Martha Hall Findlay is president and CEO of the Canada West Foundation and a former Liberal member of Parliament.
Despite some extreme reactions, at both the positive and negative ends of the spectrum, the Federal Court of Appeal has not stopped the Trans Mountain pipeline expansion (TMX) – far from it. Further delay is certainly problematic for the federal government and for oil producers. And a bit more delay may very well be worth it for the greater clarity this decision has provided for this – and all future – projects.
The Tsleil-Waututh Nation v. Canada (Attorney-General) decision provides a positive way forward both for the construction of the pipeline and the interests of Indigenous communities and those with legitimate environmental concerns. It has made it clear that although real concerns need to be addressed, neither the environmental nor Indigenous community concerns can be limitless. More importantly, the decision provides specific steps needed to address those concerns. For sure, there are some who are celebrating the "quashing" of the project, but the court took exception to only two specific problems and made it clear that the remedies are achievable, giving both the National Energy Board and the federal government an opportunity to address them. Indeed, the court went out of its way to spell out just how limited the required steps are. There will be some delay, but the court most certainly did not "stop" the project.
The court found that the NEB “unjustifiably excluded Project-related shipping from the Project’s definition.” Real concerns had been raised about the negative effects of shipping – all kinds of shipping – to the southern resident killer whale population. This, however, is a problem for all shipping in the area, not just the incremental shipping the TMX project would cause. Indeed, despite all the rhetoric about the resulting increase in tanker traffic, tankers are still far outnumbered by all other types of marine traffic. TMX-related shipping would amount to less than 4 per cent of all ocean-bound traffic in the Strait of Georgia. It would, therefore, be completely inappropriate for this one project to bear the onus for all shipping’s cumulative challenges to the whales and should not be stopped on these grounds. But the court said, appropriately, that the NEB should not have ignored this issue. Properly dealing with the threats to the whales is the responsibility of all shipping. Transport Canada, Fisheries and Oceans, the Environmental Assessment Agency and others should immediately work on rules and requirements for all shipping in the area to address this concern.
The duty to consult
The court has told the federal government, now for the second time, that it had not adequately fulfilled its duty to consult. It told Ottawa the same thing only two years ago in Gitxaala Nation v. Canada with respect to the Northern Gateway pipeline. Yet, this government, which has put so much emphasis on reconciliation and improving federal-Indigenous relations, simply walked away from that decision. In its rush to deny the Northern Gateway pipeline for political reasons, it insulted both the Indigenous communities that supported that project (of which there were many) as well as those that did not. Consultation cannot be dependent on whether someone is for or against – it should involve all perspectives. The decision adds to the jurisprudence from two recent Supreme Court of Canada cases, Clyde River (Hamlet) v. Petroleum Geo-Services Inc. (2017 SCC 40) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (2017 SCC 41), both of which set out increasingly clear requirements – the latter saying that the consultation had been sufficient and denied the Indigenous claim. The court has added even more clarity to specific steps to be taken. This time, the federal government must embrace it wholeheartedly, to prove that it truly wants reconciliation and strong federal-Indigenous relations. The added factor this time, of course, is that it wants this pipeline built.
Canadian law is now even clearer: The bar for duty to consult is high and it must be meaningful – but it does not give Indigenous communities a veto. This clarity is critically important for project proponents as well as for the government.
The court also, in several places, acknowledges the desire to avoid delay: “The concerns of the Indigenous applicants, communicated to Canada, are specific and focused. This means that the dialogue Canada must engage in can also be specific and focused. This may serve to make the corrected consultation process brief and efficient while ensuring it is meaningful. The end result may be a short delay, but, through possible accommodation the corrected consultation may further the objective of reconciliation with Indigenous peoples.”
Recommended next steps
The best course now is to move beyond the wringing of hands and partisan gnashing of teeth, heed the court’s direction and do what it clearly sets out.
An appeal would be wrong
The two issues the court raised are not only not unreasonable, they are limited and addressable, and it would delay the project far longer to appeal instead of simply doing what the court has called for.
It would be more constructive to embrace the decision as having helped clarify the way forward for all.
Also important is what the court did not say about the process. It reviewed the entire NEB process in detail and found only a very small, fixable part wanting. This means the NEB is not nearly as “flawed” as some would say. This supports our view that Canada does not need to replace the NEB with an entirely new energy regulator as provided for in Bill C-69. The federal government now has its own incentive to keep the NEB in place, because it needs the NEB to comply with the specific requirements as set out by the court as soon as possible. If Bill C-69 is passed, replacing the NEB will take a long time – and the pipeline would then be much more delayed. If C-69 proceeds, we recommend the Senate call for that part of C-69 to be removed in its entirety.
Confidence for proponents
Finally, from a project proponent’s perspective, the court’s commentary on both the NEB and duty to consult should give confidence, rather than cause the current hue and cry. Why? Because the goalposts are now much clearer. The likelihood of more court delays is diminished because the court was so specific with its judgment and its recommendations. Subsequent courts will be bound by this decision, and if the parameters set out here are met by the various stakeholders, projects will be able to proceed. For those worried about never-ending protests, environmental activist groups and Indigenous communities now have much less to complain about. Indeed, much of the commentary postdecision has been just that: “Finally, we’ve been heard!” But for them as well, the court has clarified the parameters of engagement in order to move projects forward. They cannot simply say "no" any more. Most investors in major infrastructure or related projects are not afraid of firm environmental regulations or of engaging in successful partnerships with Indigenous communities. What proponents need more than anything now is certainty and clarity as to what is expected – and that the courts will not allow endless protest. This decision goes a long way to accomplishing that certainty.