When the Federal Court of Appeal put a halt to the Trans Mountain pipeline project in September, there was some talk in Ottawa and Edmonton about appealing the decision to the Supreme Court. The Trudeau government has now decided not to follow that course. It will, instead, try to satisfy the court’s requirements so the pipeline can go forward.
The court told the government it had failed to take into account the potentially devastating impact of the project on the coastal environment.
The appeals court judges were baffled that the National Energy Board (NEB) during the assessment process only considered the impact of the pipeline from its source in Alberta to its end at the Pacific coast in Burnaby, B.C. The NEB acted as though what happened after the bitumen was loaded onto tankers was of no consequence or concern.
In fact, the pipeline would mean a considerable increase in tanker traffic in an environmentally sensitive area. The Pacific waters off British Columbia’s lower mainland are – to cite only one worrisome example – home to an endangered population of orca whales.
Late in September, the Trudeau government addressed this issue. It ordered the NEB to extend its purview from land to sea and do a thorough assessment of the impact of increased tanker traffic. The NEB has a little more than five months to complete that job.
The court was also scathing in its appraisal of the way the government conducted the final phase of consultations with Indigenous groups. These were the where-the-rubber-hits-the-road consultations. They took place after the NEB had approved the project in principle.
The purpose of these consultations was to determine, collaboratively with the Indigenous communities, how to build the pipeline while accommodating the concerns of the affected First Nations.
The federal government assigned public servants to conduct the exercise.
According to the court, the bureaucrats misconstrued their brief, which was to come up with a robust action plan. Instead, they told the Indigenous groups that their role was limited to listening and taking notes. They could not, the bureaucrats claimed, commit to any action beyond what the NEB had already decided.
The Federal Court of Appeal said all of that was pure balderdash. The court ruled that the federal government is legally and constitutionally obliged to conduct good-faith negotiations with Indigenous communities. The purpose of those talks would be to determine tangible ways to mitigate the impact of the pipeline project on those communities.
The point of what were called the Phase 3 consultations was not merely to allow the Indigenous people to let off steam, and the role of the bureaucrats representing the federal government was not simply to act as note-takers.
A new process led by an eminent former judge
On Oct. 3, Trudeau’s recently appointed minister of natural resources, Amarjeet Sohi, announced that the government will re-do the Phase 3 consultations. This time, Trudeau’s cabinet will not entrust the entire exercise to federal bureaucrats. The government has asked former Supreme Court justice Frank Iacobucci to lead the talks with First Nations groups.
The Vancouver-born former justice has taken on a number of difficult and delicate tasks since his retirement from the court 14 years ago.
He did an inquiry into the absence of Indigenous people on Ontario juries, in which he ruled that such under-representation was a symptom of a crisis. He studied the cases of torture of Canadian citizen Maher Arar and two others who were detained in Egypt and Syria. And he was involved in the selection of commissioners for the Indian Residential Schools Truth and Reconciliation Commission.
Now, Iacobucci has the job of finding a way to satisfy both aggrieved and offended Indigenous communities and the federal and Alberta governments anxious to get this pipeline completed as quickly as possible. The federal government has an extra incentive to make this process work. It now owns the pipeline, which it purchased from Texas-based Kinder Morgan for $4 billion.
The fact that the government will re-do the consultations does not mean the First Nations involved have the power to veto the project, however. The purpose of these consultations is not to give a green or red light to the pipeline, but rather to tangibly address the communities’ concerns, assuming the project will go ahead.
The court did not say the government would have to absolutely accede to every single demand of every single Indigenous group. It only said the government would have to engage in a real consultative process.
Karl Nerenberg has been a journalist and filmmaker for more than 25 years. He is rabble's politics reporter.
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