Canada’s Federal Court of Appeal has sided with the federal government against four Indigenous communities that sought to block the controversial Trans Mountain pipeline expansion.
In a decision published Tuesday morning, the Federal Court of Appeal found that the Indigenous communities failed to argue the federal government’s renewed consultation process was insufficient.
Several communities had applied for judicial review of the consultation process, but only six were allowed to proceed, and two later rescinded their applications. That left the Tsleil-Waututh of the North Shore, a Chilliwack-area group collectively referred to as Ts’elxwéyeqw, the Squamish Nation and the Coldwater Indian Band.
The case is the second attempt to block the pipeline following a successful bid to temporarily halt the project in an August 2018 Federal Court of Appeal decision that found the federal government inadequately consulted with First Nations along the pipeline’s route and failed to consider oil tanker impacts on local orca populations.
The court acknowledged that decisions affecting Indigenous Peoples have too often been made while excluding those very communities with damaging effects. With that in mind, the court said the duty to consult is an act of reconciliation, though it noted some limitations to that duty.
For instance, the court said the government does not need to abandon the project at the Indigenous communities’ request to achieve meaningful consultation.
“Moreover, the fact that consultation has not led the four applicants to agree that the project should go ahead does not mean that reconciliation has not been advanced,” the ruling reads.
“Reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists.”
The court further sought to drive home that it does not agree that Indigenous Peoples have a right to a “veto” over projects affecting their communities.
“The case law is clear that although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try to veto it,” the court wrote.
“Tactical behaviour aimed at ensuring that discussions fail within the time available for consultation is not consistent with reconciliation and would, if tolerated, allow for the effective use of a veto right.”
At the outset of the new decision, the court defined narrow parameters for the court case. For instance, not up for debate was whether the federal government was biased toward the project due to its ownership of the pipeline.
That said, the court did acknowledge the argument, finding there to be “no evidence that the Governor in Council’s decision was reached by reason of Canada’s ownership interest rather than the Governor in Council’s genuine belief that the project was in the public interest.”
For the most part, the court was set only on assessing the federal government’s renewal of phase three of its consultations. In the initial court ruling, that was where the court found the government had failed in its duties.
“The Governor in Council has demonstrated that it understood the legal content of the duty to consult,” the court wrote. “It has also shown that it understood the import of this court’s [initial] decision … and the shortcomings in its earlier consultation process.”
In a statement published to the federal government’s website, Natural Resources Minister Seamus O’Regan said the government “welcomes” the decision from the court.
“Today’s ruling affirms that the Government of Canada’s renewed consultations with Indigenous communities addressed the issues identified by the Federal Court of Appeal,” O’Regan is quoted as saying.
“From the beginning, the Government of Canada worked with communities to shape the consultation process.”
The Tsleil-Waututh Nation is expected to address the ruling at noon today.
