New meaning for consultation
The Trans Mountain pipeline court decision continues the practice of redefining what the phrase “Indigenous consultation” means.
It’s not just listening carefully and respecting the views offered.
The new benchmark seems to require governments to actively negotiate something close to consent before a project can go ahead.
Politicians flinch when they hear the phrase “First Nations veto.” The verdict expressly states that there is no such thing.
It also says there’s no duty to reach agreement. But the decision suggests officials have to get a lot closer to consensus than they do now.
The court’s expectations that hearing panels have to engage in a lot more give and take will raise the bar on what’s expected from all those consultations with First Nations.
The requirements have been ratcheted upward for years. This week, they kicked up another notch.
The judgment doesn’t use the word “negotiate” in describing what is needed. But it is inferred from the outline of a process that would have met the court’s approval.
The government lost the case because the National Energy Board didn’t “engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”
Fulfilling those new requirements would change the whole tone at hearings. Currently, officials listen to presenters, sometimes cross-examine and digest huge volumes of information. Then they reach conclusions and recommend to decision-makers — cabinet.
The court wants to see those hearing panels engage fully with presenters, pitch counter-proposals and discuss “what ifs” or workarounds on any concerns they have with any major projects. Negotiate, in other words. And that would come after the proponents of projects have presumably spent years doing the same thing.
It’s striking how many times the lengthy decision approves of the National Energy Board’s handling of the consultation phase. The hearing panel met all the expectations, all the way through the lengthy hearings. Then right near the end, the court tosses the government for a major loss, saying even though it did a lot right, it didn’t go far enough.
“Canada acted in good faith and selected an appropriate consultation framework,” said the judges. But at the last stage of that framework, just prior to writing the report and submitting it to cabinet, “Canada’s efforts fell well short of the mark.”
The ruling echoes what the same court — and some of the same judges — declared two years ago when it rejected the consultation process for the Northern Gateway pipeline. The lesson was there, but apparently didn’t get learned. Does anyone in government read these things?
After outlining how close the government got to meeting all the requirements, and how comprehensively it failed right near the finish line, the judges were optimistic a quick fix is possible.
A “prompt redetermination” of specific, focused issues is what they want.
There’s no doubt that Ottawa will back up and take another run at getting approval. But it might take a lot longer than the decision suggests. And a lot of things can change in such a pressurefilled situation, when there’s so much at stake.
Just So You Know: Prime Minister Justin Trudeau might want to hedge his purchase of the pipeline, which shareholders approved by vote precisely as the project was thrown for a loss.
Maybe he’ll buy a railway as well. Because the default option for moving oil through B.C. is rail cars, alarming and risky though it might be.
Oil shipments have been increasing by that mode over the years, to the point where the B.C. government is trying to get a firm count.
That count might change, given Alberta Premier Rachel Notley’s enraged response to the court decision.
Her government has laid all the groundwork needed for the turn-off-thetaps gambit — curtail shipments to B.C. to drive fuel prices up and punish the government for its pipeline delays.