When he was an Indian and Northern Affairs minister in Prime Minister Stephen Harper's government, Jim Prentice earned a fair measure of respect from aboriginal leaders who viewed him as a straight talker.
A lawyer with expertise in aboriginal law, Prentice has been warning in recent weeks that his former colleagues in the Conservative government are heading for a legal confrontation with B.C. First Nations over plans for export-oriented oil pipelines across the province.
Prentice told the Globe and Mail that Canada must bolster its capacity to export oil and natural gas to Asian markets via the West Coast. But Prentice, who also served as industry and environment minister and is now a vice-chair of CIBC, told an audience at the University of Calgary that the government and oil industry have been complacent and shortsighted in preparing for the shift.
He zeroed in on Ottawa's apparent failure to properly consult First Nations affected by the proposed Enbridge Inc. Northern Gateway bitumen pipeline across northern B.C. and the planned export terminal at Kitimat.
"The Crown obligation to engage First Nations in a meaningful way has yet to be taken up," Prentice said in the speech.
Failing to consult is not just a political mistake, he said. It could have serious legal repercussions for Northern Gateway, as well as for the proposed doubling of the existing Kinder-Morgan TransMountain pipeline through southern B.C. to Vancouver.
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A series of rulings by the Supreme Court of Canada have entrenched in law a constitutional obligation to consult First Nations on any developments affecting them. The decisions have expanded to include not just reserves but also land that is claimed as traditional territory by First Nations.
Natural Resources Minister Joe Oliver has repeatedly affirmed that obligation, CBC News noted last March.
"We have a moral and constitutional obligation to consult with Canada's First Nations," Oliver is quoted as saying.
The government launched a joint review panel for Northern Gateway with the National Energy Board and Canadian Environmental Assessment Agency. But critics like Chief Jackie Thomas of the Saik'uz First Nation said that can't pass for consultation.
"That doesn't even meet the legal standard," she told CBC News.
The National Energy Board doesn't have to fulfill the government's legal obligation to consult First Nations on the projects, noted former Canada West Foundation chief executive Roger Gibbins according to the Calgary Herald.
Prentice apparently agrees. The Globe said he told his audience in Calgary that the government's neglect of aboriginal relations could now doom the pipeline projects.
"The obligation to consult with and accommodate first nations ... these are responsibilities of the federal government," said Prentice, who left government in 2010. "And take it from me as a former minister and former co-chair of the Indian Claims Commission of Canada, there will be no way forward on West Coast access without the central participation of the First Nations of British Columbia."
Ottawa should negotiate a deal that allows First Nations to support the projects without compromising their unsettled land claims, and also launch a co-management scheme with aboriginal communities covering port terminals and shipping, Prentice said, according to the Globe.
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Many First Nations along the proposed Northern Gateway route are opposing the $5-billion project on environmental grounds, worried that a pipeline rupture involving chemically diluted bitumen might harm the waterways in their territories.
But that apparently doesn't mean some are not prepared to listen.
"The word here is potential — we've got all of these proposals and they represent massive potential investment," David Porter, chief executive of the First Nations Energy and Mining Council, which represents B.C. chiefs, told the Globe.
"But for that to happen there has to be a serious discussion with the aboriginal representatives in British Columbia and particularly on the West Coast."
Lawyers working for First Nations say federal consultation has been minimal, even non-existent.
Ottawa "dropped the ball," Vancouver lawyer Allan Donovan, who represents the Haisla Nation, which claims land rights at the west-end terminal of the Northern Gateway line, told the Globe. "They never even had a hold of the ball as far as I can see."
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The government has laid down a 90-day consultation period after the joint review panel wraps up its proceedings, a window Donovan calls "completely inadequate."
It sets the stage for a constitutional challenge in court if Ottawa moves ahead with Northern Gateway.
"It's very likely that that's exactly what would occur if, despite everything, the government approved the project," Donovan said.