There must be a way forward

Last August, the Federal Court of Appeal quashed approvals for the Trans Mountain oil pipeline from Alberta to the Pacific coast in Burnaby, B.C.

In that case, the court ruled that Canada had failed to engage meaningfully with Indigenous groups and look for ways to accommodate their concerns.

By most accounts, another pipeline project — the Coastal GasLink from northeastern British Columbia to an approved export terminal in Kitimat — did far better on that front.

Coastal GasLink met its environmental requirements and started consulting with Indigenous communities years ago. It successfully signed agreements with the 20 different elected Indigenous band councils on reserves along the pipeline’s entire 670-kilometre route.

That’s no easy feat. And those deals will bring well-paying jobs and much needed economic development, including more than $600 million in contracts for Indigenous businesses in northern B.C. One band council has even called the process a good example of the “pathway to reconciliation.”

And yet, as the RCMP arrests of antipipeline Indigenous protestors this week demonstrated, this project still finds itself in a mess. The protests are coming from the hereditary chiefs who claim it is they — and not elected band councils — who rule over traditional lands that have never been ceded by treaty.

Old and complicated issues between elected band councils, which governments and businesses have long dealt with, and the hereditary chiefs (the traditional form of Indigenous governance) are not ones that a pipeline company, or any company for that matter, can reasonably be expected to resolve. That is a federal responsibility.

All a company can do is follow the rules that have been laid out by governments and the courts. And when that happens and it still faces these challenges it raises questions about how any energy project will ever get built in Canada.

As far as pipelines go, this isn’t even a particularly controversial one. It doesn’t involve transporting bitumen from the oilsands, which comes with fears of significant environmental damage in the case of a spill, but much cleaner natural gas.

B.C.’s NDP government has lauded the environmental and economic benefits of the project. As have the federal Liberals.

Indeed, just a few months ago, Prime Minister Justin Trudeau claimed the $40-billion private sector investment in the liquefied natural gas plant in Kitimat, which is tied to this pipeline, was “a vote confidence in a country that recognizes the need to develop our energy in a way that takes the environment into account, and that works in meaningful partnership with Indigenous communities.”

But when the Wet’suwet’en hereditary chiefs put up blockades, bringing controversy to the fore, those same governments seemed keen to keep a low profile, and stay out of what Trudeau now calls “not an ideal situation.”

The dream situation, of course, is that there is some sort of perfect approval process that can be followed and, at the end, everyone will be happy. But the question for now remains what to do when that doesn’t happen.

On that front, the courts have been helpful. The Supreme Court has ruled that Indigenous communities must be consulted but they do not have a veto right over resource development projects. And the Federal Court of Appeal ruled in the Trans Mountain pipeline case that it is the process — it must be a good one — that matters.

So, when a pipeline project like this one follows a legitimate consultation process that achieves consensus with all the elected band councils involved it shouldn’t then be open to being scuttled by another group of Indigenous leaders.

For there to be any incentive for companies to engage in a good process, they need to be assured that the government will have their back. They need to know that if obstacles arise the government will sensitively but firmly help guide it along, if need be.

When a pipeline project achieves consensus with band councils, it shouldn’t be scuttled by other Indigenous leaders