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Court Rules Government Didn't Consult Dene Tha' Over Mackenzie Gas Pipeline

Posted on: Friday, 10 November 2006, 18:00 CST

EDMONTON (CP) - The federal government failed in its duty to consult with the Dene Tha' in connection with the Mackenzie Valley gas pipeline, the Federal Court ruled Friday, possibly delaying a report by the joint review panel studying the project.

"By depriving the Dene Tha' of the opportunity to be a participant at the outset, concerns specific to the Dene Tha' were not incorporated into the environmental and regulatory process," Judge Michael Phalen wrote in his decision.

The court ruled that the joint review panel studying the project cannot review any aspect of the project affecting the Dene Tha' lands and prevented it from making any report to the National Energy Board while it looked for a final solution.

The planned pipeline would bring gas from fields in the Far North to southern markets in Canada and the United States. However, the multibillion-dollar project has been hampered by cost overruns, regulatory delays and opposition from some native and environmental groups.

As well, there's a competing proposal from the state of Alaska, which has also been delayed over regulatory and oil industry financial issues.

"As part of any remedy, it is necessary to fix some minister or person with responsibility whose actions are subject to accountability in meeting the duty to consult which has been breached," Phalen wrote in his 50-page decision.

The Dene Tha', who signed onto Treaty 8 in 1900, have about 2,500 band members over seven reserves in northwestern Alberta, northeastern British Columbia and the southern end of the Northwest Territories.

They argued that despite the fact the proposed pipeline would cross their traditional lands, they have been left out of both regulatory hearings and benefits negotiations.

The final leg of the pipeline and the plants, compression stations and other infrastructure connecting it into existing networks are located in northern Alberta, so they are not included in the hearings, which have been criss-crossing the North since early spring.

The Dene Tha' have long argued that separating the connecting facility from the main hearings robs them of any input. While all other aboriginal groups have some kind of representation on the panel, the Dene Tha' are restricted to making a presentation.

They maintain the connecting facility is integral to the pipeline and should be considered by the federal review.

The court said it will also consider several other possible solutions including:

-whether the Crown be required to appoint a chief consulting office,

-the mandate for any consultation,

-any technical assistance and funding for the Dene Tha' to help carry out the consultation

-the role, if any, the court may play in supervising the process.

-and the role of the joint review panel and National Energy Board might have in the consultation process.

Lawyer Robert Janes, who represented the Dene Tha' at the hearing, was pleased by the decision.

"Dene Tha' has always wanted principally to have proper consulations happen and more generally some more serious dicussions with the federal government and for whatever reason the federal government has been uninterested in having those," Janes said.

"The problem that the judge and we have as well is that this case isn't supposed to be about bringing an end to the pipeline or forcing a particular result. It is about trying to force a conversation to happe, so the the judge has got to figure out a way to make that happen.

The project pipeline, who's lead partner is Imperial Oil (TSX:IMO), is considered key to unlocking large gas reserves in the North that were detected 20 years ago but have remained in the ground with no way to get to market.

Imperial recently said it would provide its cost estimates for the Mackenzie Valley natural gas pipeline by the end of this year. The 1,220-kilometre pipeline proposal would stretch from the Northwest Territories down the Mackenzie Valley and into existing gas infrastructure in Alberta.

Other partners in the project are Shell Canada (TSX:SHC), ConocoPhillips (NYSE:COP), Exxon Mobil Corp. (NYSE:XOM) and the native-owned Aboriginal Pipeline Group.

In Friday trading on the TSX, Imperial shares fell 84 cents to close at $41.96, a drop of nearly two per cent.

Source: Canadian Press

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