The Northern Gateway pipeline has been declared dead and buried so many times, it would be redundant to suggest this week's ruling by the Federal Court of Appeal drove a final stake through the heart of this troubled project.
But it does seem that if the proposed undertaking was still twitching at all – thanks in part to a recent change of view toward the project by Alberta Premier Rachel Notley and a reluctance by Prime Minister Justin Trudeau to bury it once and for all – then the court certainly delivered Gateway a seemingly life-defying setback by quashing the go-ahead it received two years ago by the federal cabinet.
If Mr. Trudeau was looking for a way to kill this project without looking anti-resource development and hurting his government's reputation in Alberta, the court just gift-wrapped the perfect out. So thorough and damning was its denunciation of the previous Conservative government's consultations with First Nations, it is inconceivable the Liberals would co-operate with an appeal of the decision.
If nothing else, the ruling serves as a cold reminder that the court-ordered duty to consult that governments have with aboriginal groups in this country means just that. The degree to which the Conservatives ignored that onus, or attempted to have project proponent Enbridge fulfill it on their behalf, is appalling.
In its ruling, the court paints a disturbing picture of a government attempting to escape its obligations and bamboozle First Nations with bureaucratic flim-flam instead. Even the government's representatives in talks with aboriginal groups were aware that their consultations fell short of what was acceptable, but time, apparently, was of the essence.
It would have taken a few extra months to address the primary concerns raised by aboriginal leaders, but that was a few months too many for the Conservatives, who seemed to view the consultation phase of the pipeline approval process as nothing more than a nuisance.
"Missing was a real and sustained effort to pursue meaningful two-way dialogue," the appeal court judges wrote. "Missing was someone from Canada's side empowered to do more than take notes, someone able to respond meaningfully at some point."
At one meeting with Crown representatives, the Haisla asked for a list of the infringements on their aboriginal rights and title that flowed from the project. The representatives promised to get back to them on that. When they did, a month later, they informed the Haisla that such a list of infringements did exist but the government said it could not be handed over. It seems someone forgot to tell the Conservatives that in fact it had a legal obligation to do just that.
"Canada's failure to be candid on this point … was legally unacceptable. Canada's failure frustrated the sort of genuine dialogue the duty to consult is meant to foster," the judgment read. On this same point, the court later said: "The inadequacies – more than just a handful and more than mere imperfections – left entire subjects of central interest to the affected First Nations, sometimes subjects affecting their subsistence and well-being, entirely ignored. Many impacts of the project – some identified in the report of the Joint Review Panel, some not – were left undisclosed, undiscussed and unconsidered. It would have taken Canada little time and little organizational effort to engage in meaningful dialogue on these and other subjects of prime importance to aboriginal peoples. But this did not happen."
What an indictment.
You can now add this ruling to the assemblage of court decisions that have come to define aboriginal rights and title in this country, filling a policy void left by unimaginative and unwilling federal governments. It would seem to justify the extraordinary lengths Mr. Trudeau is going to establish a new relationship with First Nations, to make meaningful dialogue the priority it so evidently wasn't for Stephen Harper's administration.
The appeal court ruling has huge implications for a number of proposed energy projects, including Kinder Morgan's Trans Mountain and TransCanada's Energy East. In fact, it should make careful reading for anyone thinking they can get their way with First Nations offering beads and trinkets.