No pipeline veto for First Nations
By ruling that First Nations can’t veto, NDP could proceed with other items
Premier John Horgan was quick to turn the page last week after the Supreme Court of Canada refused a last-ditch challenge from several B.C. First Nations to the Trans Mountain pipeline expansion.
“Litigation has run its course from the province’s perspective,” said Horgan. He noted that B.C. had not even bothered to intervene in the application the high court had rejected.
“I still maintain that Vancouver is not the ideal location for a diluted bitumen export terminal,” said the premier.
“The courts and the federal government have said otherwise.”
B.C. will work with Ottawa, now the owner of the project, “to make sure that our coast has got every available protection in place for the increase of tanker traffic.”
But as for Thursday’s court decision, Horgan left any comments “to the Indigenous Nations that took the issue to the Supreme Court of Canada.”
Not surprising that the premier wanted to put the litigation behind him.
His government spent the better part of three years and hundreds of thousands of dollars in legal costs in a futile effort to use “every tool in the tool box” to stop the pipeline expansion.
But, though Horgan was not likely to admit it, the high court decision should make it easier for B.C. to proceed with other major projects, including ones the NDP does support.
In rebuffing the First Nations challenge, the Supreme Court let stand a decision by the Federal Court of Appeal to uphold the federal cabinet approval of the pipeline expansion.
The lower court grounded its decision in earlier high court judgments on government obligations to First Nations. The result is a court-authored guidebook for handling project approvals in First Nations territory.
Some passages in the decision have particular relevance to the Horgan government goal of reconciliation with First Nations and its endorsement of the UN Declaration on the Rights of Indigenous People. Horgan has insisted that neither the UN declaration nor the principle of reconciliation constitute a veto for First Nations. The three judges on the Federal Court of Appeal expressed a similar view.
“Reconciliation does not dictate any particular substantive outcome,” they wrote in a unanimous decision back in February.
“Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists.”
As for the UN declaration’s promise of “free, prior and informed consent” for First Nations, the court held: “Canada expressed its desire to seek to secure free, prior and informed consent at the start of the re-initiated consultation process. That being said, Canada was under no obligation to obtain consent prior to approving the project. That would, again, amount to giving Indigenous groups a veto.”
The court also addressed the obligation of governments to consult First Nations on projects within their traditional territories and to accommodate their interests, if possible.
The obligation means Indigenous people are entitled to “the opportunity to make submissions for consideration, formal participation in the decision-making process, provision of written reasons to show that Indigenous concerns were considered and to reveal the impact they had on the decision and dispute resolution procedures like mediation or administrative regimes with impartial decision-makers.”
But the court then added a caveat: “Imposing too strict a standard of perfection, reasonableness or meaningfulness in assessing whether the duty to consult has been adequately met would de facto create a veto right.”
As for accommodation, “like consultation, it does not guarantee outcomes. It is an ongoing give-and-take process.” Outcomes “cannot be dictated by Indigenous groups.”
In finding that Ottawa had met all the necessary tests on the pipeline expansion, the panel of judges emphasized that the process of consultation and accommodation imposes obligations on First Nations, as well.
“Indigenous groups must not frustrate the Crown’s reasonable good faith attempts nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached, ” wrote the judges.
“Although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try to veto it.”
So, to recap: First Nations do not have a veto. Consultation and accommodation is a right to a fair process, not to a particular outcome. First Nations can’t just dig in and expect the project be cancelled.
Not surprising that Indigenous leaders expressed disappointment over last week’s outcome at the high court. But for B.C., the decision could have implications for a range of resource development and infrastructure projects.
The New Democrats decided to continue construction of the Site C hydroelectric dam, despite challenges from some First Nations. They’ve supported construction of the Coastal GasLink natural gas pipeline, despite opposition from hereditary chiefs of the Wet’suwet’en First Nation.
In both instances, the provincial government took the position that First Nations were entitled to consultation and accommodation, including substantial benefit-sharing agreements as compensation.
But in both cases, the province also rejected the notion that First Nations had a veto over the projects.
While circumstances alter cases, as the lawyers say, the court decision on the Trans Mountain expansion would appear to vindicate the NDP approach on both Site C and Coastal GasLink.
It could also provide the template for a provincial government approach on future energy and infrastructure projects in the traditional territories of B.C. First Nations.
His government spent the better part of three years and hundreds of thousands of dollars in legal costs ... to stop the pipeline expansion.