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LEGAL REPORT: ENERGY & ENVIRONMENT "Practically speaking, delay is a weapon to extract concessions. . . . Everybody knows that and everybody is prepared to work within that understanding." — LEWIS MANNING, LAWSON LUNDELL LLP said to exist notwithstanding the fact that aboriginal communities have been given an unfettered opportunity to be heard. This assertion seems to me to represent an impoverished view of the consulta- tion obligation because it would involve a repetitive and essentially pointless exercise. Except to the extent that aborig- inal concerns cannot be dealt with, the appropriate place to deal with project- related matters is before the NEB and not in collateral discussion with either the [Governor in Council] or some arguably relevant ministry." Nevertheless, how cases like the Alberta ones will play out remains to be seen, especially given that in the Bro- kenhead Ojibway case at least, Barnes' judgment hinged in part on his assess- ment that the pipeline proposal didn't greatly threaten its rights in the first place. Further complicating matters is the fact that in some areas, the federal government has delegated to the prov- inces its own duties to First Nations, a situation that creates varying standards for consultation across different levels of government, says Randall Block, a part- ner with Borden Ladner Gervais LLP in Calgary. "The rules get somewhat nebu- lous when you're trying to satisfy the duty to consult because you've got two levels of government," he says. As a result, Manning, who is defend- ing three other Manitoba pipeline cases on behalf of the Canadian Association of Petroleum Producers, hopes the cases might at least bring some clarity. "I think this is an area where you're going to see more evolution in the law, and rightly so. There are so many outstanding land claims that you can't stall them forever. Somebody has to sit down and start to apply the law and decide what's there," he says. In the meantime, however, he notes industry is worried the litigation will create delays, a scenario already seen in the Mackenzie Valley gas pipeline www. C ANADIAN Law ye rmag.com SEPTEMBER 2009 51 Untitled-2 1 2/11/09 12:24:44 PM project. In that case, the courts ruled in favour of the Dene Tha' First Nation over claims the government leſt it out of discussions on the project. In the end, it won $25 million in compensation. "Practically speaking, delay is a weapon to extract concessions," says Manning. "That's really what happens. Everybody