UPDATE 3-Canada aboriginal court win sparks new pipeline questions

Thu Jun 26, 2014 4:27pm EDT

(Adds reaction, possible implications for Northern Gateway pipeline and other projects)

By Randall Palmer

OTTAWA, June 26 (Reuters) - Aboriginals in British Columbia can stake a broad claim to traditional territories due to a landmark Supreme Court of Canada decision that also raises new questions about prospects for the contentious Northern Gateway pipeline and other resource projects.

Thursday's ruling marks the first time the Supreme Court has recognized aboriginal title to a specific piece of land. It is expected to have widespread application in the resource-rich Pacific Coast province, much of which is subject to unresolved aboriginal land claims.

The case involved a claim to 1,750 sq km (676 sq miles) of land in central British Columbia. The court ruled that the Tsilhqot'in Nation, a group of six native bands, is entitled to prevent forestry on this tract.

The decision overturned an appeals court ruling that had restricted the Tsilhqot'in to having title only in the small areas of the land where they had proven continuous and intensive physical use.

While it still could take years to establish aboriginal title in other areas, the Supreme Court warned that if title is established, then existing development projects might have to be killed off if proper care is not exercised by their proponents.

"For example, if the (government) begins a project without consent prior to aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing," the court said in its 8-0 decision.

EYE ON NORTHERN GATEWAY

Enbridge Inc's Northern Gateway pipeline project, the highest-profile and most controversial resource proposal in British Columbia, would carry 525,000 barrels per day of crude to the Pacific from the Alberta oil sands. The federal government approved the project on June 17 over the strenuous objection of several British Columbia native groups.

The pipeline route is well to the north of the specific tract involved in Thursday's case, but the coastal group Haida Nation said the Supreme Court's language on reconsideration of approved projects could enable it to bring the project to a halt.

"If we're successful in our (land) claim, then certainly the project approvals would have to be rescinded," Terry-Lynn Williams-Davidson, the Haida's general counsel, told an Ottawa news conference.

The Supreme Court said governments could allow some resource projects to go ahead, even if they infringe on aboriginal title, in cases where there is "a compelling and substantial public interest".

It made such approvals conditional, however. For instance, the impact must be proportional: the benefits of development projects must not be outweighed by adverse effects on aboriginals. And infringements cannot proceed if they would deprive aboriginals in the future of the benefit of the land.

"They're probably back on their heels," Grand Chief Stewart Phillip of the Union of B.C. Chiefs said of the proponents of Northern Gateway and similar projects. "Today is a game changer."

DISPUTE OVER LOGGING

Chief Joe Alphonse, the Tsilhqot'in tribal chairman, said in a statement the case was about "regaining our independence, to be able to govern our own nation and rely on the natural resources of our land."

The dispute over the Tsilhqot'in land began in 1983 when British Columbia granted Carrier Lumber Ltd a license to cut trees in part of the territory at issue. The aboriginals objected and blockaded a bridge the company was upgrading. Twelve years of court wrangling over aboriginal title followed.

"The nature of aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses," the court said.

University of British Columbia aboriginal law specialist Gordon Christie said the ruling would have "enormous implications" for resource development. He added the caveat that the decision does not apply to private property but only so-called "Crown lands" controlled by the government.

Tom Isaac, head of the aboriginal law group at law firm Osler, noted that while the ruling may strengthen opponents of resource projects, the process of establishing aboriginal title is still not simple.

"Obviously this is very significant and it will probably embolden those advocating for these rights, but it's a legal system and there is a huge burden on First Nations (aboriginals) in order to prove the title, so this is not an easy thing to prove," he said.

Rather than fighting over projects through litigation, the court made clear that negotiated agreements are still possible.

"As the courts have repeatedly pointed out, negotiation is preferable. When that happens we all win," British Columbia Justice Minister Suzanne Anton told reporters.

The name of the case is Tsilhqot'in Nation vs British Columbia, 2014 SCC 44. (Additional reporting by Nicole Mordant and Julie Gordon in Toronto, Scott Haggett in Calgary, Euan Rocha in Toronto and Rod Nickel in Winnipeg; Editing by Jeffrey Benkoe, Peter Galloway and Jeffrey Hodgson)