Court ruling exposes Ottawa’s failure to get Indigenous consultation right

In yet another example of the federal government’s failure to get Indigenous consultation right, the Federal Court of Appeal recently ruled that six of 12 legal challenges to the Trans Mountain pipeline expansion can proceed. The result? Canada’s energy sector will continue to face transportation constraints, our international business and investment reputation will continue to decline, and there’s no end in sight.

Some quick history. Last year the same Federal Court of Appeal quashed the original approval of the long-stalled Trans Mountain expansion (TMX), citing an insufficient environmental review and inadequate consultation with Indigenous communities.

Following that court decision, the Trudeau government (which in 2016 said it would seek “deeper consultations with Indigenous peoples”) appointed former Supreme Court justice Frank Iacobucci to oversee the consultation process to make sure the government got it “right.”

After announcing it had repaired the processes, the federal government approved the TMX expansion—for a second time—in June of this year. Despite all these efforts, the federal court disagreed and permitted six court cases against the TMX expansion to proceed.

In its decision, the Federal Court of Appeal said challenges could proceed on the issue of the adequacy of the consultation with Indigenous peoples. In a sign of the federal government’s incompetence on this issue, it chose not to provide evidence on how it carried out its legal duty to consult with Indigenous communities. Once again, the government’s approach to Indigenous consultation has failed.

Conducting meaningful consultations with Indigenous communities is important. However, the federal government’s approach is riddled with uncertainty and excessive unwarranted delays. There are other options, but it seems the federal government is unwilling to stray from its current approach.

Perhaps the best way to improve on the status quo is to clarify the meaning of “duty to consult,” which lies at the heart of many current impasses.

In the 2004 Haida Nation decision, the Supreme Court created the “duty to consult and accommodate” Indigenous groups on development projects (including pipelines) on their traditional territories. However, that right to be consulted was not clearly stated by the Court or subsequently through federal legislation. To-date, Parliament has passed no legislation to define what “duty to consult” actually means.

The confusion helps produce barriers and delays such as Wednesday’s Court decision. Meanwhile, the fate of Canada’s energy sector hangs in the balance as oil producers are unable to get their product to market and are losing billions as a result. In fact, insufficient pipeline capacity cost Canada’s energy sector $20.6 billion—or one per cent of the country’s economy—in foregone revenues last year. And the latest economic data show continued declines in business investment, highlighting the ongoing deterioration of Canada’s business and investment attractiveness.

And of course, legal challenges have contributed to Canada’s pipeline bottleneck. In light of the recent Court ruling, there’s more uncertainty ahead.

The federal government is still struggling to get Indigenous consultation “right.” To get it right and end the delays and losses, the government, in collaboration with Indigenous groups, must introduce and pass legislation clarifying what meaningful consultation actually means.