Sask First Nation says NEB shouldn't have approved pipeline on disputed land

Jennifer Graham, June 3, 2008, THE CANADIAN PRESS -- Construction of a pipeline has pitted a Saskatchewan First Nation against an oil and gas giant in a case that unfolded in a Federal Court of Appeal on Tuesday.

The Standing Buffalo First Nation wants a judicial review of a National Energy Board decision that allowed Enbridge Pipelines (Westspur) Inc. (TSX:ENF) to build a pipeline on what is being claimed as traditional Dakota land.

"As Dakota people, we weren't treated fairly through the NEB process," Chief Roger Redman said outside the courthouse in Regina.

The Standing Buffalo First Nation says the energy board refused to acknowledge the group's land claim when it approved the pipeline last year.

The project involved the construction of a 60-kilometre pipeline - adjacent to an already existing pipeline - to transport natural gas liquids between Alida, Sask. and Cromer, Man. The existing pipeline was converted to transport crude oil rather than gas.

In June 2007, the board wrote that Enbridge's application was in the public interest, recognizing that the facilities are, and will be, required by the present and future public convenience and necessity.

At the same time, it also said Standing Buffalo "has no legally proven rights in the area."

But lawyer Merv Phillips, who represented the First Nation on Tuesday, said it's "troubling" that the board determined the land claim issue.

"The National Energy Board only has jurisdiction, only has the ability to properly make decisions where the duty to consult and accommodate was discharged," Phillips told reporters after the hearing.

"We don't see that that was happened in this case."

The three-judge panel is being asked to quash the board's decision on the basis that the board has no jurisdiction to permit Enbridge to proceed while the land claim is still being negotiated with the federal government.

The court reserved its decision, but Redman said the answer is clear.

"The mandate of the energy board is to recognize any issues pertaining to inherent and aboriginal rights, all there has to be is suspicion of those rights," said Redman.

"We've proven our case without a doubt that there's suspicion of our rights."

Enbridge lawyer Rick Neufeld - who asked the court to dismiss the case - argued that while the First Nation may not like the energy's board decision, the process that the board followed in reaching its conclusion was fair.

Among other things, he noted that the pipeline is largely on farmland. He said it's more than 100 kilometres from the Standing Buffalo community, adding there's "simply zero evidence" the land is being used for traditional aboriginal purposes.

Neufeld also argued that the Standing Buffalo First Nation was allowed to cross-examine witnesses and present a witness panel at an energy board hearing.

"I don't think there can be any question that the National Energy Board treated these people with respect and honour," Neufeld told the court.

"I think they were pretty fairly dealt with."

It's the first of four cases in which the First Nation has intervened. The others include the Enbridge Southern Lights, the Enbridge Pipelines Inc. and the TransCanada Keystone Pipelines projects. The Keystone project involves a massive 3,456-kilometre pipeline which will transport crude oil from Alberta, through southern Saskatchewan and Manitoba to the U.S. Midwest.

"These projects can not go forward because we feel that we have outstanding interests with the Crown," said Redman.