In the 1970s the Mackenzie valley pipeline came to a halt because of unresolved aboriginal title and rights issues. The Berger Report called for the federal government to delay the pipeline for 10 years and first finish negotiating Treaties with the aboriginal people of NWT. This was in 1977, fast forward to 2012 and the Enbridge Northern Gateway Pipeline.
The route of the pipeline crosses the lands of numerous BC First Nations, First Nations that do not yet have Treaties with the government. The lack of Treaties means the pipeline route is effectively encumbered by aboriginal title and rights for most of the route through BC.
Going ahead with the hearings and the federal review process of this project this year makes little or no sense without clarity on land ownership. It is more than clear that there is effectively no support from First Nations for the pipeline and without consent of the First Nations it is a waste of time to move forward as long as they remain owners of the land.
BC First Nations have an ownership stake in the land that is constitutionally protected. Aboriginal title exists, but the federal government has been working as if it does not exist as long as a First Nation has not proven in court they own the land. Effectively the federal government acts as if the First Nation's aboriginal title and rights have been extinguished. This approach simply puts off the day of reckoning.
How strong is aboriginal title? It is likely the strongest and most complete property right in Canada. The federal government has a constitutional duty to look after any aboriginal title lands in the best interests of the First Nation. In effect this means the federal government will need to gain the majority consent of any First Nation before it can radically infringe any aboriginal title.
Based on a long series of cases over the last 15 years, there is no way that the First Nations like Nadleh Whut'en, Stellat'en. Wet'suwet'en, Nak'azdli and the Haisla can not prove title to the land on which the pipeline will cross. The test for aboriginal title is that the First Nation can prove exclusive occupation at the time the Crown asserted sovereignty. Between oral histories and archaeological evidence there is no danger of First Nations not being able to prove exclusive occupation.
Looking at just one First Nation, I am reasonably aware of the work done by the Office of the Wet'suwet'en with respect to their title to the land. They have all the evidence needed to prove ownership. Simply put, without explicit consent it is not going to happen.
Realistically for the federal government to get the pipeline project to move forward they need to actually settle Treaties with the First Nations along the pipeline route as a first step. The federal government has been the primary reason for the stalled and slow BC Treaty process for at least the last 11 years. The core of the problem from the federal side is that they will not negotiate with the First Nations as if their ownership of the land has any value.
As long as the title issue is not resolved, the pipeline is dead in the water.