GRAPPLING TOWARD THE END OF ‘NO.’

Like most Canadians, I spent the Labour Day weekend reading the Federal Court of Appeal’s 254-page decision in the case of the Trans Mountain Pipeline.

OK, just kidding. Most Canadians probably didn’t do that. It’s hardly a page-turner, even if it is double-spaced. I can’t swear to having read every word but I wanted to see what investors in this country are now up against in doing anything big that involves energy or the environment.

They’re up against a lot. The suit was brought by Vancouver, Burnaby, two environmental groups and several Aboriginal bands and nations, some of which — the Squiala First Nation, for instance — are tiny. Squiala’s website says it has 171 members, all descendants of a couple who married in 1928. Tiny is neither here nor there, of course. If a government or anyone else does you harm, that’s a problem no matter how big you are. This page doesn’t favour steamrolling people. But tiny does bear on the ease of consultation, which is what the court’s decision half turned on. (The other half concerned the effect of increased shipping on killer whales, which I won’t address here.)

The decision’s bottom line did nix the Trans Mountain project, at least temporarily. But several preliminary decisions actually went in its favour. The process Ottawa set up for consulting and deciding was fine. It wasn’t perfect but “Canada is not to be held to a standard of perfection in fulfilling its duty to consult,” Justice Eleanor Dawson wrote in the appeal court’s decision. The National Energy Board not allowing oral cross-examination of all witnesses was OK, given how many people and groups received standing before the NEB. And the feds worked hard and in good faith during consultations to make sure all views were recorded accurately and passed on to “decision-makers.”

In fact, one reason the court’s written decision is so long is that it describes the consultations in some detail. Minutes were taken for most, if not all meetings, and participants

COULD THE GOVERNMENT REALLY PUT A DECISION-MAKER ON THE GROUND TO ‘GRAPPLE’ WITH NATIVE COMMUNITIES AND ENVIRONMENTAL GROUPS?

were asked to approve and amend the minutes before they went forward.

According to the court, however, when the process got to the third of four phases, federal decision-makers did not “grapple” sufficiently with participants’ concerns. “Phase III” ran from the close of the NEB hearings until cabinet’s decision on the project, and focused on treaty issues and “incremental accommodation measures that should be considered by the Crown to address any outstanding concerns.” The three-judge panel ruled that because not enough grappling took place, the entire consultation was flawed and the project should be sent back to cabinet for “prompt redetermination.”

So, what’s grappling? In the examples the court gives, after bands submitted their concerns and proposals the feds seldom supplied precise responses to the proposals saying yes or no or explaining why it was yes or no — although a response obviously could be inferred from whatever accommodations cabinet did in the end implement. For example, one nation, population 1,855, wanted: a complete new nation-to-nation consultation protocol, a spillage fee to pay for a spill-response centre on its territory, and a per-barrel resource development tax. Its requests were duly minuted and published, but it received only a pro forma response. The court says “meaningful dialogue required someone representing Canada empowered to do more than take notes — someone able to respond meaningfully to the applicants’ concerns at some point in time.”

Here it would have been good to read about how large organizations like the Government of Canada actually work. Many of these consultations operated at a highly micro level. Could the federal government really put a decision-maker on the ground to “grapple” with many small native communities and environmental groups, one who was empowered to go on the record in a minuted way on why such-and-such could or couldn’t be done?

For good or ill, the federal government has only a few decision-makers: the prime minister, relevant ministers, their deputies. For persuasive reasons of precedent and consistency, it’s unlikely to decentralize decision-making further than that. And given 21st-century litigiousness, it’s unlikely to want to go on the record in minuted meetings saying: “We’re doing this or not doing that for reasons A, B and C.”

More to the point, will a modern government tell any group or community, on the record, that: “We have decided against your request for the following reasons” and then argue the reasons back and forth? Maybe governments should do that. If they did, my bet is that one word would pretty quickly disappear from any and all public, official, on-the-record “grappling” and that word is “no.”

Governments that decide to accommodate requests aren’t shy in letting the world know that’s what they’ve done. Petitioners who don’t get what they want aren’t shy, either, in complaining about it. Judging governments by their actions, not their words, is a more realistic way of doing things than public grappling.