As a federal court quashes the controversial project, lawyers and Indigenous leaders agree it’s more clear than ever that Canada must modernize its view of Aboriginal rights

As Grand Chief Stewart Phillip prepared for the Federal Court of Appeal decision on the Trans Mountain pipeline expansion Thursday morning his expectations were low.

Like many others, he had watched the National Energy Board’s consultations on the controversial pipeline expansion and firmly believed First Nations’ misgivings were not being genuinely considered and government’s push for the pipeline would trump concerns about the environment, climate change and Aboriginal rights.

“It was pretty much a dog’s breakfast from the get-go,” Phillip told The Narwhal.

Even after the federal Liberal government put a band-aid on the defective process by adding a new layer of scrutiny, Phillip had little confidence the court would rule in favour of the Tsleil-Waututh Nation, which argued that the National Energy Board’s process and findings were so flawed that the government could not reasonably rely on its report and that Canada had failed in its duty to consult Indigenous communities.

“I had prepared myself for a decision that would not come down in our favour and so, when I heard it, I was kind of shocked. The language was pretty powerful and made you realize the magnitude of this decision,” Phillip said, describing waves of energy and elation rippling through Indigenous communities.

In a landmark decision that brings the pipeline plan to a screeching halt, Federal Appeals Court judge Eleanor Dawson ruled Canada failed to meaningfully consult First Nations, falling well short of of the mark set by the Supreme Court of Canada, and that the National Energy Board’s report was flawed because it did not consider the issue of increased tanker traffic — even though the board is obligated to consider environmental effects — leading to a deficient report.

The strongly worded ruling says: “Canada failed in Phase Three (the final stage) to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”

Tsleil-Waututh Chief Maureen Thomas said it was clear from the start that Indigenous concerns about the pipeline expansion were not being considered.

“We went into consultations with the federal government with open hearts and minds, but, sadly, the process could best be described as window-dressing. We had a strong sense that the decision had already been made before we even sat down,” she said.

Bigger leap on Indigenous rights needed

The verdict is one in a long line of recent court decisions that carve out new legal space around Indigenous title and rights, including the quashing of Enbridge’s Northern Gateway pipeline proposal and, although not precedent-setting, reinforces a trend in the case law.

Governments and industry should now change their ways of doing business instead of coming up with another bogus consultation process and, despite the federal government’s insistence that the Trans Mountain project will go forward, it is time to bury it, Phillip said.

“Smothered by choking wildfire smoke this summer, we’ve experienced a taste of what climate change is bringing. This environmentally destructive project should never have been approved and the Trudeau government must stop construction immediately,” he said.

Union of B.C. Indian Chiefs vice-president Chief Bob Chamberlin is encouraged that the court has recognized the need for Canada to uphold Indigenous title and rights on projects on their territories, but says a bigger leap is now needed.

“First Nations face consultation processes endlessly and I have yet to see one where meaningful accommodation of Aboriginal rights occurs. It’s quite the opposite,” he said.

The way forward is for governments to fulfill promises for full implementation of the UN Declaration on the Rights of Indigenous Peoples and recommendations from the Truth and Reconciliation Commission, Chamberlin said.

“If you want to make things better you can’t do what has always been done, you have to come up with something different,” he said.

“Consultation and accommodation is yesterday’s law and so today and tomorrow it’s about implementing UNDRIP, which means consent,” he said.

That means coming up with a new process that sets out shared decision-making instead of relying on a process that allows government to run roughshod over Aboriginal rights, he said.

Ruling could affect Site C dam case

In the meantime, the decision is likely to affect other projects before the courts, including the Site C dam which is being challenged by West Moberly First Nations in B.C. Supreme Court, Chamberlin said.

Indigenous law expert Jack Woodward agrees the decision, which he described as “courageous,” will enhance other cases as it emphasizes that the existing law on Aboriginal rights must be applied.

“Absolutely it could have a bearing on the Site C case. Although that hearing is going to a different court, they will respect each others’ decisions and apply those precedents appropriately. It strengthens the hand of the Aboriginal parties,” Woodward, author of Section 35, which enshrined Aboriginal rights in the Canadian constitution, said.

Federal Finance Minister Bill Morneau has not yet said whether the case will be appealed to the Supreme Court of Canada, but is emphasizing the pipeline will be built with appropriate environmental standards and engagement with Indigenous people.

However, Woodward is unsure how that is possible.

First the government will have to work out how to get around the Species At Risk Act and accommodate the increase in tankers, from five to 34 a month, without killing off the Southern Resident Killer Whale population, he said.

Then there is the thorny question of how to properly conduct consultations when Canada has purchased the pipeline with the assumption it will go ahead.

“How can Canada go back to the First Nations and listen and accommodate properly? The government has made its case so much more difficult now because the question of good faith consultation is now front and centre because the government has said we don’t care what this decision says, it is going ahead,” Woodward said.

Any future consultations will be under a microscope and it will be difficult to claim good faith or a neutral stance when the government has prejudged the issue, he said.

“I wouldn’t bet money on this project ever going ahead,” Woodward said.

“They have tied one hand behind their back and I don’t know how they can get around this.”

Chris Tollefson, University of Victoria law professor and executive director of the Pacific Centre for Environmental Law and Litigation, said the decision changes the landscape and underlined profound deficiencies in the process that will take a long time to address if the project is to go ahead.

“The government has been put on notice that shortcuts and artificial deadlines in the consultation process will not be tolerated by the courts,” he said.

Government ownership of the pipeline is a wild card and, if the case if appealed, government has some difficult decisions as it would be spending taxpayers’ money in a way that could impair Aboriginal rights and title, Tollefson said.

Government will also have to get its head around the fact that consultation requires meaningful dialogue around key points of concern, with government representatives looking for solutions rather than acting as note-takers, Tollefson said.

“The government got elected on a platform where they admitted the process was flawed and they wanted to fix it and yet when First Nations raised those concerns in the consultation process there was never any attempt to address them. It was simply noted and then referred to cabinet,” he said.

Photo: Adam Scotti / Prime Minister's Photo Gallery