Duty to consult First Nations was clear. How did the government miss the mark?

After the Federal Court of Appeal's decision to quash Ottawa's flawed approval process for the Trans Mountain pipeline expansion, fiery debates exploded like wildfires across the country.

The court found that the Trudeau government failed to adequately address increased tanker traffic and its associated risk to endangered killer whales, and failed to meet its constitutional duty to meaningfully consult First Nations affected by the proposed pipeline.

Supporters of the pipeline project criticized the Trudeau government’s failure to see major energy infrastructure projects through to completion. Critics of the Alberta-to-B.C. Trans Mountain project condemned what they saw as another weak attempt to meet the bare minimum requirements for engaging with First Nations, whose waters, lands and livelihoods are impacted by such projects.

While some called for the protection of sacred and valued ecosystems, governance systems and cultures, others called for the protection of workers in Alberta and Canada's economy. Some demanded growth in the oil industry, while others demanded clean energy initiatives and the recognition of Indigenous sovereignty over unceded territories.

A thick layer of confusion raised its lazy head, along with questions about how well Canadians and political leaders understand Indigenous rights as defined in Canada’s Constitution (not to mention within Indigenous legal orders) and how major industrial projects might proceed in the future.

How did a government so adamant that this pipeline proposal was a matter of "national interest" that it bought the project outright, fail to meet its constitutional obligations? How did a government, publicly so eager to reconcile with Indigenous nations and fix the flaws of past governments, fail to succeed where its predecessor did not?

National Observer spoke with an environmental assessment expert, three lawyers well-versed in the “duty to consult” and an Indigenous land defender to untangle the issues.

A Harper hangover

John Thompson isn't shy about his distaste for the Harper era of industrial oversight. That’s where he places the blame for Prime Minister Justin Trudeau’s present inability to see the pipeline project through to completion.

Thompson saw the Harper decade as a time when science was silenced by politicians who got too involved in championing private sector proposals for their own interests. Environmental assessments of large industrial projects should have been independent reviews led by unbiased technical experts, Thompson told National Observer in an interview.

Thompson has worked on environmental assessments of major projects in Canada for 40 years, seven of those with the Alberta Natural Resources Conservation Board.

During his time with the board, Thompson worked on two joint reviews with the Canadian Environmental Assessment Agency (CEAA).

He remembers politicians arguing over whether large projects should assessed based on technical grounds with political input, or political decisions with technical considerations. It was an absurd argument, Thompson said, as major industrial projects have a lasting impact on many parties and should be considered from an unbiased and objective point of view.

"Typically the people appointed to do these regulatory reviews don't care about the politics," he said. "It's when politicians start interfering that problems start happening."

As far as he’s concerned, Harper put his nose where it didn't belong when he started implementing significant changes to policy in 2012. His government cut funding for science-based research and Indigenous initiatives and muzzled scientists.

When it came to the Canadian Environmental Assessment Agency, the agency responsible for reporting to the federal minister of environment on the environmental risks of major energy projects, Harper allowed politicians to override decisions made by "a technical group making a technical decision," Thompson said.

He compared the Harper era to the Inquisition. “Instead of religion suppressing science, it was a time of politicians suppressing science,” he said.

Former prime minister Stephen Harper speaks to Conservative Party supporters in Vancouver on May 26, 2016. Photo by Elizabeth McSheffrey

Thompson was the socio-economic specialist for the Enbridge Northern Gateway pipeline project review board from 2005 to 2014, where he attended the process for six weeks in Prince George and Prince Rupert, B.C.. He thinks Enbridge was a more suitable proponent than Kinder Morgan, and was disappointed to see the pipeline rejected after a process that he believes involved intensive scientific examination and assessment.

But that process couldn't move forward without confronting ongoing treaty and rights negotiations with First Nations, he said. The overall approach at the time of the Northern Gateway, Thompson explained, was for the government to tell the corporation which First Nations they had to deal with and then leave it up to them to meet and consult with the identified communities. This was a mistake, he said, and he thought as much when he first heard the announcement during Northern Gateway negotiations.

He was concerned at the time because, unlike other provinces and territories, in British Columbia the majority of First Nations have not signed treaties with the Canadian government, obliging Ottawa to engage in nation-to-nation consultations on rights and title.

At the end of the process, the Harper government approved the Northern Gateway pipeline, but the Federal Court of Appeal later found the consultation inadequate, overturning Ottawa's approval.

In the subsequent election campaign, the Trudeau Liberals did not hide their opposition to the Northern Gateway pipeline and declared that the Trans Mountain process, which had already started, "needs to be redone." They promised to try and restore public trust in federal oversight of major industrial projects and relationships with Indigenous nations.

Once in power, the Trudeau government officially rejected the Northern Gateway project on Nov. 29, 2016, but announced plans to push ahead on the Trans Mountain expansion project. The Liberal government tabled new legislation, Bill C-69, to undo some of Harper's changes, but allowed the Trans Mountain review to proceed under the process laid out by the Harper government, with the addition of a special "ministerial panel" which conducted meetings during the summer of 2016.

Not only are politicians "confused" about their constitutionally-mandated obligations, Thompson said, but he also witnessed time-consuming confusion around what information is required from project proponents, such as the technicalities of economic benefit analyses.

"They need to be consistent. You can have two NEB (National Energy Board) panels reviewing the same type of projects — let's say the Northern Gateway and the Trans Mountain expansion, and they could come to completely different conclusions about appropriate methodologies and how things should be done,” Thompson said. “There's no consistency.”

If governments want to see pipelines successfully approved and built, they must be willing to deal with First Nations' individual land claims and understand the scope of their duty to consult, he added.

Trudeau ‘should have done better’

During the National Energy Board (NEB) hearings for the Trans Mountain pipeline expansion, University of Victoria law professor Chris Tollefson represented Nature Canada and BC Nature. Earlier, Tollefson had been counsel to BC Nature on the successful appeal of the Northern Gateway pipeline assessment to the Federal Court of Appeal.

Tollefson, executive director at the Pacific Centre for Environmental Law and Litigation, said he went into the Trans Mountain hearing process knowing the deck was stacked against them due to the changes made by the Harper government in 2012.

"We worked within the process as much as we could," Tollefson told National Observer. "There was no opportunity to cross examine and no sufficient opportunity for the evidence to be properly analyzed."

The federal government responded to National Observer through the office of the minister of finance, arguing that the government inherited a flawed environmental review process from the previous Conservative government and made efforts to improve it.

“We are now carefully reviewing the Court's decision to ensure that as we move forward, we meet the high standards that Canadians expect when it comes to both protecting the environment and meeting our obligations to consult with Indigenous peoples,” wrote press secretary Pierre-Olivier Herbert.

Tollefson disagreed.

"The Crown has no excuse for failing in its duty," he said. "(The Trans Mountain) decision is an application of fairly settled principles that the Supreme Court of Canada has enunciated over the last decade or two. This is a government that could have done better and should have done better."

Lawyer Chris Tollefson speaks to the flawed consultation processes with the failed Enbridge Northern Gateway and Trans Mountain expansion projects in a Sept. 5, 2018 interview with Emilee Gilpin

Tollefson’s statements contrast starkly with political rhetoric from politicians like Alberta Premier Rachel Notley, Opposition leader Jason Kenney and industry lobby groups who have strongly criticized the court ruling.

Canada's Energy Citizens, for example, a group created and managed by the Canadian Association of Petroleum Producers to drive public support for oilpatch-friendly policies in Canada, sent an email to its members​​​ declaring the court was "wrong" when it concluded the Trans Mountain expansion consultation was flawed. The Canadian Association of Petroleum Producers has not since clarified whether that statement represents its official position.

Kenney, leader of Alberta’s United Conservative Party, wrote in a public statement the day of the ruling, “Today is a sad day for Canada and our ability to move major projects in the national interest forward.”

Notley pulled Alberta out of Canada’s climate plan in response to the court ruling, calling the decision a “crisis” and “bad for working families” in a live Facebook video the night the ruling was published.

Consultation part of 'process of reconciliation’

The duty to consult is grounded in Section 35 of the Canadian Constitution Act, 1982, introduced by former prime minister Pierre Elliott Trudeau. Section 35 guarantees and affirms the rights of Indigenous peoples in Canadian law.

Over the course of the last 40 years, Canada has developed a consultation jurisprudence through a series of court cases that have explored what “duty to consult” means. In B.C., where there are few treaties and Indigenous title is often asserted in court, rulings have made it explicitly clear that governments cannot make decisions that impact constitutional rights without consulting those rights holders.

Eugene Kung, staff lawyer at West Coast Environmental Law, works with teams in charge of Indigenous governance over natural resources, land and water. He has been the organization's lead on the Trans Mountain file for the past five years and has worked closely with the Tsleil-Waututh Sacred Trust Initiative, a group founded to stop the pipeline expansion project.

In an interview with National Observer, Kung said the courts officially recognized that ‘Aboriginal’ title was never extinguished and continues to exist with the 1997 Delgamuukw case. The appellants at the time, Gitxsan or Wet’suwet’en hereditary chiefs, both individually and on behalf of their “houses,” claimed title to separate portions of 58,000 square kilometres of land in B.C..

Hunting and fishing rights were upheld in a string of other court cases, but the issue of Indigenous governance in regard to consultation was explicitly addressed in a forestry dispute by the Supreme Court of Canada in the 2004 Haida Nation case in British Columbia.

The judges in the Haida case affirmed that Canada had a constitutional duty to consult nations on decisions that affect them. They said there was a spectrum of solutions dependent on each individual nation’s circumstances and the specific impact of any given project.

The Haida Nation ruling, a victory for the B.C. coastal community, determined that consultation and accommodation are essential to the process of reconciliation. In the Trans Mountain ruling (Tsleil-Waututh v. Canada), where the courts ultimately quashed the Trudeau cabinet’s pipeline approval based on inadequate consultation and environmental assessment, Justice Eleanor Dawson cited the Haida Nation case 17 times.

Dawson noted that "the duties of consultation and, if required, accommodation form part of the process of reconciliation and fair dealing," as established in the Haida Nation case.

Kung said ‘Aboriginal title’ became even clearer with the 2014 Tsilhqot'in decision, in which the Supreme Court of Canada upheld the Tsilhqot'in Nation's title over its land, beyond reserve land, and declared that B.C. had breached its duty to consult in its land-use planning and forestry operations.

Lawyer Eugene Kung, seen here in Vancouver on Aug. 30, 2018, said the government admitted in court to studying relevant ‘duty to consult’ cases, and examining the law and that they should have understood their constitutional obligation. Photo by Michael Ruffolo

Federal consultation team acted as "note-takers"

Justice Dawson stated that Canadian courts have defined in clear terms that consultation has to be meaningful. She determined that the government fell far short of meaningful consultation and that "members of the Crown consultation team acted on the basis that, for the most part, their role was that of note-takers."

"The meeting notes show little or no meaningful responses from the Crown consultation team to the concerns of the Indigenous applicants," she wrote.

In a phone interview with National Observer, Kung said the federal government failed to uphold its obligations and understand that consultation isn't just a procedural check-box requirement.

“It’s a substantive requirement that requires meaningful engagement and dialogue,” Kung said.

Dawson also referenced the Clyde River (Hamlet) v. Petroleum Geo‑Services Inc. ruling to further define “substantive."

In the Clyde River case, the Crown failed in its duty to consult the Inuit of Clyde River who opposed seismic testing. In that case, meaningful consultation was defined as “talking together for mutual understanding.”

Consultation impossible without accommodation

Merle Alexander, a member and hereditary chief of Kitasoo/Xai’xais First Nation on the mid-coast of B.C. and an Indigenous resource lawyer with Miller Titerle and Company identified himself to National Observer as a “child of Aboriginal law.”

Alexander grew up during the 1970s as conflict increased between Indigenous communities and logging companies. He would go on to work on the landmark 1997 Delgamuukw case.

Alexander said authentic consultation isn't possible without accommodation. Accommodation agreements can involve economic compromises or rerouting impacts away from essential land and water sources. Fundamentally, it involves a reasonable investment of time, energy and resources into addressing concerns raised by affected First Nations.

"Having an open meaningful dialogue with a willingness to change is very skeletal," he said. "The only way you can actually achieve accommodation is if the parties involved are able to examine the project as equals, where they're provided with the substantial capacity to make an informed decision and where there's free, prior and informed consent."

Merle Alexander said the field of Indigenous law is a field of "interesting law" and that if you're bored, you're not doing something right. Photo provided by Alexander, with permission from the Canadian Bar Association's National Magazine

Alexander said the Crown needs to accept and treat First Nations as constitutional partners, and the Federal Court of Appeal found that certainly wasn't the case with the federal government's review of the Trans Mountain expansion project.

"The court was very careful not to create new law," he said. "They just took the core principles and applied them to very substantial facts.”

In her decision, Dawson clearly stated that when a proposed project may have impacts on a nation's rights or title, the Crown must examine the potential impacts, determine the strength of the claims and the seriousness of the impacts, and engage in a true two-way dialogue.

Alexander quoted lawyer Bill Gallagher’s book, Resource Rulers: Fortune and Folly on Canada's Road to Resources, which outlines why some projects succeed and others fail. Gallagher has identified more than 250 ‘duty to consult’ court victories by Indigenous groups to date. But the reality, Alexander said, is that there are many interactions between Indigenous peoples, industry and government, where success has been achieved and actual accommodation has occurred.

He pointed to the liquefied natural gas (LNG) pipeline consultation in British Columbia and its accommodation process, as an example of meaningful accommodation.

Lawyer Merle Alexander discusses the TransCanada LNG pipeline consultation and accommodation process with affected First Nations in a Sep. 5, 2018 interview with Emilee Gilpin.

International law requires consent

The word ‘consent,’ isn’t mentioned once in the Trans Mountain expansion ruling, because the courts "didn't want to go there," Alexander said. But international law, notably the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) demands that governments secure "free prior and informed consent" for projects.

Canadian law is already edging in that direction. In the 2014 Tsilhqot’in victory, Supreme Court Justice Beverley McLachlin wrote that the goal of consultation should be to obtain consent from the Nation affected. "Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group," she wrote. After all, if the government secures consent from an affected nation, consultation and accommodation will have been successfully achieved as well.

On May 10, 2016, Indigenous Affairs Minister Carolyn Bennett formally announced at the United Nations in New York that Canada would implement the UNDRIP. The announcement came almost 10 years after the declaration was adopted by the General Assembly in 2007. Canada had opposed the declaration for almost a decade.

“We intend to adopt and implement the declaration in accordance with the Canadian Constitution,” Bennett announced at the time, as part of a federal effort to restore relationships with Indigenous peoples across Canada.

A year later, Justice Minister Jody Wilson-Raybould announced the development of 10 principles meant to guide the government’s Indigenous law and policy review, based on the Canadian Constitution and UNDRIP.

The phrase ‘free, prior and informed’ consent appears six separate times in the UN declaration. Article 19, for example, states that governments “shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

Despite a continued commitment to achieving free, prior and informed consent with Indigenous peoples, the current government has yet to define how they will implement the international legal requirements into Canadian law.

To fill the void, Romeo Saganash, a Cree NDP MP introduced a private member’s bill which would require “the Government of Canada to take all measures necessary to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples”

Unusually for a private member’s bill, the Trudeau government allowed it to proceed. At the moment, Bill 262 has passed the House and is at second reading in the Senate. If passed, it will become binding law, requiring that Canada be compliant and consistent with the expectations set out in the international declaration.

When is consent freely given?

Alexander said there are still questions hanging over the term “free” in the phrase “free, prior and informed consent.” In his mind, the federal government’s rhetoric around "national interest" and "not all nations will agree" placed some First Nations under public duress about the proposed Trans Mountain expansion project. How can consent be free and voluntary if people asked to make decisions are under government pressure and economic duress?

In February 2018, Trudeau told National Observer in an exclusive interview that some nations agreed with the project and others didn't but that the pipeline project would go ahead. Alexander, who has worked closely with nations who did sign onto the Trans Mountain expansion project said many felt they had lost before the process had even started.

"They thought the Crown, the National Energy Board, the courts, that no one was going to stand up for their rights and they were going to get bulldozed like they always do," Alexander said.

"They thought they already lost, so if they could get anything out of it, it's better than seeing another project go through where they get nothing."

The federal government trumpeted the numbers of First Nations that did sign on to encourage others to follow suit, Alexander said. He thinks it was a tactic of public pressure against those who didn't agree to sign on.

Alexander said the First Nations that took the government to court were the ones who could afford to do so.

Eriel Tchekwie Deranger, a member of the Athabasca Chipewyan First Nation, located downstream from oilsands development projects, agrees that many Indigenous communities just don’t feel they have good options when it comes to mega-projects.

In a phone interview with National Observer, she said Indigenous communities with treaties often struggle to battle what she considers a flawed consultation process. Deranger said many cannot afford to take the proponent or government to court, which requires millions of dollars.

"In Alberta, we continue to see projects approved time and again, regardless of alarms raised by communities," Eriel Deranger told National Observer on Sep. 5, 2018. Photo by Rudi Tcruz

"The consultation process is nothing more than a watered down process of meetings, where corporations and the government try to find ways to convince and coerce to agree to projects."

It's not about making meaningful adjustments to proposed projects and looking at the value of the land, environment and cultures, she said, but about finding what grounds, usually financial, communities will accept.

"They put our communities in a corner, time and again, where they have to choose between jobs and a stable economy, or their rights," Deranger said. "They're economic hostage situations that communities have become accustomed to."

Deranger said constantly being put in that corner creates a distorted impression that Indigenous peoples are always "out to get money."

Getting serious about Reconciliation

Kung sat through the entire Federal Court of Appeal hearings on Trans Mountain and heard how the Crown studied consultation cases and clearly understood its constitutional obligation. But Canada's approach, he said over the phone, has always been to aim for the minimal requirements.

"If they're serious about reconciliation and not having their decisions constantly appealed in court, then they need to aim for something higher than the floor," he said.

Lawyer Eugene Kung speaks with National Observer in an interview on Sep. 5, 2018. Audio clip by Emilee Gilpin

Kung said if the consultation process for Trans Mountain starts over, the government should not make the same mistakes by engaging in a rushed process or it can expect to be taken back to court, wasting more valuable time and money.

"It's not just the six First Nations who brought the cases through the Federal Court of Appeal who now need to have their consultations redone, it's all 140 First Nations along the Trans Mountain expansion route that have that right," he said.

"Each Nation has that right and it's hard to imagine that happening quickly."

The Trudeau government is expected to announce its next steps on the Trans Mountain pipeline proposal before the end of September.