VANCOUVER – In a decision that came as no real surprise, the Federal Court of Appeal on Tuesday dismissed the latest attempt by four BC indigenous groups to quash the Government of Canada’s approval of the Trans Mountain Pipeline extension (TMX). This removes another barrier that had the potential to block completion of the 1,150-km, 890,000 bbl/d line between Edmonton and Burnaby..In a December hearing, the three justices heard lawyers from the four bands—the Tseil-Waututh, Squamish, Coldwater, and Stó:lÅ (the collective name for seven Fraser valley villages)—argue that the federal government’s consultation with the bands had been inadequate. Government lawyers argued rather more convincingly that the consultations – which included the direct involvement of then Natural Resources Minister Amarjeet Sohi – were as adequate as necessary..This was the second round of consultations, held at the behest of a previous (and more liberal) Federal Court of Appeal triumvirate, whose August 2018 decision quashed the government’s 2016 approval of the TMX on the grounds that the first round of consultations had not been “meaningful.” .The court ordered a second round, and following its conclusion in June 2019, the federal cabinet (Governor in Council) approved the project for a second time. But in September the order was challenged by six Indian groups (two later dropped out) and the December hearing date was set.. EDITORIAL: Canada’s leaders fail as blockades spread lawlessness .In their ruling on Tuesday, the three male septuagenarian judges, led by chief Justice Marc Noél, 71, concluded that “there is no basis for interfering with the Governor in Council’s second authorization of the project. The judicial review applications will be dismissed.”.In their lengthy list of reasons for the dismissal, the justices applauded the federal government’s thoroughness in consulting with the bands, deemed its measures to accommodate their concerns as adequate, and chided the bands for their delaying tactics and “posturing.”.“[G]iven the time available,” reads the decision, “it was incumbent on all parties to engage in the consultation process diligently and to work toward accommodations that were responsive to the flaws identified in TWN 2018. Unfortunately, this did not always take place: much time was taken up by unnecessary delay, posturing and insisting on matters of form rather than substance.”.All four bands claimed that Canada, as owner of the Trans Canada pipeline since July 2018, did not engage in the consultation process with “an open mind.”.The justices said that “based on the record before us, there is no evidence that the Governor General 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.”.The decision went on to address the complaints made by each of the four groups, which focused on an alleged lack of “meaningful” consultation by the government. .Here the judges expounded on the definition of “meaningful” and its relationship to reconciliation as envisaged by the Truth and Reconciliation Commission of Canada..Reconciliation, they wrote, “is meant to be transformative, to create conditions going forward that will prevent recurrence of harm and dysfunctionality but also to promote a constructive relationship, to create a new attitude where Indigenous peoples and all others work together to advance our joint welfare with mutual respect and understanding, always recognizing that while majorities will sometimes prevail and sometimes not, concerns must always be taken on board, considered, and rejected only after informed reflection and for good reason. .“This is a recognition that in the end, we all must live together and get along in a free and democratic society of mutual respect.”.In criticizing the consultation process, all four bands pointed to a lack of “accommodation” of their concerns, and in most cases satisfactory accommodation seemed to amount to killing the project..“The process of meaningful consultation can result in various forms of accommodation,” reads the decision. “But the failure to accommodate in any particular way, including by way of abandoning the project, does not necessarily mean that there has been no meaningful consultation… reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one.”.Citing case law, the court said it was 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. 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 [an] effective veto right.”.The justices cited a number of instances of such delaying tactics by the four groups. .Take for example the Squamish and Tseil-Watauth bands, the two coastal bands that, partially backed by US environmental groups, have long publicly demonstrated for the killing of TMX..Their salient concerns are the risk of a bitumen spill from the seven tankers a week that will ply Burrard Inlet and the debilitating effect an extra tanker a day might have on the killer whales in the Strait of Georgia (through which about 100 ships a day already pass)..In its 2018 ruling, the Federal Court of Appeal had called the government’s consultation with the bands on these matters inadequate. The bands say that the subsequent consultations—which took the form of a reconsideration hearing by the National Energy Board—were also inadequate..This hearing and subsequent technical consultations saw the government’s experts pitted against the Indians’ experts on matters such as the rapidity of diluted bitumen dispersion in Burrard Inlet and the effect of tanker noise on orcas. The government agreed to various mitigation measures, including funding for training indigenous groups in spill response and to develop technology for quieter vessels..The Squamish called the measures inadequate and also claimed the government withheld pertinent information from it. The judges disagreed and also accused the Squamish and Tseil-Waututh of postponing meetings and otherwise confounding the consultation process. .“While hard bargaining on the part of Indigenous groups is permissible,” write the judges, “Tsleil-Waututh’s conduct during the re-initiated consultation process exceeded hard bargaining and interfered with Canada’s efforts to consult and accommodate. Canada’s efforts nonetheless resulted in adequate consultation and responsive accommodation measures.”. Trudeau on WE scandal: Case closed .While the Court of Appeal decision removes another hurdle facing the TMX—which is already under construction in Alberta—another potential court challenge looms..The Tseil-Waututh and Squamish applied to the Supreme Court of Canada to appeal the limitation imposed by a judge on their hearing in the Court of Appeal. They had wanted to argue that the National Energy Board’s environmental assessment process (re: whales and tankers) had been flawed, but the Appeal Court judge ruled that that issued had already been dealt with in court. We suspect the Supreme Court will refuse to hear the appeal and that the only remaining recourse for the anti-pipeline collective will be civil disobedience.
VANCOUVER – In a decision that came as no real surprise, the Federal Court of Appeal on Tuesday dismissed the latest attempt by four BC indigenous groups to quash the Government of Canada’s approval of the Trans Mountain Pipeline extension (TMX). This removes another barrier that had the potential to block completion of the 1,150-km, 890,000 bbl/d line between Edmonton and Burnaby..In a December hearing, the three justices heard lawyers from the four bands—the Tseil-Waututh, Squamish, Coldwater, and Stó:lÅ (the collective name for seven Fraser valley villages)—argue that the federal government’s consultation with the bands had been inadequate. Government lawyers argued rather more convincingly that the consultations – which included the direct involvement of then Natural Resources Minister Amarjeet Sohi – were as adequate as necessary..This was the second round of consultations, held at the behest of a previous (and more liberal) Federal Court of Appeal triumvirate, whose August 2018 decision quashed the government’s 2016 approval of the TMX on the grounds that the first round of consultations had not been “meaningful.” .The court ordered a second round, and following its conclusion in June 2019, the federal cabinet (Governor in Council) approved the project for a second time. But in September the order was challenged by six Indian groups (two later dropped out) and the December hearing date was set.. EDITORIAL: Canada’s leaders fail as blockades spread lawlessness .In their ruling on Tuesday, the three male septuagenarian judges, led by chief Justice Marc Noél, 71, concluded that “there is no basis for interfering with the Governor in Council’s second authorization of the project. The judicial review applications will be dismissed.”.In their lengthy list of reasons for the dismissal, the justices applauded the federal government’s thoroughness in consulting with the bands, deemed its measures to accommodate their concerns as adequate, and chided the bands for their delaying tactics and “posturing.”.“[G]iven the time available,” reads the decision, “it was incumbent on all parties to engage in the consultation process diligently and to work toward accommodations that were responsive to the flaws identified in TWN 2018. Unfortunately, this did not always take place: much time was taken up by unnecessary delay, posturing and insisting on matters of form rather than substance.”.All four bands claimed that Canada, as owner of the Trans Canada pipeline since July 2018, did not engage in the consultation process with “an open mind.”.The justices said that “based on the record before us, there is no evidence that the Governor General 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.”.The decision went on to address the complaints made by each of the four groups, which focused on an alleged lack of “meaningful” consultation by the government. .Here the judges expounded on the definition of “meaningful” and its relationship to reconciliation as envisaged by the Truth and Reconciliation Commission of Canada..Reconciliation, they wrote, “is meant to be transformative, to create conditions going forward that will prevent recurrence of harm and dysfunctionality but also to promote a constructive relationship, to create a new attitude where Indigenous peoples and all others work together to advance our joint welfare with mutual respect and understanding, always recognizing that while majorities will sometimes prevail and sometimes not, concerns must always be taken on board, considered, and rejected only after informed reflection and for good reason. .“This is a recognition that in the end, we all must live together and get along in a free and democratic society of mutual respect.”.In criticizing the consultation process, all four bands pointed to a lack of “accommodation” of their concerns, and in most cases satisfactory accommodation seemed to amount to killing the project..“The process of meaningful consultation can result in various forms of accommodation,” reads the decision. “But the failure to accommodate in any particular way, including by way of abandoning the project, does not necessarily mean that there has been no meaningful consultation… reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one.”.Citing case law, the court said it was 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. 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 [an] effective veto right.”.The justices cited a number of instances of such delaying tactics by the four groups. .Take for example the Squamish and Tseil-Watauth bands, the two coastal bands that, partially backed by US environmental groups, have long publicly demonstrated for the killing of TMX..Their salient concerns are the risk of a bitumen spill from the seven tankers a week that will ply Burrard Inlet and the debilitating effect an extra tanker a day might have on the killer whales in the Strait of Georgia (through which about 100 ships a day already pass)..In its 2018 ruling, the Federal Court of Appeal had called the government’s consultation with the bands on these matters inadequate. The bands say that the subsequent consultations—which took the form of a reconsideration hearing by the National Energy Board—were also inadequate..This hearing and subsequent technical consultations saw the government’s experts pitted against the Indians’ experts on matters such as the rapidity of diluted bitumen dispersion in Burrard Inlet and the effect of tanker noise on orcas. The government agreed to various mitigation measures, including funding for training indigenous groups in spill response and to develop technology for quieter vessels..The Squamish called the measures inadequate and also claimed the government withheld pertinent information from it. The judges disagreed and also accused the Squamish and Tseil-Waututh of postponing meetings and otherwise confounding the consultation process. .“While hard bargaining on the part of Indigenous groups is permissible,” write the judges, “Tsleil-Waututh’s conduct during the re-initiated consultation process exceeded hard bargaining and interfered with Canada’s efforts to consult and accommodate. Canada’s efforts nonetheless resulted in adequate consultation and responsive accommodation measures.”. Trudeau on WE scandal: Case closed .While the Court of Appeal decision removes another hurdle facing the TMX—which is already under construction in Alberta—another potential court challenge looms..The Tseil-Waututh and Squamish applied to the Supreme Court of Canada to appeal the limitation imposed by a judge on their hearing in the Court of Appeal. They had wanted to argue that the National Energy Board’s environmental assessment process (re: whales and tankers) had been flawed, but the Appeal Court judge ruled that that issued had already been dealt with in court. We suspect the Supreme Court will refuse to hear the appeal and that the only remaining recourse for the anti-pipeline collective will be civil disobedience.