The Federal Court of Appeal (FCA) decision that quashed the federal approval of the Trans Mountain pipeline expansion and tanker project on August 30 was big news across the world, because the project has come to symbolize so many larger issues: from climate change to Indigenous rights and the nature of Canadian federalism.

The decision presents yet another opportunity for Canada to fundamentally change the way it approaches Aboriginal rights in decision-making. But it has to stop aiming for the lowest bar.

The court’s decision derailed Ottawa’s efforts to salvage the ailing project, after Kinder Morgan decided to abandon it. Then Finance Minister Bill Morneau agreed to pay $4.5 billion for the original 65-year-old pipeline, plus the right to build the expansion. That deal looks even worse now that the underlying approvals have been revoked.

In response to the FCA’s decision, Alberta Premier Rachel Notley announced a withdrawal from the federal climate change plan and demanded an immediate appeal of the decision to the Supreme Court of Canada. A chorus of unsolicited advisers called for emergency meetings, suggested using the notwithstanding clause (not applicable) or urged finding a legislative fix.

Others have called for the federal government to listen to the court and fix the errors identified, particularly the constitutionally required consultation with Indigenous peoples, which “fell well short of the mark set by the Supreme Court of Canada.” Many pipeline supporters highlighted the court’s observation that the six Indigenous applicants in the case had “specific and focused” concerns, leading to speculation that a corrected process could be “brief and efficient” and might result in a “short delay.”

The problem is that the search for a quick fix is exactly the kind of thinking that got Canada into this mess in the first place.

A history of colonial contempt

The botched consultation represents a larger systemic failure by Canada that dates back long before this Trudeau government. Canadian federal and provincial governments have long viewed Indigenous peoples with a sort of colonial contempt, treating engagement and rights as a threat and a burden rather than a constitutional and moral duty. More often than not, this resulted in governments seeking to do the least possible, and nothing more.

This approach relied on the hope that minimally consulted First Nations would not bring their grievances to court, and the cost of litigation probably did discourage many from suing. However, among the small fraction of cases that have made their way to the courts, the majority have been successful.

The resource lawyer Bill Gallagher has been tracking these cases and wrote recently, “Now at 250 legal wins, it’s the biggest win cycle in Canadian legal history. [Indigenous peoples are] redrawing the map of Canada one ruling at a time.”

In its handling of Trans Mountain, Canada argued repeatedly that it had studied Gitxaala Nation v. Canada (the Northern Gateway case) and applied the lessons from that case in its consultation. But while the FCA acknowledged improvements in the consultation process compared with Gitxaala, it still held that “Canada’s execution of Phase III of the consultation process was unacceptably flawed and fell short of the standard prescribed by the jurisprudence of the Supreme Court” (para. 557).

The judges identified three key areas where the government failed in its consultation. First, it primarily sent note-takers with no decision-making power to the consultation meetings, which meant there was no opportunity for government and First Nations to collaborate on solutions to the problems raised.

Second, the government incorrectly thought it could not depart from the National Energy Board’s findings and recommended conditions, which limited Ottawa’s ability to address concerns about Aboriginal rights and title.

Third, the government didn’t share important documents with First Nations in time to allow for meaningful responses before cabinet approved the project.

Many First Nations expressed the view that the government had already made up its mind about approving the project before consultation was complete. Indeed, we learned in April that Canadian government bureaucrats were instructed “to give cabinet a legally-sound basis to say ‘yes’” while the so-called consultations were ongoing.

So, in spite of clear attempts to follow directions of the courts, Canada still failed to meet the mark. This is entirely because it viewed the legal minimum, or the floor, as its goal.

It is important to recognize that the Federal Court of Appeal did not create any new law in this decision. The judges simply applied the law as set out by the Supreme Court of Canada and the FCA in cases such as Haida, Gitxaala, Chippewas of the Thames and Clyde River, among others. This was not an activist court moving the goalposts, as some have suggested.

What happens next?

The ball is in Canada’s court to set out its next move. It is possible that the government will appeal the decision to the Supreme Court of Canada, and it has 60 days to do so (from August 30).

If Canada does not appeal, it can make a fresh decision after correcting the errors identified by the court — first, the deficient environmental assessment, and second, the failed consultation with the 140 First Nations.

If the government restarts consultation, it will apply not only to the six Indigenous litigants who brought the case. That duty applies to each one of the 140 First Nations on or near the Trans Mountain pipeline and tanker route.

If Canada wants to do better this time around, officials may want to proactively address some of the concerns raised by the First Nations in the previous consultation. They should have good notes, at least.

Another way for the government to aim higher than the floor when making a fresh decision could be to re-examine the economic need for the project. The underlying energy economics have fundamentally changed since the project was first introduced in 2013. The price of oil plummeted in 2014, and while it has recovered somewhat, it will not likely get back to 2013 levels. In fact, the court specifically identified that the economic need for the project was questioned during consultation by both the Tsleil-Waututh Nation and the Upper Nicola Band, and Canada did not respond.

The government could also re-examine many other areas of stale (or nonexistent) evidence. Squamish Nation, for example, had a number of unanswered questions about the behaviour of diluted bitumen; Coldwater Indian Band was concerned about impacts on its aquifer; Sto:lo Nation about impacts on fishing rights and sacred sites; and Stk’emlupsemc Te Secwepemc Nation about impacts on sacred sites and governance rights, among many other things.

Renewed consultation should include revisiting the regulatory processes with new, fresh evidence on key outstanding questions. Conveniently, six of those questions were already identified by the federal government’s own Ministerial Panel, which was struck as part of the interim measures to restore the public’s faith in the regulatory process.

Unfortunately, these six questions were ignored and unanswered in the cabinet approval of the project. In making its fresh decision on Trans Mountain, be it through a regulatory process or through consultation, cabinet should consider these questions seriously.

1. Can construction of a new Trans Mountain pipeline be reconciled with Canada’s climate change commitments?
2. In the absence of a comprehensive national energy strategy, how can policy-makers effectively assess projects such as the Trans Mountain Pipeline?
3. How might Cabinet square approval of the Trans Mountain Pipeline with its commitment to reconciliation with First Nations and to the UNDRIP [United Nations Declaration on the Rights of Indigenous Peoples] principles of “free, prior, and informed consent?”
4. Given the changed economic and political circumstances, the perceived flaws in the NEB process, and also the criticism of the Ministerial Panel’s own review, how can Canada be confident in its assessment of the project’s economic rewards and risks?
5. If approved, what route would best serve aquifer, municipal, aquatic and marine safety?
6. How does federal policy define the terms “social licence” and “Canadian public interest” and their inter-relationships?

Respecting Indigenous law and decision-making

Aiming for higher than the minimum means that the starting point of consultation should be the recognition of the inherent rights, never extinguished by Canadian law, for Indigenous peoples to make decisions about what happens to their homelands and territories. It means implementing UNDRIP and respecting free, prior and informed consent.

This is consistent with the guidance of the Supreme Court of Canada, which spelled out very clearly how to ensure adequate consultation in the 2014 Tsilhqot’in decision:

Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group (para. 97).

Meaningful consultation also means including First Nations in the design of the consultation and review processes, something that First Nations governments have been telling Canada for years. Not only would this avoid or reduce future appeals, it would also result in better decisions.

Governments and businesses exceed legal minimums all the time. Canada now has a chance to fundamentally change the way it approaches its relationship with Indigenous peoples. Will our government continue the path of colonial contempt and try to rush through a quick fix, inviting further legal challenges? Or will it treat Indigenous peoples as genuine partners in the federation and in major projects?

Photo: William George, a member of the Tsleil-Waututh First Nation and a guardian at the watch house near Kinder Morgan’s Burnaby facility in Delta, B.C., on August 5, 2018. THE CANADIAN PRESS/Darryl Dyck

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