(Photo by Ken Balcomb, Center for Whale Research, pic from Washington Post)
This article is
Part 2 of a 2-part series which was originally published in The Lawyer's Daily
on September 17, 2018. The link to Part 1 which was published Sept.11, 2018 is
provided below.
Despite
objections from some of the Indigenous groups about the consultation process,
the Federal Court of Appeal (in Tsleil-Waututh
Nation et al. v. Canada (Attorney General) 2018 FCA 153) held that Canada
acted in good faith and that the consultation framework it used was
appropriate.
This
was a four-phase process which was to include (1) early engagement, (2) NEB
hearing, (3) governor-in-council consideration and (4) regulatory authorization
processes.
Where
Canada fell down was in Phase III of the consultation process in that it did
not meaningfully consider the concerns of the Indigenous groups or attempt to
accommodate or mitigate those concerns. There was no substantive discussion
about Indigenous rights and the FCA found that federal officials did little
more than act as “note-takers”. The court agreed with the Indigenous groups
that Canada’s notes, referred to as the Consultation Chronologies, “should be
approached with caution” for failing to accurately present the facts.
When
pressed by Indigenous groups for a response, federal officials merely repeated
the line that they would deliver their concerns to the decision makers. When it
finally did come time for a response, Canada informed the groups that it was
bound by the recommendations of the NEB and that it was in effect, powerless to
add any more conditions on the project. A surprising response given the fact
that the FCA had already decided in the Gitxaala Nation case (Gitxaala Nation v. Canada 2016 FCA 187)
that under the current legislative scheme, the only decision maker was in fact
the governor-in-council and not the NEB.
The
Department of Justice is the largest law firm in Canada, working exclusively on
behalf of the federal government — it had no excuse for its “erroneous
position.” The FCA held that the duty to consult is not met by the mere
exchange or discussing of information. Consultation has to focus on
constitutionally protected rights and in so doing Canada is obligated to
“substantially address the concerns of the First Nation” (from Mikisew Cree First Nation v. Canada
(Minister of Canadian Heritage) 2005 SCC 69. This coupled with the fact of
Canada’s late disclosures, lack of responses, failure to provide more time and
“closed-mindedness” frustrated the consultation process. It is Canada’s actions
or lack thereof which is why the Federal Court of Appeal overturned its
decision.
So,
what now? Well, this is far from over. The FCA has ordered that the decision is
quashed and the approval must go back to the governor-in-council for
reconsideration. As part of that reconsideration, the GIC must refer the NEB’s
recommendations back to the NEB. Canada must also redo its Phase III
consultations and accommodations before the GIC can reconsider the approval for
the pipeline expansion.
Of
great concern is Prime Minister Justin Trudeau’s comments that Canada is
considering the possibility of an appeal of this decision or legislation to
force the pipeline project through.
Whether
Canada chooses to abide by the decision or not, what we know for sure is that
Canada will forge ahead with the pipeline despite the fact that the impact of a
tanker spill on the southern resident killer whales would be “catastrophic” and
“there were no direct mitigation measures that Trans Mountain could apply to
reduce or eliminate potential adverse effects from Project-related tankers”.
Perhaps Tahlequah (the female southern resident killer whale who recently
carried her deceased calf for 17 days) was mourning for all us.
However,
there is a new complication to Canada’s pipeline plans. Six conservation
groups, including the Raincoast Conservation Foundation, Ecojustice, David
Suzuki Foundation, Georgia Strait Alliance, Natural Resources Defence Council
and the World Wildlife Fund have filed a lawsuit in Federal Court seeking an
emergency order to protect the southern resident killer whales.
Indigenous
peoples will also have to decide how to proceed to protect their lands, waters
and the other life within their territories which depends on a healthy
eco-system — including killer whales.
What
we know for sure is that we cannot count on either federal or provincial
governments to put the health of peoples, lands, waters, plants or animals
ahead of the money to be made from the extractive industry. As the FCA held,
the public interest and the duty to consult with Indigenous peoples are not in
conflict. To the contrary, the violation of the “constitutionally protected
rights of Indigenous peoples cannot serve the public interest”.
Looks
like it is up to Indigenous peoples and environmental allies to protect the
public interest and our collective futures — including Tahlequah’s and the
future of her pod.
This
article is Part 2 of a 2-part series that was originally published in The
Lawyer's Daily on September 17, 2018.
The
link to Part 1 which was published Sept.11, 2018 is at this link:
My
Youtube video on this issue provides more detailed information about the case.
