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Steel pipe to be used in the oil pipeline construction of the Canadian government’s Trans Mountain Expansion Project lies at a stockpile site in Kamloops, British Columbia, Canada June 18, 2019.

Dennis Owen/Reuters

The relationship between Indigenous peoples and other Canadians is frequently put to the test by proposed development projects. One such test involves the Trans Mountain pipeline expansion, owned by the Canadian government, which would stretch 1,141 kilometres from Alberta’s oil sands to the B.C. coast, where oil products could be loaded on to tankers bound for Asian markets. On Tuesday, the Federal Court of Appeal gave the pipeline the go-ahead, just 17 months after rejecting it, now saying the government has upheld its “duty to consult.” Sean Fine explains the legal underpinnings of the ruling.

Federal Court of Appeal clears a hurdle for the Trans Mountain pipeline

Why is the duty to consult with Indigenous groups so important to this ruling?

In 1997, the Supreme Court said in a case called Delgamuukw, “we are all here to stay” – Indigenous and non-Indigenous Canadians. The framework the court ultimately worked out for living together and reconciling competing interests is known as the “duty to consult," to which it added: “And if appropriate, accommodate.” Listening may require action. The court said the “honour of the Crown” and a true reconciliation between peoples depend on a process of negotiation. The duty applies to lands where Indigenous claims to title are still in dispute, and are a way for Indigenous groups to preserve their rights while those disputes play out, Osgoode law professor emeritus Kent McNeil says.

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Why did the Federal Court of Appeal reject the project in 2018?

Partly because, at a late stage of the consultation process, the federal government sent mere “note takers” empowered to listen but not propose accommodations, the court said. Indigenous communities fighting the pipeline had a list of specific concerns (such as those relating to the pipeline’s effect on drinking water and fishing rights), but the government gave only vague, general responses, the court said.

Why did it approve the project this time?

The court said the Canadian government worked hard to address the specific concerns of the communities opposed to the pipeline. Not much more needed to be done, it said in the current ruling.

Didn’t the government spend billions of dollars to buy the pipeline? Was cabinet ever prepared to reject the pipeline if the consultation showed there were concerns that could not be met?

Indigenous groups raised this issue of bias. The court’s response: “There is no evidence that the [cabinet’s] decision was reached by reason of Canada’s ownership interest rather than [cabinet’s] genuine belief that the project was in the public interest.” That statement may seem hard to square with the government’s ownership of the pipeline. “For a layperson, it certainly is difficult to wrap your head around that,” says Thomas Slade, a lawyer specializing in appeals to the Supreme Court of Canada. “At the end of the day all they can do is look at the evidence before them.”

The court was highly critical of how the Indigenous groups argued the case this time. Why?

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The answer lies in the court’s perception of its role in reviewing government decisions. Cabinet had considered the government’s attempt at consultation and decided it was sufficient. The court said its job was not to form its own view on whether the consultation should have been longer or better, but simply to say whether the decision and cabinet’s explanation for it were reasonable. To the court, the Indigenous groups treated the case as if it were being argued from scratch, going well beyond the court’s concerns as set out in the 2018 ruling. “You can sense a bit of frustration on the part of the court,” Mr. Slade said. “The court is saying, some of you don’t seem to have read the guidebook we gave you the first time around.”

Does the ruling break new ground on the duty to consult?

Not really, but it’s still an important moment in Canadian law because it applies a broad framework developed by the Supreme Court in a series of rulings beginning in 2004 to the concrete circumstances of a specific dispute. Even before the ruling, some Indigenous members of the legal community felt the duty to consult had become a sham. “Consultation is like a speed bump on the road,” lawyer Jean Teillet, who is Métis, and was involved at an earlier stage of the pipeline case, said in an interview. “You just slow down and follow the signs.” But University of Ottawa law professor and counsel Joseph Magnet, who has represented First Nations and Métis groups, disagreed. “It’s not an easy road." He said just four of 129 Indigenous groups consulted ultimately objected, and the court had treated them respectfully. He added that there was a subtext to the ruling that the Indigenous groups had not engaged in the consultations in good faith, and were simply opposed to the project.

What message does the ruling send about the future of development projects contested by Indigenous groups?

First, that Indigenous groups have no veto. And second, that courts should defer to governments that make the initial decision on whether the duty to consult has been met. “The deferential standard creates an uphill battle once you get into the courts,” Mr. Slade said.

Is a Supreme Court appeal inevitable?

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It’s far from certain the country’s top court would hear an appeal. The parties have 60 days to file for leave to appeal. The court would consider the case’s importance to the public interest, Mr. Slade said, but because the Federal Court of Appeal’s decision was so fact-based, there might not be much legal uncertainty for the Supreme Court to try to clear up. “It might be a bit of a toss-up in terms of whether it gets leave or not.”

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