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The Globe & Mail: Dene Tha get $25-million from Ottawa

Will help settle failure to consult first nations group over Mackenzie Valley pipeline project

DAVID EBNER
July 24, 2007

CALGARY — Ottawa will pay $25-million to help settle a court dispute over its failure to consult with aboriginals over the proposed Mackenzie Valley natural gas pipeline, and the lawyer who represents the native group said a similar issue is developing with another one over a proposed oil sands project.

The government announced yesterday it was paying the Dene Tha First Nation after the Federal Court ruled last November that it had not properly consulted with the Dene Tha over their concerns about the pipeline, which would carry gas south from the Arctic and terminate on their traditional lands in northern Alberta.

Two years ago, Ottawa had to pay $31.5-million to the Dehcho First Nations of the southern Northwest Territories to settle a similar case. And last Friday, permits issued to Paramount Resources Ltd. to explore for natural gas in the southern NWT were essentially quashed by the Federal Court when it found Ottawa hadn’t properly consulted the Ka’a’Gee Tu First Nation.

Bob Freedman, counsel to the Dene Tha, said the government is again failing to consult with the Woodland Cree over a Royal Dutch Shell PLC plan to build a 100,000 barrel a day oil sands project near Peace River in northwestern Alberta. Mr. Freedman said the government has ignored letters from the Woodland Cree that expressed various concerns.

 “The courts, over and over, are telling governments to consult, and consult early, but at the same time, on virtually every project, the government resists consulting early or at all in some cases,” Mr. Freedman, a lawyer at Cook Roberts LLP in Victoria, said yesterday.

“The federal government is still very much of the view that they, and they alone, can set up processes to review projects, and they’ll include first nations when they choose to. The law is clearly going against them.”

Mr. Freedman said the Woodland Cree would rather deal with Ottawa amicably but are ready to take legal action.

“We’ve made it really clear to Shell and the government that if they don’t fulfill their duties, then there will be litigation. It’s not a threat; it’s reality.”

Ottawa’s legal stumbles follow two landmark 2004 Supreme Court decisions in cases from British Columbia that ruled the Crown had a moral and legal obligation to conduct meaningful consultations when industrial development is proposed for aboriginal land where the title is in dispute, specifically where there is no settled land claim. This was the case for the Dene Tha and the Dehcho, as well as the Woodland Cree.

While Mr. Freedman is skeptical about the government’s general willingness to cede any power or control over the review of major industrial projects to individual first nations, Ottawa yesterday said it is trying to deal with the issues. The Dehcho issue caused considerable uncertainty for the Mackenzie pipeline in 2004 and 2005 and the Dene Tha ruling last November added months of delay to the now 19-month old public review of the project.

“With this agreement, we have demonstrated that Canada is committed to meaningfully consult with aboriginal groups and, where appropriate, to accommodate their concerns with respect to how the Mackenzie gas project may affect their communities,” said Indian Affairs and Northern Development Minister Jim Prentice in a statement.

The larger issue of what constitutes meaningful consultation is still unsettled. After the Federal Court ruled in favour of the Dene Tha last November, the government filed a notice of appeal the next month.

The government yesterday said the appeal is continuing, independent of the $25-million settlement.

“[It] continues in the interests of seeking greater clarity of the law on aboriginal consultation,” the government said in background information on the settlement.

Ottawa’s failure to properly consult has hurt other large energy projects beyond the Mackenzie pipeline. A 1,150-kilometre oil sands pipeline called Gateway, proposed by Enbridge Inc. to connect Edmonton with the west coast of B.C. for export to China, has been shelved for several years in part because of concerns over mostly unsettled aboriginal land claims along the route.

http://www.theglobeandmail.com/servlet/story/LAC.20070724.RDENE24/TPStory/Business

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