Today’s column will examine the “duty to consult” issue, while tomorrow’s will address environmental impacts of marine shipping

Last week, Alberta Premier Rachel Notley was angry about the Federal Court of Appeal’s decision to quash federal approval of the Trans Mountain Expansion project and blamed Justin Trudeau’s government. Is the Prime Minister to blame? Yes and no, say Energi News experts: while the issues are complex and some of the processes (e.g. indigenous consultation) not as clear as they might be, the feds also have to accept responsibility for what could be a nine to 12 month construction delay.

The court overturned the approval because of two issues.

Rachel Notley, premier of Alberta.

One, the National Energy Board’s refusal to consider the environmental impacts from project-related marine shipping (i.e. more oil tankers off the West Coast). The court did not dismiss the NEB’s report, it doesn’t have the power.

But cabinet approval is based upon consideration of its findings, which “were so flawed that the Governor in Council [federal cabinet] could not reasonably rely on the Board’s report.”

In other words, Trudeau and company didn’t have enough information – or the information was faulty – to properly arrive at a conclusion.

The governor in council is required to respond to a report as defined by the terms of the legislation. The NEB report did not meet that standard,” because it excluded the impacts of marine shipping, Prof. Margot Young of UBC law school said in an interview. 

Two, the government “acted in good faith and formed an appropriate plan for consultation,” but the last stage of consultation (Phase III took place Feb. to Nov. 2016) “fell well short of the minimum requirements imposed by the case law of the Supreme Court of Canada,” according to the decision.

That minimum requirement is responsive consultation, “a considered, meaningful two-way dialogue” that demonstrates the government both heard the indigenous communities’ grievances and took some form of action to remedy the problems.

Or, at the very least, explained why it couldn’t or wouldn’t “accommodate” the First Nations.

Instead, according to the court, “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,” who then did nothing with the information.

Margot Young, UBC law professor.

Stenography is not dialogue or consultation, is the essential message here.

Prof. Nigel Bankes, chair of Natural Resources Law at the University of Calgary, says one of two options would reasonably be expected to happen if meaningful consultation had taken place.

“One, additional terms and conditions, or changes in existing terms and conditions, or direction back to the NEB to reconsider on the basis of what the crown had heard. Two, a good set of reasons why none of the above occurred. Neither happened, so it’s clearly a shortcoming on the part of the Crown,” he said in an interview. 

The bit about case law is important, says Prof. James Coleman of the Dedman School of Law, Southern Methodist University: “No one really knows what kind of consultation is required and it’s a difficult task.”

There are no commonly accepted guidelines, no handbook for the government’s consultation team. Just past rulings by the Supreme Court of Canada, which lawyers comb through for clues about what the courts think constitutes meaningful consultation.

“The court was clearly looking for someone from the government who could walk into the room, listen to First Nation concerns, and then say, ‘Okay, we can change the project this way or that way.’ Unfortunately, that’s often not the way the federal government works,” said Coleman in an interview.

“What the court is asking for is something that governments typically aren’t very good at.”

Young points out that the court also disagreed with the government’s argument that it could not impose additional conditions on Kinder Morgan or modify any of the existing 157 conditions.

“The court quite properly said, ‘No, that’s wrong, you can move to a different position,’ That’s what makes consultation meaningful, being willing to make the problems less extreme or to accommodate them in some way,” she said. 

Prof. Nigel Bankes, University of Calgary.

“Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns,” wrote Justice Eleanor Dawson, who penned the unanimous decision. “The duty to consult was not adequately discharged.”

Who is responsible for the failure?

“All of the issues on the duty to consult, according to the court, are in mid to late-2016, when the Trudeau government was in place and they had the guidance from the Northern Gateway decision on what the minimum legal requirements are and they still didn’t manage to meet the legal requirements,” Prof. Dwight Newman of the University of Saskatchewan law school told Ian Burn of The Lawyer’s Daily on Thursday.

“Maybe [the government] can make the argument they didn’t know what was actually expected of them, but from a government that would purport to be going above and beyond [on Indigenous issues] it’s very surprising that they failed to meet the minimum legal requirements.”

Young agrees. She says the Trudeau Government has missed many opportunities to “walk the talk” when it comes to indigenous reconciliation.

“I’m not surprised that this consultation failed. It’s a large bureaucracy and there was a huge political imperative to get the project moving,” she said.

“And the response to the requirements of consulting with indigenous people is arduous and subtle. It needs to be much more in sync with the pace of that kind of consultative conversation that indigenous peoples need to have than what the federal bureaucrats want to have.”

Bankes assigns blame to both the government and the lack of clarity around duty to consult:

I’d say a bit of both. By necessity it’s a relatively complex exercise,” he said in an interview. 

“But the courts had given significant guidance in previous cases and I guess what the Federal Court of Appeal is saying here is, ‘You didn’t do what we told you to do, you were still too superficial.'” 

Coleman is the only expert not willing to pin blame on the Trudeau Government.

“It can happen to any government. My personal view is that it’s difficult to predict these things sometimes, so I personally wouldn’t be that harsh,” he said.

Coleman thinks Canada’s reputation has already suffered additional damage with domestic and international investors as a result of the court’s decision.

What is clear is that Ottawa has to remedy the deficiencies identified by the court, which Bankes thinks could take nine months to a year. And that assumes Ottawa gets it right the second time around.

If the bureaucrats conducting the consultations didn’t learn from the Federal Court of Appeal’s 2016 dismissal of the Northern Gateway pipeline project for inadequate consultation, who’s to say they’ll do better this time?

Justin Trudeau, that’s who. Saying repeatedly in public that Trans Mountain Expansion will be built is good, but not good enough. The Prime Minister must personally ensure this file is handled properly and is expedited as much as possible.