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. DEPT 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. 5115, 2004 SCC 73 (Can.).
14 Alaska Native Claims Settlement Act, 43 U.S.C. §§ 16011624 (2009).
15 Haida, 3 S.C.R. 511 ¶ 9 (Can.).

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