the mail as the holiday season began, refused even to call a “paper hearing” or written exchange of arguments on the latest resistance effort. The NEB summarily dismissed an effort by the Dene Tha’ First Nation of northern Alberta and British Columbia to call a timeout in the regulatory review of the Mackenzie Gas Project.

The action made it plain the NEB is marching to the same drummer as the parallel environmental review by a joint panel of federal, northern government and aboriginal representatives. The Dene Tha’ resistance before the NEB was brushed aside as abruptly as lawsuits launched to halt the environmental panel’s work by the Deh Cho in the southern Northwest Territories.

The authorities’ determination to move ahead contrasts sharply with their pattern during the first incarnation of the Canadian arctic gas project in the 1970s, when regulatory and political leaders bent over backwards to accommodate critics of northern industrialization. Like the Deh Cho, the Dene Tha’ maintain the northern regulatory process — and the C$7-billion (US$5.6-billion) Mackenzie project — should be put on hold until particular native groups feel prepared to cope and fully participate.

The Dene Tha’ protest focused on the smallest piece of the arctic gas plan but raised the possibility of stopping the entire project by opening two big Canadian cans of worms: federal-provincial jurisdictional conflict and the meaning of a constitutional requirement for natives to be consulted on projects.

The aboriginal group challenged the NEB to assert federal jurisdiction over the southern-most end of the proposed arctic pipeline, which would effectively fire the opening round of a war with Alberta over its jealously guarded authority over resource development.

The Dene Tha’ insist special recognition should be given to effects of the gas project on their treaty lands and wider traditional territory in the southern Northwest Territories, northwestern Alberta and northeastern British Columbia. In a formal notice of motion filed with the NEB, the native group insisted the Arctic regulatory procedure should cover the southern-most 60 miles of the northern pipeline route in Alberta beside its boundary with B.C.

The industry plan calls for an extension of Alberta’s TransCanada-Nova gas gathering grid to look after the final stretch, with TransCanada building it and the Alberta Energy and Utilities Board approving it. Complaining that division of labor also effectively denies them their constitutional rights, the Dene Tha’ also demanded to be included in the elaborate consultation and assistance being provided by the arctic project to the aboriginal population of the Northwest Territories.

While residents of northern Alberta, the Dene Tha’ claim a wide swath of B.C. and the southern territories to be part of their traditional territory. The group’s lawyers demanded that the NEB devise a program of “meaningful consultation” as part of taking control over the southern end of the arctic pipeline project away from Alberta.

The NEB gave the industry — although not the lawyers involved in the arctic gas case — a welcome Christmas present by declaring it will dismiss the Dene Tha’ motion without any form of oral or written hearings. Reasons for the decision will be released in the new year. The question left by the wrangling was whether the Dene Tha’s lawyers will resurrect it in other ways during the regulatory procedures on the arctic project.

But the legal duels will not necessarily boil over into outright opposition against northern gas development, Canadian industry and regulatory veterans observed privately. Like their aboriginal neighbors to the north, the Dene Tha’ are positioned to participate in industry at the same time as they assert rights to special consideration as Canada’s first people. The northern Alberta native group participates in joint ventures such as owning rigs in partnership with a Calgary drilling contractor, and has signed a formal MOU or memorandum of understanding with TransCanada on participation in pipeline development.

Three of five territorial native communities affected by the production plan for the Mackenzie Delta and the 1,375-mile pipeline proposed through the Mackenzie Valley — the Inuvialuit and Gwich’in on the delta, and the Sahtu in the central valley — support the project and own shares in it as members of the Aboriginal Pipeline Group.

At the same time as economic arms of the Deh Cho First Nations mounted joint ventures to profit from the gas project in fields such as surveying and pipe wrapping, their political leaders sought to slow down the regulatory process for much of 2004. The effort spilled over into the courts. The environmental review should be held up until lengthy land claim negotiations are completed with the federal government or at least until the community can name representatives to the panel as if a settlement was completed, according to lawsuits filed by the Deh Cho.

But the Inuvialuit, Gwich’in and Sahtu — who have completed land settlements and field multiple industrial arms — vowed to fight the Deh Cho in court to keep the process going. Environmental review proceedings went ahead on schedule. After settlement talks with federal authorities in Ottawa failed, the Deh Cho have fallen silent on their protest lawsuit. But the Mackenzie project’s sponsors expect aboriginal interests to be pursued vigorously for the duration of the regulatory process.

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