Haisla representatives would make that point over and over again in a long series of letters to government decision-makers. By 2009, their exasperation was obvious.  

"You have received our comments and made unilateral adjustments to your process," reads a December letter to the Canadian Environmental Assessment Agency (CEAA). "This is a one way street approach to consultation that brings to mind the old adage: 'Man proposes, God Disposes.'"

The federal government, meanwhile, insisted it was taking its duty to consult with First Nations as seriously as it could.

"Numerous comments and suggestions were received from Aboriginal groups," the CEAA wrote to Saik'uz Chief Jaqueline Thomas in November 2009, "Each comment and proposal... has been carefully considered."

Then one month later, in December, the feds made their consultation strategy for Northern Gateway official.

First Nations would present directly to a three-person Joint Review Panel. That panel would factor their concerns into its final decision on Gateway. Any outstanding issues around rights and title could be addressed by the government after the panel adjourned. And in the meantime, those concerns could be handled by a Crown consultation coordinator.

Feds defend Joint Review Panel

"The [Joint Review Panel] process has proven to be an effective means... to consider broad societal concerns, including those of Aboriginal groups," CEAA spokesperson Isabelle Perrault wrote in an email to The Tyee.

But was it all enough to meet the government's legal obligations?

"I think its very likely this whole thing will end up in Supreme Court," Robert Janes, a lawyer representing the Gitxaala First Nation and one of Canada's top practitioners of aboriginal law, told The Tyee. 

Detractors of the federal government's approach see things as follows: The Joint Review Panel has no legal power to render decisions on aboriginal right and title. Consultation after the panel adjourns makes a mockery of the 2005 Mikisew decision and others. And the Crown consultation coordinator lacks negotiating authority. 

These might seem like arcane legal points, but the very fate of Northern Gateway may be resting upon them.

"The practical reality is that these projects depend upon timely approvals," Janes said. "The kind of delay that would come from a consultation court case could be devastating."

This isn't the only legal fault line First Nations are observing.

FNs slam Enbridge consultation record

To help meet its duty to consult, the federal government is also relying "upon the consultation effort of the proponent," in this case being Enbridge. 

Those words come direct from the government's own Joint Review Panel Agreement for Northern Gateway. And its Aboriginal Consultation Framework gives some indication of how it'll all work.

Not only will Enbridge's "Aboriginal engagement activities" help "supplement the Crown record," but the government's consultation coordinator will "liaise with the proponent to gain information." 

Yet if the experiences of the Office of the Wet'suwet'en are at all typical, the entire process could be questionable.

"In terms of Enbridge's effectiveness at achieving any sort of consultation, it would be a zero out of 10," the group's natural resources manager, David DeWitt, told The Tyee.

DeWitt chronicled his frustrations in a letter to the Joint Review Panel last August, particularly the fact that Enbridge's outreach team had been overhauled several times during negotiations.

"When the new team took over, we were surprised at how little they seemed to know about the previous team's meetings," he wrote. "We began to wonder whether the previous team had taken proper, if any, notes. We still don't know whether they did."

Enbridge spokesperson Paul Stanway had this to say in response to The Tyee's repeated interview requests: "Very busy at the moment with the JRP hearings."

Did Oliver letter hurt pipeline chances?

The day before those Joint Review Panel hearings began came federal Natural Resource Minister Joe Oliver's infamous "open letter" to Canadians, the one where he attacked the "environmental and other radical groups" attempting to "hijack our regulatory system."

Though Oliver didn't mention Northern Gateway explicitly, the implication wasn't exactly subtle. 

Much media attention focussed on whether his comments would prejudice the supposedly neutral Joint Review Panel.

But the more interesting question, according to one Vancouver-based attorney who specializes in aboriginal law, is whether Oliver's comments undermine Canada's legal duty to consult with First Nations.

"On its face, this looks inconsistent with the requirement that the Crown proceeds with an open mind," Michael Lee Ross told The Tyee. "It does suggest the process has already been predetermined."

(Vancouver-based attorney Janes called Oliver's comments "incredibly ill-advised.")

Whether the Canadian courts would agree is unclear, Ross said, and no native group, with the exception of the Carrier-Sekani Tribal Council in 2006, has yet filed litigation against the government.

Still, Nigel Bankes, chair of natural resources law at the University of Calgary, "would be stunned if an environmental group or First Nation didn't have a go at it."

'New era' of Aboriginal influence

None of B.C.'s aboriginal groups have the authority to outright veto Northern Gateway, or any other development project, on their traditional territories, he said. 

A more likely scenario, assuming there was legal basis for a Supreme Court consultation challenge, is that years of procedural delays would eventually take their toll. 

"By then you've got alternatives like expanding capacity on Kinder Morgan's pipeline [from Alberta to Vancouver]," Bankes said.

How this all turns out ultimately depends on a multitude of legal and economic factors, many difficult to predict. 

But the quality of Canada's First Nations consultation on Northern Gateway may have much bigger consequences than the fate of one steel pipeline.

"It's a very important case," Peter Russell, a constitutional expert at the University of Toronto, told The Tyee. "We're very much still coming out of the old imperial era of aboriginal relations... In a way, what will happen here is a test of what goes on in this new era and how well the interests of aboriginal peoples are protected." 

More than a year of public hearings on Northern Gateway continue throughout B.C. and Alberta.

Tomorrow: Christopher Pollon reports on whether customer commitments required to make Northern Gateway pay off are firm and in place.

[Tags: Energy, Rights and Justice, Politics.]