As important as the federal government’s decision on June 17 to greenlight the Northern Gateway pipeline project was, today’s ruling by the Supreme Court of Canada on the Roger William case raises a huge roadblock. Basically, the court applied aboriginal title—which is not the same as fee-simple possession—to the entire traditional territory of the Tsilhqot’in Nation (about a fifth of B.C.) rather than the “postage stamp” area delineated by the B.C. Court of Appeal.
That turns what was a de facto veto for First Nations over resource projects on unceded land—most of B.C., the far north, parts of Quebec—into a full-on legal veto, says Bill Gallagher, a New Brunswick lawyer and author of Resource Rulers: Fortune and Folly on Canada’s Road to Resources.
“For big parts of B.C., business as usual has just gone out the window,” says Gallagher, and project proponents that have, like Enbridge, leaned heavily on the law rather than negotiating their own impact and benefit agreements with First Nations have found themselves standing on legal quicksand. “I would say to the pipeline proponents that the time has come to take a time out.”
Gallagher describes the William ruling as the culmination of nearly 200 aboriginal rights cases since the 1980s that forces senior governments to finally confront the need to negotiate treaties where none already exist. “Every aboriginal precedent that has ever been defined from all across the country has been built into this,” he says.
Importantly, “the word consent shows up in this ruling in two or three places,” he notes.
Several first nations whose traditional territories would be traversed by Northern Gateway have already said they would not consent to the project. “Not on my watch,” said Haisla Nation chief councilor Ellis Ross when I spoke to him recently. “There is no technology out there to pick up this oil.”
That doesn’t mean a moratorium on resource development in B.C., of course. But it does mean affected communities—many of which are hungry for jobs and business activity—must not just be consulted, but brought on board. Many project proponents these days are approaching First Nations before they even apply for government approvals and negotiating impact and benefit agreements that in effect preclude the aboriginal group coming out afterwards and holding up the project on grounds of aboriginal rights and title.