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failed to do this, the courts have shown a willingness to put a halt to development
proposals until such time as the Crown has remedied its failure.
An overall assessment of the success or failure of the consultation and
accommodation model is beyond the scope of this paper. What can be confidently
asserted, however, is that judicial reliance on consultation and
accommodation in the case of pipelines virtually guarantees that a violation
of the constitution will occur.
WHY ARE PIPELINES DIFFERENT?
Imagine if, as was sometimes believed prior to the Tsilhqot’in decision, Aboriginal
title were necessarily confined to relatively small areas of an Indigenous
group’s traditional territory and a proposed development in that
traditional territory were something geographically and temporally discrete,
such as the logging of a stand of trees. In such a situation, it is conceivable
that there might be no overlap whatsoever between the logging
area and the areas that might eventually be found to be Aboriginal title
lands. A requirement for consultation and accommodation might therefore
be an adequate form of insurance against encroachment upon the Indigenous
group’s constitutionally protected Aboriginal title lands—a way of saying,
“While it’s unlikely that any Aboriginal title lands will be affected, we
will consult and accommodate just in case.”
Rather than being geographically discrete, however, a pipeline completely
bisects any territory through which it runs, literally cutting it in two.
Such bifurcation is, in itself, a dramatic intrusion upon and alteration of any
group’s traditional territory. Consider also how much more likely it is that
a solid line cutting hundreds of kilometres through groups’ traditional territories
will at some point intersect with whatever Aboriginal title lands must
exist than would be the case with any other form of resource development.
Note as well that the preferred route for any pipeline in this mountainous
province is likely to be along the valley corridors that would have been most
heavily used by pre-contact Indigenous peoples and are therefore the most
likely candidate lands for Aboriginal title. Even if Aboriginal title could be
guaranteed to exist only with regard to small, discrete areas, it therefore
seems almost certain that a pipeline would at some point intrude upon such
Aboriginal title lands. In fact, of course, Aboriginal title cannot be presumed
to exist over only small areas. When the Haida Nation v. British Columbia
(Minister of Forests)15 and Taku River Tlingit First Nation v. British Columbia
(Project Assessment Director)16 decisions gave rise to the consultation and
accommodation framework in 2004, it was indeed still possible that Aboriginal
title might be confined to small areas, but the 2014 Tsilhqot’in decision