Sometimes, particularly when it leaves one party dissatisfied, the law is an inelegant instrument.
For now, at least, last week’s go-ahead of the Trans Mountain pipeline project by the Federal Court of Appeal signals a clearer boundary on the “duty to consult” when federal projects intrude upon the vast land in which Indigenous title remains in dispute.
But there remain obvious objections in our midst that will not go away once the construction courses across Alberta to British Columbia and delivers oil to tidewater to presumed Asian markets.
True, the legal scholars suggest it is unlikely that the Supreme Court of Canada will overturn the Appeal Court’s work – firm work, too, in asserting the Justin Trudeau government did what the Stephen Harper government didn’t, in listening and seemingly opening itself to some accommodation of Indigenous communities, even if that didn’t particularly emerge.
True, too, that the four Indigenous parties arguing against the government-owned project in court found themselves critiqued for overreach in wanting a fuller do-over of the case than the court felt it was guided to conduct after its 2018 decision sent the consultation process back to the federal government to fix. Once the court clarified what the case was and wasn’t about, it was able to note that consultation might mean concession but very much might not.
And true, true, true, the likeliest next step for the pipeline project now that it can proceed is Indigenous ownership, even if a few Indigenous communities do not want any part of it. Trudeau’s tightrope has been to pursue what he calls his most important relationship in reconciliation while guiding all Canadians toward a meaningful sharing of power.
The court is somewhat putting a wrench into the works of Trudeau’s grand plan. It is calling the shots on the terms and conditions under which Indigenous communities need to be consulted, making clear that both parties must be good-faith negotiators and proclaiming that opposition cannot convert into a veto if projects have a deemed public interest.
The political challenge for Trudeau now is to dial back the expectations he has raised of nation-to-nation partnerships while effecting substantial progress in both the advancement of Indigenous economic interests and the protection of their land when they feel aggrieved.
The court has made clear that government has the upper hand, that its consultation and accommodation are about process but never about outcome. In other words, no veto or de facto veto for Indigenous opponents.
How all of this squares with the prime minister’s rhetoric is now harder to see.
The most curious part of the decision concerned Indigenous arguments that the government’s ownership of the Trans Mountain project constituted a bias that made impossible an impartial cabinet decision on whether to proceed.
It’s hard to believe that the Trudeau government would have under any circumstances declared the project a national interest, pledged it would be built, bought it for safekeeping, consulted at the court’s direction and concluded that, well, maybe the project wasn’t such a great idea. All the court could do, though, is act upon the evidence that the government improved the marine safety elements of the project and legitimately sought to understand the Indigenous concerns.
Still, there is the feeling that the days are not done in the courts to provide an even clearer picture of the four corners of rights. Even if in 1997 the Supreme Court’s Delgamuukw ruling made clear that “we are all here to stay,” meaning Indigenous and non-Indigenous people with an important role of mutual respect, we can expect future discussions to adopt a different context. The duty to consult has a couple of emerging companions: Free, Prior, Informed Consent (FPIC) and the overarching United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). These are no small matters of manoeuvring, and the British Columbian business community would be wise to comprehend their impact. Opposition to Trans Mountain may not be realized, but on other fronts in the future, these tools are not yet tested and the fights are not done by a longshot.•
Kirk LaPointe is the publisher and editor-in-chief of Business in Vancouver and the vice-president, editorial, of Glacier Media.