Dene Tha' not consulted pipeline process.

• Author: Fenwick, Fred R.
• Position: Aboriginal Law

On November 10, 2006, the Federal Court of Canada gave a declaration that the federal government had failed to consult the Dene Tha' First Nation with regard to the building of the McKenzie Valley pipeline. The declaration effectively put an end to the regulatory hearings and planning leading to the building of the pipeline until the Dene Tha' were properly consulted.

Now, nothing about the existence of the Dene Tha' First Nation, or the need to consult them about this pipeline, has ever exactly been a secret. So how did the government get into this jackpot anyway?

The Dene Tha' are a Cree First Nation of about 2500 members, whose historical territory is around the borders of Alberta, BC, and the NWT (not that these political borders meant much to the Dene Tha'). The McKenzie Valley gas reserves have been known about for decades, along with the practical necessity of dealing with the Aboriginal people over whose land any pipeline to extract the gas would have to be placed. In 1977, the Berger Report highlighted the necessity of settling Aboriginal land claims in the area as a precondition to pushing through such a massive and potentially disruptive industrial project. Since 1977, our recognition of Aboriginal rights and the need for consultation in appropriate situations has grown. In 2004, the Supreme Court in the Haida v. B.C. case required the government to consult with a First Nation about a large forestry cut that it proposed on lands to which the Haida had a possible but not yet proven claim. In the 2005 Mikisew v. Canada case, the Supreme Court found that the government had to consult the Mikisew Cree about a road that was proposed to go over not their reserve lands, but lands to which they had additional rights for hunting and trapping.

Further, every other First Nation on the route had been consulted except the Dene Tha'. Yet the pipeline ends (and hooks up to existing pipelines) within the Dene Tha's traditional territory over which they have hunting and other occupational rights.

What was the federal government's excuse for not consulting? This is the process that was used and how the Dene Tha' were accommodated:

* in 2000, the oil companies, producers, and First Nations got together to develop a Cooperation Plan;

* the National Energy Board, the Canadian Environmental Assessment Agency, Indian Affairs, and other regulators got together and made a Regulators Agreement;

* in 2004, the parties made a Joint Review Panel Agreement;

*...