Can they build Trans Mountain while respecting Indigenous rights and protecting orcas?

Rally against Kinder Morgan oil pipeline on Burnaby Mountain. Photo: Mark Klotz/Flickr

Last week, three Federal Court of Appeal judges told the Justin Trudeau government it could not go ahead with a pipeline that would carry Alberta oil sands product to the sea.

The main purpose of the Trans Mountain pipeline-twinning project is, in Alberta Premier Rachel Notley's words, to end Alberta's "landlock" and find markets for its unrefined bitumen in countries other than the U.S. Both Notley and Trudeau point out it makes eminent good sense that we should reduce our dependence on U.S. markets, considering how Trump's U.S. has been treating Canada of late. 

Prime Minister Trudeau approved Trans Mountain in 2016, based not on his promised new environmental assessment process, but on the process Stephen Harper had bequeathed him. At the time, Rachel Notley lauded the prime minister for his "extraordinary leadership."

When the Federal Court of Appeal put a halt to the project, Notley decided to hold Trudeau responsible.

"Successive federal governments have created this mess," she said. "It was broken in Ottawa and now Ottawa needs to fix it."

The Alberta premier then announced her government would withdraw from the federal climate change plan. It was a transparent pressure tactic. Her aim was to get the federal government to act quickly and decisively on Trans Mountain.

Notley wants Trudeau to fix the consultation process with Indigenous communities, which the court deemed inadequate, and deal with the court's concerns about the impact of marine transport on the coastal environment. At the same time, the Alberta NDP premier urges her federal counterparts to immediately appeal the Federal Court of Appeal decision to the Supreme Court.

Threatened orcas and faulty Indigenous consultations

The Federal Court of Appeal halted the project for two reasons.

First, the court said the National Energy Board (NEB) approval process totally ignored the possibly devastating environmental impact of tankers carrying toxic bitumen traffic off the B.C. coast.

In addition, the court took the government to task for the way it conducted the crucial last phase of consultations with Indigenous groups. Federal officials did not engage in genuine dialogue, the judgment stated, they only listened politely and took notes.

The proposed pipeline would carry unrefined bitumen from northern Alberta through the western part of that province and then across the entire breadth of British Columbia to tankers on the coast, in Burnaby. Those tankers would carry the bitumen to Asian refineries.

There would be no point in transporting bitumen all the way to the B.C. coast just to leave it there. There are no refineries in Burnaby. The whole point of the pipeline project is to get the unrefined oil sands product to buyers in Asia.

Yet the National Energy Board and federal government chose not to consider the impact of increased tanker traffic on the coastal environment. The court judgment points out that one potential impact of those bitumen-loaded tankers would be to endanger an already threatened resident population of orca whales. There are only 75 southern resident orca left in the world.

The judges pointed out that the government deliberately designed the approval process in such a way as to avoid triggering the Species at Risk Act (SARA). SARA, if it applied, would require the government to take steps to protect the whales. In the words of the judgment:

"This exclusion of project-related shipping permitted the Board to conclude that  … the Species at Risk Act did not apply to its consideration of the effects of project-related shipping."

British Columbia NDP MP Nathan Cullen believes this exclusion was more than an oversight on the part of the Trudeau government. He told reporters he is convinced the Trudeau government wanted to do an end-run around SARA, the orca whales be damned.

As to consulting with Indigenous groups, the judgment is withering in its condemnation of that process.

The court aims its main fire at the consultations that took place between the federal government and Indigenous groups after the NEB issued its report recommending the project should proceed. These were the co-called Phase Three consultations. In theory, this is where the rubber should have met the road. The federal government and Indigenous groups should have collaboratively determined how to get the pipeline built while fully respecting Indigenous rights, concerns and interests.

That is not what happened.

Instead of seriously consulting, federal officials used the process as a pressure valve. Their aim was to get the Indigenous groups to blow off steam, all the while claiming they could do nothing not already specified in the NEB report. The federal court  judges consider this approach to consultation to have been outrageous. It is worth reading what the court had to say on this at length:

"Missing was a genuine and sustained effort to pursue meaningful, two-way dialogue … Very few responses were provided by Canada's representatives in the consultation meetings. When a response was provided it was brief, and did not further two-way dialogue … There was no indication that serious consideration was given to whether any of the National Energy Board's findings were unreasonable or wrong. Nor was there any indication that serious consideration was given to amending or supplementing the Board's recommended conditions."

Bureaucrats not the cavalry

Anyone who has ever witnessed consultations between federal officials and First Nations will recognize the syndrome. Too often, federal officials assigned to consult with First Nations know a decision has already been taken and that their only role is to placate the affected Indigenous groups. Their mandate is to be polite and as deferential as possible. They should listen attentively and take notes, but commit to nothing. It is a time-honoured practice. Pat the people on the head, utter soothing words, then ignore their concerns. In Canada, we don't send in the cavalry, we send in bureaucrats.

The court judgment points out that when officials told their Indigenous interlocutors that they were entirely bound by the NEB's report, they were not telling the truth. In fact, the buck stops with the federal cabinet, not the NEB. The cabinet has the ultimate constitutional responsibility to consider the impact of a project on Indigenous communities.

If there is a silver lining for the government, one can find it in the court's recommendation that "the concerns of the Indigenous applicants … are specific and focused. This means that the dialogue Canada must engage in can also be specific and focused. This may serve to make the corrected consultation process brief and efficient while ensuring it is meaningful. The end result may be a short delay …"

A short delay -- both the Trudeau and Notley governments probably can live with that, assuming it is possible to, without delay, devise strategies to mitigate the potential harms to the coastal environment of increased tanker traffic. Both Notley and Trudeau have indicated they think such mitigation is quite feasible, which raises the question: Why didn't the government come up with those strategies in the first instance?

A pipeline that has all politicians scrambling

The politics of all this are dense and divisive.

The federal NDP and the Alberta NDP are on opposite sides. Federal NDP Leader Jagmeet Singh says the federal government should cut its losses and scrap the project, full stop. And his opposition is not limited to the issues the court raised. Singh underscores the more fundamental issue of climate change. He says that rather than buying pipelines the Liberals should invest massively in "bold renewable energy projects that would help, rather than hinder, efforts to meet our climate change targets."

The Trudeau Liberals have tried blaming the Harper Conservatives for the flawed approval process that so antagonized the Federal Court of Appeal. But those same Liberals quite deliberately chose to maintain that process for this project. They could have adopted a new process first and then triggered an assessment of Trans Mountain. They chose to proceed the other way around.    

Meanwhile, the federal Conservatives are trying to portray themselves as the friends of workers -- energy sector workers -- and supporters of more robust consultations with First Nations communities. It is hard to imagine that any approval process undertaken by the Conservatives would have been in any significant way different from Trudeau's.

The Andrew Scheer Conservatives are taking the Liberals to task for, in essence, doing exactly what they would have done.

Photo: Mark Klotz/Flickr

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