Worth con­sult­ing

The Compass - - Editorial -

It’s a court de­ci­sion on the other side of this coun­try, but it’s one that gov­ern­ments in the At­lantic re­gion should prob­a­bly sit up and take no­tice of.

On Thurs­day, Aug. 30, a judge of the Fed­eral Court of Ap­peal halted the con­struc­tion of the Trans Moun­tain Pipe­line ex­pan­sion for two main rea­son, es­sen­tially send­ing the project back for an ex­panded en­vi­ron­men­tal re­view.

One of the grounds for halt­ing con­struc­tion seems, in ret­ro­spect, al­most ob­vi­ous: the court ruled that, when the en­vi­ron­men­tal im­pacts of a project are un­der re­view, you ac­tu­ally have to re­view all of the en­vi­ron­men­tal im­pacts. The re­view of the pipe­line project by the Na­tional En­ergy Board stopped at the ocean’s edge, and failed to mean­ing­fully con­sider the im­pact of a large in­crease in marine tanker traf­fic. If the tankers wouldn’t be there with­out the pipe­line ex­pan­sion, well, those tankers are nec­es­sar­ily part of the en­vi­ron­men­tal im­pact of the pipe­line ex­pan­sion.

For gov­ern­ments here, that points to a need to in­clude all facets of projects un­der re­view. If you’re re­view­ing the ex­pan­sion of a salmon hatch­ery, that re­view should prob­a­bly in­clude what­ever ex­pan­sion is likely to hap­pen where those salmon are be­ing grown to full size, for ex­am­ple.

But the other thing that gov­ern­ments here should be pay­ing at­ten­tion to is a ground of ap­peal that’s likely to sur­face more and more of­ten in all kinds of gov­ern­ment-sup­ported projects: mean­ing­ful con­sul­ta­tion with Indige­nous groups.

The Supreme Court of Canada has al­ready ruled in other cases that gov­ern­ments have to con­sult with Indige­nous groups about is­sues that af­fect those groups; the level of con­sul­ta­tion re­quired de­pends on how sig­nif­i­cant the im­pacts of de­ci­sions may be.

In Trans Moun­tain, the fed­eral gov­ern­ment didn’t do enough.

“Canada failed ... to en­gage, di­a­logue mean­ing­fully and grap­ple with the real con­cerns of the Indige­nous ap­pli­cants so as to ex­plore pos­si­ble ac­com­mo­da­tion of those con­cerns. The duty to con­sult was not ad­e­quately dis­charged,” Judge Eleanor Daw­son wrote. “In the present case, much turns on what con­sti­tutes a mean­ing­ful process of con­sul­ta­tion. Mean­ing­ful con­sul­ta­tion is not in­tended sim­ply to al­low Indige­nous peo­ples ‘to blow off steam’ be­fore the Crown pro­ceeds to do what it al­ways in­tended to do.”

The judge ruled that, while fed­eral of­fi­cials lis­tened to Indige­nous con­cerns, that’s as mean­ing­ful as the con­sul­ta­tions were.

“Canada was re­quired to do more than re­ceive and un­der­stand the con­cerns of the Indige­nous ap­pli­cants. Canada was re­quired to en­gage in a con­sid­ered, mean­ing­ful two-way di­a­logue . ... For the most part, Canada’s rep­re­sen­ta­tives lim­ited their man­date to lis­ten­ing to and record­ing the con­cerns of the Indige­nous ap­pli­cants and then trans­mit­ting those con­cerns to the de­ci­sion-mak­ers.”

The les­son, in case it isn’t al­ready clear? Lis­ten­ing is one thing. Con­sul­ta­tion is a two-way street.

It’s a les­son that could eas­ily arise for any of this re­gion’s four pro­vin­cial gov­ern­ments.

Lis­ten­ing is one thing. Con­sul­ta­tion is a two-way street.

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