The court then defined the rights conveyed: “Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders.” The lone exception allowed was when “after consulting and attempting to accommodate, proceeding without consent is backed by a compelling and substantial objective.” Having established this seemingly helpful exception, the court then added words that guarantee endless litigation: “the level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land.” But how could that possibly be decided outside the courts? Nowhere have those words done more damage than to two major pipeline projects that were to carry Alberta oil through B.C. to tidewater.
In 2010, Enbridge filed regulatory application for the Northern Gateway pipeline to the port at Kitimat. After four arduous years of hearings, environmental reviews and stakeholder consultation, the Harper cabinet approved the project. But in 2016, that approval was struck down after a court appeal by Aboriginal bands claiming insufficient consultation. Enbridge launched a new round of consultation, only to see Prime Minister Justin Trudeau stymie the project by creating the Great Bear Rainforest reserve. The bands behind the court appeal were pleased but not the nine bands along the route, which lost employment and financial benefits. They filed a lawsuit claiming the Great Bear Rainforest prohibition against development on their traditional lands shouldn’t have been implemented without their consent. After six years and multiple Aboriginal litigations, a pipeline that could have been on-stream today was dead.