Wanted: One retired federal judge

Ottawa considers hiring former justice to lead pipeline talks with First Nations

The federal government is shopping around for a retired federal judge to help guide a renewed consultation with Indigenous communities on the Trans Mountain pipeline expansion.

The Federal Court of Appeal last month quashed the approval given to the project, saying the consultation with Indigenous communities wasn’t good enough and criticizing the lack of attention paid to the environmental impact of increased tanker traffic off the coast of British Columbia.

The Liberals are still considering whether to appeal the decision, but at the same time are looking at how they can do what the court said was lacking in order to get the pipeline work back underway.

An official close to the plan said one option being closely considered is hiring of a former senior judge, possibly a retired Supreme Court of Canada justice, to advise the government on what would constitute meaningful consultation with Indigenous communities to satisfy the conditions of the court.

The Liberals intend to announce the next steps in their pipeline plan before the end of September.

The government wants to have the pipeline’s fate decided within the next six to eight months so it is no longer an issue for the opposition parties to use against the Liberals in next year’s federal election, or potential fodder for the United Conservative Party against Premier Rachel Notley ’s NDP government in May ’s provincial election.

An official in Natural Resource Minister Amarjeet Sohi’s office would only say that multiple options were on the table.

Martin Olszynski, a professor in environmental and natural resource law at the University of Calgary, said talk of hiring a Supreme Court judge is usually intended to send a signal that a government is “taking its task seriously.”

“It will be interesting to see what role such a judge will have — whether it will be strictly advisory, or whether they may play a role in mediating the consultations themselves,” he said.

The pipeline project is at a standstill while the government figures out how, or if, it can redo Indigenous and environmental consultations to satisfy the courts.

Canada spent $4.5 billion in August to buy the Trans Mountain pipeline and associated assets from Kinder Morgan Canada.

Conservative MP Lisa Raitt demanded in question period that the government explain how it was going to get the project completed, noting Finance Minister Bill Morneau said the whole point of buying the pipeline was to ensure the expansion got built.

Morneau seemed to confirm the government’s plan is to go back and talk to Indigenous communities another time, as well as do the additional environmental reviews the court wanted.

“We must create international access for our resources and that’s exactly what we’re going to do promptly by listening and having meaningful consultation with Indigenous Canadians and considering environmental impacts that are so important,” Morneau said in the House of Commons.

The Trans Mountain pipeline has carried both raw and refined oil products from Edmonton to a marine terminal in B.C. for decades. The expansion plan is to build a second pipeline to triple the capacity and carry diluted bitumen from Canada’s oilsands to oil tankers and eventually Asian markets.

The court decision is a blueprint for what Canada still needs to do.

“The concerns of the Indigenous applicants, communicated to Canada, are specific and focused,” wrote Justice Eleanor Dawson in the 266-page decision.

“This means that the dialogue Canada must engage in can also be specific and focused.”