Preventing a Pipeline to Nowhere: The Alaska Native Claims Settlement Act as a Model for Resolving the Unsettled Land Claims of the First Nations of Canada

• Author: Matthew J. Prieksat
• Position: J.D., The University of Iowa College of Law, May 2010
• Pages: 977-1008

Preventing a Pipeline to Nowhere: The Alaska Native

Claims Settlement Act as a Model for Resolving the

Unsettled Land Claims of the First Nations of Canada

Matthew J. Prieksat*

I. INTRODUCTION .............................................................................. 978

II. COMMERCIALIZING ALASKAN GAS ................................................ 980

III. FACING CHALLENGES .................................................................... 983

IV. LAND CLAIMS AND CANADIAN LAW .............................................. 985

V. PROTECTING RIGHTS: THE CANADIAN CONSTITUTION ................. 987

VI. THE DUTY TO CONSULT .............................................................. 988

A. “Honour of the Crown:” The Duty to Consult Under

Haida ............................................................................... 990

1. Facts ....................................................................... 990

2. The Court’s Analysis: Injunctive Relief ............... 991

3. Source of the Duty to Consult ............................... 991

4. When the Duty to Consult Arises ......................... 993

5. Scope of the Duty to Consult ................................ 993

6. Third Party Duties ................................................ 995

VII. MODERN SETTLEMENT: THE FORMAL NEGOTIATION

PROCESS ...................................................................................... 995

VIII. FINDING AN ALTERNATIVE TO THE NEGOTIATIONS PROCESS ..... 999

A. ANCSA ........................................................................... 1001

B. Applicability to Canada ................................................ 1003

IX. CONCLUSION ............................................................................... 1007

* J.D., The University of Iowa College of Law, May 2010. The author would like to thank the

TLCP editors and writers for their contributions; Kristin Knudsen, former Chair of the Alaska

Workers’ Compensation Appeals Commission, and Mark Torgerson, Administrator/Hearing

Examiner for the Alaska Labor Relations Agency, for giving him the chance to experience Alaska

and receive the inspiration for this Note; and his family and KLDP for their support througho ut

the process.

978 TRANSNATIONAL LAW & CONTEMPORARY PR OBLEMS [Vol. 19:977

I. INTRODUCTION

Alaska is a land of astonishing beauty. Affectionately known as the “Last

Frontier,” the state is renowned for the majesty of its mountain ranges, the

power of its rivers, the blue ice of its glaciers, and the abundance of its

wildlife.

Alaska is also a land of remarkable bounty. The State’s history is a

repetitive cycle of economic booms and busts. Beginning with fur and

continuing through timber, gold, fishing, and oil,1 Alaska possesses an

economy heavily reliant upon natural resource extraction for its continued

prosperity.2 With oil production gradually declining,3

Natural gas is the nation’s fastest growing energy source.

the State is in need of

another boom. Natural gas may provide the answer.

4 Forecasts

predict that the U.S. demand for natural gas will increase by 22 percent

between 2008 and 2030.5 Americans use natural gas to heat and cool their

homes, generate electricity, and power industrial manufacturing processes.6

Prudhoe Bay, on Alaska’s North Slope, possesses a prodigious 35 trillion

cubic feet of natural gas reserves.7

The current transportation proposal involves constructing a 1,715-mile

pipeline

The challenge lies in transporting these

vast reserves to market.

8 that would stretch through Alaska, into the Yukon Territories of

Canada, across northern British Columbia, and into Alberta,9

1 History & Culture, ALASKA.COM, http://www.alaska.com/about/history/ (last visited Sept. 23,

2010).

where it would

2 The state derives nearly 90 percent of its unrestricted general fund revenue from oil and gas

royalties. Hal Spence, Economist: Alaska’s Oil-Gas Industry Healthy, HOMER NEWS, S ept. 17,

2008, available at http://homernews.com/stories/091708/business_bu_001. shtml. Estimates for

2008 indicate that oil revenues could be anywhere between $10 and $14 billion. Id.

3 Current production is roughly 750,000 barrels per day, down from a peak of 2.1 million barrels

a day in 1988. Id.

4 Electric Power, U.S. DEP’T OF ENERGY, http://www.energy.gov/energysources/electricpower.htm

(last visited Sept. 23, 2010).

5 EXXON MOBIL CORP., THE OUTLOOK FOR ENERGY: A VIEW TO 2030 13 (2008), available at

http://www.exxonmobil.com/corporate/files/news_pub_2008_energyoutlook.pdf.

6 Energy API, Facts on Fuel-Natural Gas, http://www.api.org/aboutoilgas/factsfuel/ (last visited

Sept. 23, 2010).

7 Wesley Loy, Canadian Firm Already Working on Gas Pipeline, ANCHORAGE DAILY NEWS, Aug.

28, 2008, available at http://www.adn.com/money/industries/oil/pipeline/v-printer/story/5083

75.html.

8 Wesley Loy, First Nations Watch Gas Pipeline Closely, ANCHORAGE DAILY NEWS, July 14,

2008, available at http://www.adn.com/money/industries/oil/pipeline/v-printer/story/464024.html.

9 TransCanada, Exxonmobil Commit to $26B U .S. Alaska Gas Pipeline, CBC NEWS (June 11,

2009, 5:47 PM), http://www.cbc.ca/money/story/2009/06/11/transcanada-exxonmobil-alaska-gas-

pipeline.html.

Winter 2011] PREVENTING A PIPELINE TO NOWHERE 979

join the rest of North America’s two million miles of natural gas pipeline

matrix before arriving in the Midwest to heat American homes and power

American industry.10 A project of this magnitude faces many challenges, but

the pipeline’s biggest challenge may not come from shifting permafrost,

seismic activity, environmental safety requirements, or regulatory permitting

schemes. One of the biggest, and potentially the project’s costliest, challenges

is the unsettled land claims10 of the First Nations of Canada.11

A look at a map of the proposed pipeline route reveals a patchwork of

First Nations lands. The presence of these lands along the route has far-

reaching consequences for the pipeline project due to the inefficient and

lengthy process of formal negotiation currently utilized by the Canadian

government to settle comprehensive land claims,

12 and a 2004 ruling by the

Supreme Court of Canada in Haida Nation v. British Columbia.13

This Note uses the Alaska Native Claims Settlement Act

14 as a model to

propose an alternative to the formal negotiation method of land claims

settlement. This Note also discusses the Haida decision in considerable depth

because its holding sets the standard for the constitutionality of proposed

settlements. The Haida Court held that the Canadian government has a duty

to consult with, accommodate the interests of, and act honorably toward,

First Nations before beginning any development projects on land owned

outright or claimed by First Nations. 15

10 MIDAMERICAN ENERGY, GAS TRANSMISSION: PIPELINE SAFETY (2008). There are two types of

land claims: specific and comprehensi ve. Land Claims, INDIAN AND N. AFF. CAN.,

http://www.ainc-inac.gc.ca/al/ldc/index-eng.asp (last visited Se pt. 23, 2010). Specific claims deal

with past grievances of First Nations related to the Canadian government’s obligations under

historic treaties or with regard to how the government managed the First Nation’s funds or other

assets. Id. “[S]pecific claims are not necessarily land-related.” Id. Comprehensive claims always

involve land and arise in areas where First Nation land rights have not been dealt with by treaty

or any other legal means. Id. This Note only discusses comprehensive claims.

11 There is no legal definition of the term “First Nations.” Terminology, INDIAN AND N. AFF. CAN.,

http://www.ainc-inac.gc.ca/ap/tln-eng.asp (last visited Sept. 23, 2010). “First Nations” refers

generally to the Aboriginal people of Canada. Id. There are three distinct groups of Aboriginal

people: Indians, Inuit, and Métis. Id. Each group possesses a unique heritage, language, culture,

and set of spiritual beliefs. Id. Furthermore, the Communications Branch of Indian and

Northern Affairs Canada recommends avoiding describing Aboriginal people as “belonging” to

Canada. INDIAN AND N. AFF. CAN. , WORDS FIRST: AN EVOLVING TERMINOLOGY RE LATING TO

ABORIGINAL PEOPLES IN CANADA 8 (2002), available at http://dsp-

psd.pwgsc.gc.ca/Collection/R2-236-2002E.pdf. Th at is why the sentence ends with the phrase

“First Nations of Canada” instead of the phrase “Canada’s First Nations.” See generally id.

12 See INDIAN AND N . AFF. CAN., RESOLVING ABORIGINAL CLAIMS: A PRACTICAL GUIDE TO

CANADIAN EXPERIENCES 22 (2003) [hereinafter ABORIGINAL CLAIMS].

13 Haida Nation v. British Columbia, [2004] 3 S.C.R. 511 ¶ 5, 2004 SCC 73 (Can.).

14 Alaska Native Claims Settlement Act, 43 U.S.C. §§ 1601–1624 (2009).

15 Haida, 3 S.C.R. 511 ¶ 9 (Can.).