'More was required of Canada': Ruling shows where Ottawa fell short with First Nations on Trans Mountain
Federal Court of Appeal decision calls out Ottawa on duty to consult
As First Nation appellants celebrated their win at the Federal Court of Appeal on Thursday, they also pointed out the specific failures of the federal government's approval of the Trans Mountain pipeline expansion as confirmed in the ruling.
"Their consultation process was in effect note-taking; there was no meaningful addressing of our concerns throughout any of the processes," said Khelsilem, an elected councillor of the Squamish Nation, which was a party to the case.
"For years Trudeau has been standing by their consultation plan and it failed. It failed completely and the courts agreed with us."
The duty to consult is a phrase often heard in relation to development projects and First Nations. At its core is Section 35 of the Canadian Constitution, which recognizes Aboriginal and treaty rights, and multiple court rulings that are constantly redefining what Indigenous rights look like in this country, and under what circumstances the government can make a decision that infringes on Indigenous rights.
Their consultation process was in effect note-taking; there was no meaningful addressing of our concerns throughout any of the processes.- Khelsilem, an elected councillor of the Squamish Nation
Consultation does not come with a one-size-fits-all manual; the degree of consultation required and the accommodations that may need to be considered depend on the project under consideration and the potential impacts on a community.
Each of the six First Nations that appealed the Trans Mountain expansion approval had been voicing their own specific concerns related to the project, ranging from the impacts of increased oil tanker traffic in the Burrard Inlet to the impact of the expansion on the main aquifer that residents in the Coldwater community rely on for their drinking water.
Canada had a duty to each of those First Nations to give "serious consideration" to their concerns and accommodation measures required, the Federal Court of Appeal ruling found. Further, the court found that Canada needed to explain how those concerns impacted the decision to approve the project.
"Canada fell short of its obligations," the court said.
Where the consultation fell short
The Federal Court of Appeal found that parts of the government's consultation requirements were met and that things had improved compared to, say, the level of consultation that happened during the approval process of Enbridge's Northern Gateway.
It wasn't until the last phase of the years-long review process where the court found Ottawa fell short.
Similar to the approval process of Northern Gateway, the government used a multi-phased consultation framework to guide its decision-making. The court found there wasn't a problem with the framework the federal government used, despite the appellant First Nations' opposition to the framework itself.
But, "at the last stage of the consultation process prior to the decision of the Governor in Council … Canada's efforts fell well short of the mark set by the Supreme Court of Canada," states the ruling.
"Canada acknowledged it owed a duty of deep consultation to each Indigenous applicant. More was required of Canada."
What happened in the final phase
During the first two phases of the consultation framework, the court found the majority of the government's responsibility to consult with First Nations was delegated to the National Energy Board (NEB).
Previous court cases have ruled the federal government can delegate this job to administrative tribunals like the NEB, but in the end it is the responsibility of the Crown (the federal government) to make sure First Nations are adequately consulted, and if necessary accommodated.
When it comes to the Trans Mountain expansion approval, it was in the last stretch, or Phase III, where the government circled back to First Nations to fulfil this duty but "fell well short of the required mark."
This phase of the government's consultation started in February 2016 and lasted until November that same year.
The court took particular issue with how a Crown consultation team carried out its work in this time period, how the Crown appeared reluctant to deviate from what the NEB already decided on the project, and lastly found that Ottawa had come up with an "erroneous view that it lacked the ability to impose additional conditions on Trans Mountain."
Matthew Kirschner, part of the legal team for Coldwater Indian Band, said the consultation process was flawed from the outset.
"Coldwater has a number of issues that were not seriously considered by the government — the aquifer was the biggest one in the court case," he said. "But there are dozens of issues that the government let slip by, wouldn't seriously consider, didn't send anybody to the table that had any authority to engage in meaningful consultation with Coldwater."
Ottawa approved the expansion of the Trans Mountain pipeline in late November 2016 with 157 conditions, as recommended by the NEB. The board announced its approval of the project five months earlier that May.
'It has to be a two-way dialogue'
Lawyer Eugene Kung, who works closely with the Tsleil-Waututh Nation, said it's telling to see that Ottawa approved the expansion without making any changes to the 157 conditions put forth by the board.
"The National Energy Board's recommendations were adopted wholesale, not a single change. So that's a really clear sign to me that the engagement process was meaningless," he said.
The National Energy Board's recommendations were adopted wholesale, not a single change. So that's a really clear sign to me that the engagement process was meaningless.- Eugene Kung, lawyer, who works closely with the Tsleil-Waututh Nation
Kung said he doesn't see the Federal Court of Appeal ruling changing anything in regards to the duty to consult, rather it's yet another reference to what the Supreme Court of Canada has already decided.
"It has to be meaningful. It has to be a two-way dialogue. You can't just send notetakers and then not actually engage in any meaningful way. That's not new and that's something Canada should have known going into this," he said.
In the case of Trans Mountain the court found that meaningful dialogue was missing from the final stage of the consultation process.
"Canada was obliged to do more than passively hear and receive the real concerns of the Indigenous applicants," the ruling said.
With the approval of the pipeline expansion now on hold, it will be up to the federal government to decide how it plans to proceed. If it decides to push forward on the project, the court has ruled that Ottawa will have to redo its third phase of consultation with First Nations.
Finance Minister Bill Morneau said Thursday the federal government is reviewing the decision but is determined to proceed with the project.
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