WHAT THE FEDERAL COURT OF APPEAL GOT WRONG ON THE TRANS MOUNTAIN DECISION
What caused the Trans Mountain pipeline expansion project to come crashing to a stop? Moira Lavoie and Malcolm Lavoie make a compelling case that the Federal Court of Appeal has adopted an unreasonable standard when it comes to government consultation with Indigenous groups.
Husband Malcolm Lavoie is a law professor at the University of Alberta and well-versed in Indigenous law, while wife Moira Lavoie, a U of A law student, used to be the director of policy for former federal minister of Aboriginal Affairs Bernard Valcourt.
The Trudeau government is far from blameless on the Trans Mountain pipeline expansion project. It made mistakes in the consultation process, the Lavoies say. Most notably, as Federal Court of Appeal Justice Eleanor Dawson says in her decision, the government incorrectly advised Indigenous communities that the government was unable to impose additional conditions on the Trans Mountain expansion project beyond those already recommended by the National Energy Board.
“It does seem like the government made an error there,” Moira Lavoie said. “The government should get the law right, that’s for sure. The stakes are high.”
Overall, though, the Lavoies argue the Trudeau government did a reasonable job on the consultation, just as they say the previous Harper government did a reasonable job on the Northern Gateway pipeline consultation (which Dawson also wrote the ruling against).
“If the standard is reasonableness and the government making a good-faith effort to engage with communities, to engage with concerns in a reasonable way, it seems like the (Trudeau) government probably did that,” Moira Lavoie said.
Dawson suggests in her decision that it would have been easy for the government to address concerns raised by Indigenous communities, but with more than 100 groups involved, the process was by definition difficult, she said. “The court maybe glosses over how complicated the policy-making process can be.”
The pipeline’s original owner Kinder Morgan first engaged with 130 Indigenous communities, making impact-benefit agreements with 43 of them along the pipeline route.
Next, the National Energy Board heard from 131 Indigenous groups, then made 157 conditions on proceeding, many of which were meant to address Indigenous concerns.
After that, the federal government, including cabinet ministers, engaged directly with 117 Indigenous communities about any outstanding concerns, took careful notes and made sure to fact check before reporting the concerns to cabinet. Cabinet then reviewed all information, including the concerns of each Indigenous group and how their concerns might be accommodated. At last, cabinet approved the pipeline.
In quashing federal approval of major pipelines, the court is making an ongoing mistake, the Lavoies say. It is applying a standard of Indigenous consultation that flows out of Supreme Court cases where just one Indigenous group has an issue with the government. But what is possible and reasonable in negotiating with one group isn’t possible or reasonable in consultation on a massive pipeline project involving dozens of groups with different concerns and competing interests.
“There seems to be a failure to recognize how distinct a pipeline is as compared to some of the projects that mainly affect one or a small number of Aboriginal groups, which is where a lot of the duty-to-consult jurisprudence was developed,” Malcolm Lavoie said.
In the decision, the court said before cabinet made its final decision, federal officials should have been mandated to “respond meaningfully” to Indigenous concerns, perhaps by offering potential accommodation measures. But the Lavoies can’t see how such a process could work.
“One thing the court really pushed here is that federal officials who are representing the government need to be mandated to make decisions on the spot in real-time in these discussions about accommodation, which is problematic for a number of reasons,” Moira Lavoie said.
“One big thing is that these groups don’t necessarily have interests that align with one another, so part of the point of taking all this input, then having a cabinet decision, is that cabinet has all the information and can make a decision that is logical and balances competing interests.”
It may well be that some Indigenous groups are well-served by the current judgment, but what of the dozens of Aboriginal groups that supported this project?
And how does it serve us when a court overrules elected governments that have genuinely tried to balance competing interests on major projects for the good of us all?
With that in mind, I’ll end with an appropriate warning that Malcolm Lavoie made on previous cases involving business projects and Indigenous rights: “If courts applying the limited constitutional text in this area do not take into account the policy outcomes of their decisions, they may impose results that cause great harm.”