Engaging on Trans Mountain: What “Meaningful Consultation” Is and Is Not

Don Lenihan

Trans Mountain has failed the test of “meaningful consultation” with Indigenous peoples. Meaningful consultation involves dialogue and dialogue, as the court says, is a two-way street. The government seems to have missed this point altogether.

As someone with a long history in dialogue processes, I’d like to say a few things about what dialogue is and is not, starting with what it’s not.

After last week’s judgement, lots of Canadians are confused: if the First Nations at the table are firmly opposed to the pipeline, how can dialogue lead to anything but disagreement?

CBC journalist Terry Milewski goes even further. If consultation isn’t just listening – if the government must engage in dialogue to “accommodate” Indigenous concerns – aren’t we saying that First Nations have the power to say no to the pipeline, that is, that they have a veto?

First, the ruling explicitly states that meaningful consultation does not create a veto. This is simply a misunderstanding. But neither does it commit government to accept whatever views a community espouses. That too is a misunderstanding.

Dialogue is a rules-based process where the participants are expected to listen to one another, learn about each other’s concerns, discuss their similarities and differences, weigh evidence, and work together to strike a better balance between competing values and interests. We can call these “the rules of engagement.”

Reliable information is also critical so, to prepare the way, government usually carries out some preliminary research. In the Trans Mountain case, this included an environmental impact study and some legal analyses on which Indigenous communities’ rights might be affected by the pipeline and how. The results of these studies were then made available to affected communities and each one was invited to respond.

Now, any of these First Nations was and is free to call on the government to halt construction of the pipeline, but if it expects the government to act on this, it must provide evidence to justify the demand.

For example, a community might argue that heavy tanker traffic will harm the marine life in Burrard Inlet, which, in turn, will seriously impact its traditional lifestyle, including its cultural practices. This is a claim that deserves to be taken seriously under “the duty to consult,” and the government will be expected to respond.

For starters, it will review the environmental study to see how the tanker traffic will impact on marine life in the area. (In fact, the government failed to conduct such a study, which is a second reason the court quashed the results of the process.)

Let’s suppose it finds that there will be an impact. In that case, the dialogue moves to an assessment of how this environmental impact will, in turn, impact the rights in question, such as the community’s cultural practices.

This is where the real work of a dialogue gets done. The issues push discussion beyond scientific or legal analysis and into an examination of the community’s emotional, aesthetic, and spiritual life. Assessing the impact calls for new ways of gathering information, including listening to stories about the community’s lifestyle, examining its cultural practices, and investigating its oral traditions.

Engagement experts call this kind of evidence lived-experience and Community Dialogue is a – perhaps the – critical tool for gathering and interpreting it. Dialogue provides a forum in which the community can use this information to challenge the government’s plans and propose changes to it. Officials, in turn, are expected to respond and, where appropriate, to challenge the community’s views.

But let’s note two things: First, the dialogue should remain focused on how the project will impact specific Indigenous rights. Any claims or demands beyond this are not part of “the duty to consult” and should be treated no differently from those made by non-Indigenous Canadians.

Thus, while a community may be committed, say, to the reduction of greenhouse gas emissions, the government’s responsibility to accommodate that commitment applies only insofar as it can be shown to be necessary to address an impact on some Aboriginal right.

Second, even where such an impact can be established, government is free to propose alternate ways to address the concerns. Thus, if it can show that, say, more stringent safety standards will prevent tanker spills that may be enough to achieve a reasonable accommodation.

Dialogue thus is a two-way street that starts by listening, but progresses to reacting, questioning, learning, and adjusting. It is through this kind of give and take that reasonable accommodation is found.

In the end, government’s job is to strike a balance between the broader public interest, on one hand, and a community’s Indigenous rights, on the other.

When processes like these break down, it is usually because either the rules of engagement have not been rigorously applied or the dialogue has been allowed to wander beyond its scope.

However, when these conditions are met, dialogue processes are highly reliable and effective.