If the federal government wants the Trans Mountain project to see the light of day, after the Federal Court of Appeal halted the pipeline, it must rebuild bridges with the Indigenous nations most affected. It must give them a real say in a revamped and more comprehensive impact assessment process. This will be time consuming, but so will an appeal to the Supreme Court — a legal move that won’t necessarily end in the result it seeks. The government must therefore go back to the drawing board, but how exactly?

In her 260-page Federal Court of Appeal decision, released on August 30, Justice Eleanor R. Dawson provides ample evidence that federal authorities, despite multiple warnings, paid only lip service to Indigenous concerns over the possible impacts of the project. The court reminds us that Indigenous peoples have rights in Canada, and that these rights are protected by the Constitution. By failing to properly consult Indigenous communities affected by the project and make all efforts to accommodate their concerns, the federal government violated its constitutional duty and acted in a manner that is inconsistent with the principles that should guide reconciliation, including dialogue and mutual respect.

Following precedents set by the Supreme Court and its own precedent in the Gitxaala Nation decision concerning the now deceased Northern Gateway Pipeline, the federal appeal judges argue Canada cannot simply “listen” to Indigenous concerns. When a project is likely to have a significant impact on the proven or asserted rights of Indigenous peoples, the Crown must demonstrate its willingness to “engage, dialogue and grapple with the concerns expressed to it in good faith by the Indigenous groups impacted by the Project.”

More than “taking notes”

The court filings show the federal government was fully aware of the flaws in the National Energy Board’s environmental review process, most notably concerning the risks resulting from a significant increase in the number of large tankers carrying heavy bitumen in the densely populated and environmentally fragile Burrard Inlet. A number of Indigenous groups raised reasonable concerns to that effect, as well as about other aspects of the proposed pipeline expansion.

The court notes that on some issues, Indigenous groups even produced their own impact assessment and made specific recommendations for the regulatory authorities to accommodate their concerns. The evidence produced in court suggests they were largely ignored. Instead of engaging with Indigenous groups, federal officials simply promised to “bring their concerns” to the relevant authority. No real dialogue, no substantial discussion. During consultations, the federal representatives were just taking notes. Meaningful dialogue, the court argues, “required someone representing Canada empowered to do more than take notes — someone able to respond meaningfully to the applicants’ concerns at some point in time.”

Ultimately, Indigenous peoples are still considered stakeholders, whose rights and interests must be taken into consideration, along with other imperatives, rather than as partners in the decision-making process.

This last remark brings us to the crux of the problem. Despite its lofty commitment to reconciliation and its very public endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the federal government still operates as a benevolent sovereign in its relations with the original inhabitants of the land. Because it was told to do so by the courts, it now consults Indigenous peoples. But it does so without truly changing the way decisions are made. Ultimately, Indigenous peoples are still considered stakeholders, whose rights and interests must be taken into consideration, along with other imperatives, rather than as partners in the decision-making process. When they are consulted, the federal government simply “takes notes.”

The irony here is that while the federal government was defending the Trans Mountain review process in court, it was also simultaneously going through an overhaul of its own environmental assessment mechanisms in order to, among other objectives, make greater room for Indigenous peoples and their concerns in the decision-making process. Bill C-69, the new Impact Assessment Act, makes impacts on Indigenous rights one of the key criteria for authorizing a project. Indigenous groups should now be “substantially engaged” at every stage of the assessment process. The new Act has many flaws, but the federal government does acknowledge, in a piece of legislation, that the process under which the Trans Mountain pipeline was approved was deficient and should be enhanced.

What about consent?

What does it mean exactly to enhance Indigenous engagement? We know it means something more than consultation, but neither the Federal Court of Appeal nor the recent changes to federal impact assessment are particularly clear on the status and role that Indigenous peoples should have in the decision-making process. Canada has recently endorsed UNDRIP, which provides some basic guidance as to the principles that should guide Indigenous participation in decisions over the future of their traditional territories. It notably calls for free, prior and informed consent (FPIC) of Indigenous peoples, and not just consultation, when their land rights are affected by a major project.

Considerations of FPIC are absent in the Federal Court of Appeal’s recent decision. Perhaps even more preoccupying, FPIC is also largely ignored in the new Impact Assessment Act. This is in stark contradiction with the federal government’s most recent statement on the matter, including its support for Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples Act, sponsored by Cree MP Romeo Saganash of the NDP.

Free, prior and informed consent remains a controversial idea. Some fear it amounts to an Indigenous veto that would put an end to Canada’s resource economy. As I have argued, with my colleague Thierry Rodon, these fears are not warranted. Indigenous peoples have regularly demonstrated their willingness to accept natural resource development projects, as long as they have some degree of control on the planning and execution of each project, so that they can minimize its potential impacts on their lands and communities and maximize its economic outcome. The key, we argue, is to recognize Indigenous inherent authority in making decisions on such projects, especially when they directly affect their lands and communities.

This is the necessary next step with the Trans Mountain project. While some Indigenous groups and individuals who were part of the court challenge are adamantly opposed, others have expressed their willingness to accept the project, but only if their concerns are adequately addressed through a process acceptable to all parties involved. The problem, they told the court, is that they had no substantial voice in a process that was unilaterally established by the federal government.

There are a number of ways to recognize Indigenous jurisdiction in decision-making over pipelines. One is to support and respect Indigenous peoples own internal decision-making processes, which could include a distinctive impact assessment review informed by traditional knowledge, as well as a nation-based or community-based referendum. Another approach is to develop a more explicitly collaborative process, under which Indigenous peoples are fully involved, as decision-makers, in federal, provincial or territorial regulatory processes. This is what is often meant by nation-to-nation relations: two equal partners, making joint decisions. If one disagrees, then the project is rejected.

Indigenous peoples must be involved in defining how the decision will be made, based on what criteria and using what kind of knowledge, data and information, and so on.

For this approach to work, mutual trust and good faith are necessary, because both parties must commit to a process and to its outcome. The process itself cannot be unilaterally imposed either. Indigenous peoples must be involved in defining how the decision will be made, based on what criteria and using what kind of knowledge, data and information, and so on. Government agencies involved must also be transparent and accept the horizontal, rather than vertical, nature of the decision-making process. The new Impact Assessment Act provides for the negotiation of protocols with Indigenous governments and authorities on consultation procedures, but ultimate decision-making authority remains with the Crown. Other jurisdictions, including British Columbia and the Northwest Territories, are going further in creating collaborative decision-making models that are explicitly based on Indigenous consent.

If the interest of the federal government is to make decisions in the best interests of Canadians, then these decisions must be grounded in fair, legitimate and constitutionally acceptable processes. This is what the Federal Court of Appeal just told the federal government. Where the court fails is in acknowledging that this requires more than “enhanced consultation.” We need to acknowledge Indigenous peoples’ inherent jurisdiction on their lands and to establish — jointly — decision-making processes that reflect this principle. This is, in essence, what UNDRIP is about. And this is what Canada recognized when it endorsed UNDRIP. Maybe it’s time to take this commitment seriously.

Photo: Coldwater Indian band Chief Lee Spahan, centre, raises an eagle feather before he and other Indigenous leaders respond to a Federal Court of Appeal ruling on the Kinder Morgan Trans Mountain Pipeline expansion, during a news conference in Vancouver, on August 30, 2018. THE CANADIAN PRESS/Darryl Dyck

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Martin Papillon
Martin Papillon is a professor in political science at the Université de Montréal. His main research interests are federalism, citizenship and political membership in pluralist societies and the politics of Indigenous self-determination in Canada.

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