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.