See: Aboriginal Rights and Title
When considering; the First Nations land entitlements, the UN Declaration on Aboriginal Rights, The Moratorium on tankers in the BC North Coast and the Coastal Reconciliation Protocol, all seems a done deal in favor of preventing the pipeline project from going through. However:
Given that PM Stephen Harper has this pipeline as a pet project and has all but assured approval to both Enbridge and the Chinese Government along with his disdain for NGOs and his basic denial that the UN declaration has sway under Canadian Law or that the tanker moratorium even exists, should there be suspicion that PM Harper will enact legislation to squelch any decisions, protocols or laws that stand in the way? Since the Supreme Court is appointed, is there a likelihood that he appoints a judiciary more favorable to the Enbridge pipeline position?
In reviewing the decisions of the Courts and the ‘Delgamuukw’ rulings which compel all parties to reaffirm the treaty process through negotiation, and since the British Columbia Treaty Commission has yet to make final rulings on Wet’suwet’en, Gitxsan, and Tsimshian land claims, it seems probable that the settlements with First Nations should precede the final ruling on the Northern Gateway Project. If that be the case, the Supreme Court will definitely become involved and the process could take up to 20 years before its all over.
Two Supreme Court (1997) statements bear special consideration:
1. Aboriginal title lands must not be used in a way that is irreconcilable with the nature of the group’s attachment to the land.
2. In order for the Crown to justify an infringement of Aboriginal title, it must demonstrate a compelling and substantive legislative objective, it must have consulted with the Aboriginal group prior to acting, and in some cases, compensation may be required.
The clause; “and in some cases, compensation may be required.” Could this be interpreted; The Government may infringe on rights and grant compensation regardless of the First Nations opposition?