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Carolyn Bennett vows government 'will do better' on duty to consult following Trans Mountain decision

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Trans Mountain decision means Canada needs a new process for consulting First Nations, minister says

Minister of Crown-Indigenous Relations Carolyn Bennett: "We'll have to go back and really work to define what meaningful consultation looks like to our partners." (Nic Meloney/CBC)

The Federal Court of Appeal's decision last month to quash the Trans Mountain pipeline extension came as a blow to the federal government — now the owners of the project — but the minister for Crown-Indigenous relations says the ruling made one thing clear.

"It means we will actually have to design a process [of consultation] that's better," Carolyn Bennett told Vassy Kapelos on CBC News Network's Power & Politics Tuesday.

The court concluded that Canada had a duty in law to consult each of the six First Nations that appealed the Trans Mountain expansion approval, but its efforts missed the mark.

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"Canada fell short of its obligations," the court said. "More was required of Canada."

Bennett conceded that point, but said that previous governments and the National Energy Board played a part in that failure.

"I think we knew that the NEB process before was treating First Nations like a bird-watching club," she said. "This was not taken as nation-to-nation."

She also wouldn't elaborate on what a "better" process would look like.

"What our government did was way better than what was done before, but clearly it wasn't good enough," she said. "We will do better."

Time to enshrine 'duty to consult' in law?

One way to make the government's duty to consult more clear in the future would be to enshrine that obligation in law, according to Tom Flanagan, a professor emeritus of political science at the University of Calgary.

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"I'm suggesting that Parliament — with the government taking the lead — could draft legislation to lay out how the federal government could approach consultation on future projects," he said in a separate interview with CBC News.

The federal and provincial "duty to consult" Indigenous peoples on projects like pipelines is embedded in Section 35 of the Constitution Act, and was codified in the 2004 Supreme Court decision Haida Nation v. British Columbia, but it is not actually entrenched in any federal legislation.

Coldwater Indian band Chief Lee Spahan, centre, raises an eagle feather before he and other First Nations leaders speak to a Federal Court of Appeal ruling quashing the approvals of the Kinder Morgan Trans Mountain Pipeline expansion. (Darryl Dyck/The Canadian Press)

Flanagan would like to see that changed, even if it wouldn't be in time to make a difference for the Trans Mountain project.

"Pipelines can't wait forever, and we've seen three major pipelines, two dead and the third now on life support," he said, referring to the Mackenzie Valley natural-gas pipeline in 2006 and the Northern Gateway oil pipeline in 2016.

"There's been all these questions about what proper consultation looks like, and all these details are being worked out piecemeal.

"You can make an argument this is a good way for due law to gradually grow, but at the same time the rest of us would like to get on with business and things grind to a halt while the courts are developing jurisprudence."

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Prime Minister Justin Trudeau has said his government will look at legislative and other options as it decides how to respond to the court decision on Trans Mountain.

But in her interview with Kapelos, Bennett wouldn't commit to the idea of enshrining the duty to consult in law. Instead, she committed to more consultation.

"We'll have to go back and really work to define what meaningful consultation looks like to our partners," she said.