Ruling increases uncertainty among resource industry groups

The Federal Court of Appeal’s ruling that consultations for the Trans Mountain project were inadequate has raised concerns from the resources industry about added uncertainty around the duty to consult Indigenous communities, though experts say the precedent adds further clarity to what it means to meaningfully engage. Thursday’s ruling found the federal government failed in its duty to meaningfully consult with First Nations on major projects as required by established legal principles and Indigenous rights. The court said the National Energy Board’s review of the proposal was so flawed that the federal government could not rely on it as a basis for its decision to approve the expansion. The court said that, among other issues, the Crown consultation team was missing someone representing government who could engage interactively and could discuss, at least in principle, how to accommodate concerns. “There was no meaningful two-way dialogue,” Justice Eleanor Dawson wrote on behalf of a panel of judges. The ruling means the government will have to redo part of its consultation with Indigenous groups. The court’s ruling doesn’t substantially change legal precedent - which has continued to evolve since court rulings in the early 2000s delivered enhanced recognition of the Crown’s constitutional obligation to consult, and in some cases, accommodate Indigenous communities - but adds clarity to the threshold required to genuinely understand the concerns of the Indigenous applicants, said David Wright, who teaches resource and Indigenous law at the University of Calgary. “It’s not enough to listen, it’s not enough to just transmit notes back to decision-makers,” he said. “This decision takes things further along the path to clarity in terms of what’s required to discharge consultation obligations, but some uncertainty remains.” For industry, the decision is the latest setback in attempts to build major resource projects in the country and adds another layer of uncertainty for investors. Chris Bloomer, CEO of the Canadian Energy Pipeline Association, said the federal government needs to repair its ailing regulatory system. “We gotta fix the problem, we can’t keep blaming. We’re at this point where let’s stop trying to find things to blame on people or organizations, let’s fix the problem.” The ruling shows the regulatory system is too complicated, said Tim McMillan, CEO of the Canadian Association of Petroleum Producers. “I think it reaffirms that, in Canada, we have a system that’s so complex that even governments struggle with it ... Canada needs to reposition itself to be competitive, and having a regulatory system that is understandable, streamlined, simple, I think, isn’t too much to ask.”