The fate of one of Justin Trudeau’s signature initiatives – the Trans Mountain pipeline expansion – will still be undecided when Canadians vote in October. The pipeline’s fate is once more before the Federal Court of Appeal, which will, once again, rule whether the government adequately consulted with Indigenous groups.
In the meantime, pipeline construction is resuming at the terminus in the Vancouver area and at its start near Edmonton. If work proceeds unhindered, the expanded pipeline could be in operation by mid-2022.
The Liberal cabinet first approved the project in 2016. A year ago, after Ottawa bought the pipeline, the Federal Court of Appeal threw up a roadblock. It ruled that some of the environmental review and Indigenous consultations had been inadequate and would have to be redone.
In response, the National Energy Board undertook an additional environmental assessment. And to meet the duty for Indigenous consultation, former Supreme Court justice Frank Iacobucci was named to head a team of 60 Crown consultants. In June, when Ottawa reapproved the pipeline, it cited 46 ministerial meetings with 65 Indigenous groups, noted the consideration of 129 Indigenous groups and said the work met the legal standard for meaningful dialogue.
Almost immediately, multiple litigants went to court, arguing Ottawa had failed to follow procedures designed to respect environmental law and Indigenous rights.
Last week, Federal Court of Appeal Justice David Stratas granted six First Nations groups leave to appeal the project’s approval, at the same time declining to give other groups leave to appeal on environmental grounds.
That means, although the Trans Mountain expansion is still nowhere near completion, it is closer than it was a week ago. The legal challenge to the environmental review is gone; an appeal arguing that the Indigenous consultation was inadequate remains.
As Justice Stratas helpfully reminds his readers, “the duty to consult does not require the consent or non-opposition of First Nations and Indigenous peoples before projects like this can proceed. Dissatisfaction, disappointment or disagreement with the outcome reached after consultation is not enough to trigger a breach of the duty. Under the duty to consult, First Nations and Indigenous peoples do not have a right to veto a project.”
He also points out that “an established body of law bars relitigation.” In other words, these appeals appear to be going forward on a narrow, procedural basis, turning on the question of whether the Indigenous-Crown consultations were legally adequate or whether more is required.
In its ruling, the court also broke with tradition and explained why it granted leave to appeal on Indigenous consultations. It did so because the Trudeau government took the unusual step of not opposing the leave applications and the court believed that, in the event the court decided against the applicants, they were entitled to know why.
Some observers see Ottawa’s choice not to oppose the leave applications as a dereliction of duty. And it does seem like Ottawa was effectively declining to defend its own pro-pipeline decision. It’s not a great look.
In January, in one of Jody Wilson-Raybould’s last moves as justice minister and attorney-general, she issued a directive on Canada’s civil litigation strategy involving Indigenous people. It codified the justice department’s de facto approach of the past two years. Ottawa will defend itself in the coming appeals, but it didn’t add an extra hurdle by trying to block the case from returning to Federal Court.
These less-aggressive tactics have been painted as not standing up for the oil industry or refusing to challenge Indigenous litigants. Maybe. But the hurdle to get leave to appeal isn’t all that high, and Justice Stratas’s decision would not likely have been different even if Ottawa had intervened.
Which leaves us where we are: Appeals are on and Ottawa’s lawyers can step up. Several Indigenous groups allege the do-over was hurried and Ottawa ignored important issues; the federal government will get the opportunity to demonstrate that was not the case.
A decision could come by year’s end. If Trans Mountain is delayed again, it will rank among the biggest failures of Mr. Trudeau’s term in office.
But that’s for the future. In October, voters will render their verdict on Mr. Trudeau before they find out whether Ottawa’s second swing at the pipeline is successful, or is heading into extra, extra innings.