Canada is fortunate indeed to have a court system that produces rulings of the depth and quality of the Federal Court of Appeal’s judgment on the Trans Mountain Project. Covering 254 pages, it is clearly written, well informed, and thoughtful to the point of wisdom. In an era when democracy itself seems under siege it is reassuring to see a court standing firm and independent.

Any citizen who has engaged in consultations with public officials and been left feeling it was a waste of time could take consolation from this ruling. “Canada,” wrote the judges, “was required to engage in a considered, meaningful two-way dialogue” when consulting with Indigenous groups about the pipeline. Instead, federal officials provided “generic and vague” responses, “listening to and recording” concerns and then doing nothing with them.

"Notley and Kenney are each engaged in self-serving political theatre that changes none of the facts but sets a dangerous tone for Canadian politics." #ableg #cdnpoli #TransMountainPipeline #climate

You can almost hear the government officials saying “Please tell us your concerns, we’d like to file them.”

The court gives a damning number of examples where specific concerns raised by various First Nations were not addressed. For example, “There is nothing in Canada’s response to show that Squamish’s concern about diluted bitumen was given real consideration or weight, and nothing to show any consideration was given to any meaningful and tangible accommodation or mitigation measures.” Note the repeated and unequivocal use of the word “nothing.” Judges do not write such words lightly.

The court also ruled that the National Energy Board’s decision not to address the risks of the large increase in tanker traffic was a fatal flaw in their approval. The NEB and cabinet cannot sidestep the fact that marine transportation is clearly part of the Trans Mountain Pipeline project, said the court.

In important ways it is Stephen Harper’s revenge on Trudeau and Notley. The consultation and permitting began while Harper was prime minister. Under his leadership both the civil service and the NEB were transformed into organizations designed to serve the oil industry, even if that involved sacrificing due process. That sacrificing has come back in this ruling to sharply bite Trudeau and Notley.

With the permits quashed, construction on the pipeline is now suspended indefinitely, and the political repercussions are volcanic. The oil industry and its allies have maneuvered Canada’s political and regulatory system into a corner, and our political leaders have no one to blame but themselves. The Notley government did not have to stake its life on the success or failure of this pipeline. It has run a reasonably competent and scandal-free administration through a tough economic downturn that is now recovering. By putting the oil industry above all else their other successes are completely overshadowed.

Similarly, no one forced the Trudeau government to buy Trans Mountain — they allowed themselves to be steered into that position by the oil industry and its allies.

In Alberta, where politics are defined by and for the oil industry, the anger with the ruling was instantly set to rapid boil. Premier Rachel Notley reacted with an angry and at times distorted statement and immediately pulled Alberta out of the federal climate change plan. Her main rival in next spring’s Alberta election, Jason Kenney, is travelling the country with messages of discord and division, using the stalled pipeline to inflame resentment and grievance in both his Alberta and national bases. (Perhaps he has more ambitions than he is admitting.) Notley and Kenney are each engaged in self-serving political theatre that changes none of the facts but sets a dangerous tone for Canadian politics.

Justin Trudeau is also weakened by the court ruling, almost entirely with self-inflicted wounds. Like Notley, he has failed to keep the oil industry at arms length, and his government’s decision to buy Trans Mountain looks more reckless every week. Trudeau has proven unable to choose between the interests of the oil industry on one hand and those of global warming and Indigenous peoples on the other. Now the choice is being forced on him and it looks like he, too, will fall in line for the oil industry, pushing through the pipeline no matter what. If he does, he will forever lose credibility on addressing both climate change and Indigenous relations.

This ruling seems certain to be appealed to the Supreme Court, and however that turns out it will shape Canada’s future. The three immense issues at its core will transform Canada in the next few decades: environmental protection; the rights of Indigenous peoples; and the transition away from fossil fuels. Canadians need to remember that the requirement to deal with environmental protection and Indigenous issues will be with us for lifetimes to come, while the oil industry will be fading into history within a couple of decades, crushed by the growing crisis of global warming.

Kevin Taft was Leader of the Opposition in Alberta from 2003 to 2008, and is author of Oil’s Deep State, published by Lorimer in 2017.

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Comments

What a great article! There were so many great points, but I especially like the last paragraph. It kind of puts it into perspective in the context of future generations.

Thank you Mr. Taft. Your impactful article is one I will always keep on hand. It is sometimes necessary to remind folks just what the facts really are. Politicians count on the passage of time to cloud our vision.

In decades to come, the actions of the politicians captivated by the "easy" riches of resource extraction e.g. oil/gas will come to be as reviled as those who pursued the genocidal policies against Canada's indigenous populations. Both the oil/gas lobbies and the "anti-indian" activists were/are driven by economic greed. Pushing out the native population so that western Canada could be "settled", cultivated and turned to profit is not far removed from the relentless drive to destroy Canada's ecosystems by tearing up vast tracts of land for the dirtiest petro products available and deforesting the Boreal regions to produce pulpwood and pave the way for destructive/exploitative mining. Harpers vengeful legacy is nothing compared to the planet signaling its revenge.

We drove through southern Alberta, Saskatchewan and Manitoba on our way to Winnipeg this summer and something very sad struck me. Abandoned graveyards, farmyards and depopulated small towns all tell the same story. In slightly over a century, the land we 'settled' is being abandoned at an alarming rate, as industrial monoculture grows larger..........defying the climate catastrophe that is coming.

It may well be a desert in our children's lifetime....though in parts of Tommy Douglas' Saskatchewan, fracked gas is providing short term wealth..........and at the same time likely, the coup de grace to industrial farming.

And still...we persist in believing that bigger is better, more industrialized is more efficient, and gas guzzling big machinery will save us. The unpopulated countryside tells another story.

Large corporations, in this case oil and gas, have used their money and power around the world to capture all levels of government. The stacking of the NEB with oil and gas lobbyists is now finally recognized in this ruling and hopefully some changes will be made. But sadly the main stream media, also a corporate entity, ensures that people don't really understand what is going on.

Notley is hardly NDP, she is basically a conservative. She doesn’t appear to care for the environment and the real risk of oil spills in Vancouver’s harbour and BC’s oceans. What she believes in is money. What a good little capitalist. People have to remember capitalism is not democracy.
As for Trudeau, what is the matter with him. He doesn’t follow due process and he buys, with taxpayers’ money, a broken down pipeline that no one else wants. It must be nice to be rich. God save Canada!!

I think you need to look at Notley's total legislative record before calling her a conservative. She's an NDP...albeit one pushed to the right of centre by CAAP and Big Oil lobbies. The Cancer centre was promised in three consecutive elections by the Cons...they reneged at spending the money once elected. We will have a living wage minumum of 15.00 by October, and its popular enough that even Jason says he won't rescind it if elected next year (he could be lying). Labour rights have been modernized, the court system financed to crooks don't get off because the courts can't get to them...25 dollar daycare pilots extended to cover more families in need of child care.

There's lots about Rachel Notley that is socialist in spirit....and action. Big Oil has only captured our governments after capturing many of our citizens. Too many Canadians still believe our jawbs depend on trashing the ecosphere. We need to all become active, and convince our governments buying solar installations is better than buying defunct old pipelines.

Wise words indeed, but less than factual in the end: The Federal Court decision has nothing to say and imposes no restrictions about climate change. Nor did it have to deal with the issue of pipeline-or-not: Almost all the objections/comments of First Nations were specific (and these comments were not acted upon, no accommodation was attempted). If you don't want the pipeline built, this decision is not helping you.

The argument against the pipeline should be precisely where Mr. Taft took his comment at the end: Climate change. The government's justification in November 2016 for concluding that there would likely be no impact rests on a falsehood: That the pipeline is needed for current levels of production (it's safer than rail traffic, etc.)

In addition, all evidence suggests that Canada is not going to meet the Paris targets (nor is much of the rest of the world). Expanded bitumen production is not what we need.

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