Naomi Sayers is an Indigenous lawyer from the Garden River First Nation who has a public-law practice. She is also an adjunct professor at Algoma University.
In its hearing of Indigenous concerns on the Trans Mountain pipeline-expansion project, the Federal Court of Appeal confused consultation questions with consent questions. Indigenous parties were led to believe that their concerns would be heard, acknowledged or, at minimum, valued if they participated in a consultation process. The federal court’s decision on Tuesday tells the rest of Canada that this is not the case and that Indigenous concerns are pushed further to the margins in favour of the public interest.
In its 2020 appeal decision, the federal court confused the Indigenous participation in the consultation process with tacit consent, and failed to meaningfully consider the Indigenous perspective.
While some Indigenous groups are vying for a stake in the pipeline, other communities have objections. Similar to any other diverse group with various interests, Indigenous groups remain divided.
In the courts, Canada’s future is decided by what is in the public interest, with Indigenous perspectives being acknowledged in a public-interest analysis. The public interest is a vague, arbitrary standard that exists in law and is rarely defined, but is usually invoked as what is the best for the well-being or welfare of the general public.
Existing on the margins of the public-interest debate usually lies Indigenous communities and concerns, often talked about but rarely acknowledged, heard or valued. For Canadians, the debate likely looks polarized; it is those Indigenous communities versus Canada.
For Canada’s Federal Court of Appeal, the debate examined whether Canada’s consultation on the Trans Mountain decision was adequate in law to address the initial shortcomings in the first consultation. Nine parties challenged the original Order in Council, with four of the original nine parties challenging the second Order in Council decision.
While many agree that Indigenous parties should not have a veto over such projects, Canadians fail to consider that when rulings such as that of the federal court choose vague public interest, this creates a veto over many Indigenous concerns. The federal court confused Indigenous participation in consultation with consent for the project as a whole, causing an illogical and unjustifiable conclusion that Canada met its duty-to-consult obligations.
The federal court recognized that consultation efforts are guided by the controlling question: What is required to maintain the honour of the Crown and to effect reconciliation between the Crown and Indigenous peoples?
The federal court further held that reconciliation is about mutual respect; it is about a relationship, but that reconciliation does not demand a specific outcome. In this holding, the Federal Court of Appeal stated that if reconciliation did indeed dictate a particular outcome, then Indigenous people would have a veto over projects, failing to ignore how the public interest creates a presumed veto at the outset.
It is the assumption that what is good for Canada must be good for Indigenous peoples, ignoring how this perspective creates these disputes over these kinds of projects in the first place.
The law says Indigenous people must participate in the process and if they refuse, they cannot raise any disputes later, saying the process was inadequate. It’s a double-edged sword.
In the end, the federal court critiqued the reliance on unnecessary delays and insisting on matters of form rather than of substance. This presumes that Canada’s consultation, in substance, did its legal duty to consult Indigenous parties.
However, it is very much in the Indigenous people’s right to critique matters of form, as such matters inform substance; the way consultation is conducted can impact the substance of consultation. Indigenous people do not request a veto over projects; they request respect for their interests, dignity, membership and belonging in Canadian society.
Sadly, the federal court made an error that ignored Indigenous people’s lack of consent to the project. Canada made a commitment to seek free, prior and informed consent from some of the parties. The federal court stated the following:
“That being said, Canada was under no obligation to obtain consent prior to approving the project. That would, again, amount to giving Indigenous groups a veto.”
In order for reconciliation to be effective, the question is not what is good for Canada in free and democratic society; rather the courts must consider the resilient manner in how Indigenous peoples exercise the rights over their lands and have done so since time immemorial, to the benefit of the rest of Canada.
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