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opinion

Is the Northern Gateway pipeline still viable? In a decision released last month, the Federal Court of Appeal brought the project to a standstill because Canada failed to adequately consult affected aboriginal groups.

The Trudeau government can salvage Northern Gateway by rectifying aboriginal consultations. If it chooses not to, the project will almost certainly perish despite this country's pressing need for new pipelines to transport Alberta's landlocked resources to tidewater.

The court's decision underscores the reality that aboriginal communities have constitutional rights that must be taken into account in project development. The decision also exposes the frailties of Canada's framework for aboriginal consultation, in particular the government's reticence to engage First Nations outside of the relative predictability of regulatory processes.

Northern Gateway is a massive and complex undertaking with an estimated capital cost of $6.5-billion. It has taken more than 18 years for the permitting and approval process to reach its present stage.

The federal government crafted an approval process for the project including a framework to undertake consultations with affected aboriginal groups. In 2006, as part of the framework, Ottawa created a joint review panel and assigned it the dual responsibilities of conducting an environmental assessment and preparing a report with recommendations to the federal cabinet.

The joint review panel commenced public hearings in 2012. First Nations were entitled to participate in the hearing process. Many did, submitting traditional knowledge studies, adducing expert evidence, cross-examining witnesses, and making submissions.

The court noted that the joint review panel process provided affected aboriginal groups with the opportunity to learn about the project and its potential effects on their rights, while also affording aboriginal participants an opportunity to voice their concerns.

The joint review panel completed its deliberations in 2013. It concluded that the project's potential adverse environmental effects are not likely to be significant and that the project is in the public interest.

Six months later, at the behest of the Harper government, an order-in-council was issued accepting the joint review panel's findings and conditions. The order-in-council noted that the project would diversify Canada's energy export markets and contribute to Canada's long-term economic prosperity.

Canada then commenced direct consultations with affected aboriginal communities about the report and any project-related concerns that were outside the joint review panel's mandate.

This marked the first opportunity for aboriginal groups to engage with federal officials on matters of substance and not procedure. And this is where Canada habitually misses the mark in its dealings with First Nations.

Affected First Nations were given 45 days to inform Canada in writing about their concerns, and they were told to keep their responses to no more than two to three pages in length.

The arbitrariness of Canada's approach was compounded by the insufficiency of any meaningful dialogue at consultation meetings. Federal officials explained they were responsible for gathering information but were not authorized to make decisions.

The record before the court revealed that the meetings did not afford a full discussion of the issues raised by aboriginal participants. Also, some of the information conveyed by federal officials to their senior counterparts did not accurately or completely convey the concerns expressed by aboriginal representatives.

The court was also critical of Canada for failing to disclose its internal assessments of the strength of various First Nations' claims to unextinguished aboriginal rights, including aboriginal title.

The court found that Canada failed to engage, dialogue, and grapple with the concerns expressed by the First Nations. Furthermore, there was no indication of any intention on the part of Canada to amend or supplement the conditions imposed by the joint review panel.

From the court's perspective, what was missing was someone from Canada's side who was empowered to do more than take notes and who could respond meaningfully to the points raised by the aboriginal participants.

It did not go unnoticed by the court that Canada delegated much of the task of consulting affected aboriginal groups to the project proponent. Enbridge Inc. was on its own leading up to the joint review panel hearings, engaging with all aboriginal groups within 80 kilometres of the pipeline corridor as well as other aboriginal groups that self-identified as having an interest in the project.

The court described Canada's consultation efforts as unacceptably flawed, indicating they fell well short of the mark, and failed to maintain the honour of the Crown.

These findings are a stinging rebuke given the critical importance the Harper government placed on building pipelines to pursue export opportunities in expanding markets.

One wonders why so much was left to chance given the interests at stake. The consultation framework was designed to manage legal risks. And by the time the joint review panel completed its deliberations, aboriginal groups opposed to Northern Gateway had made clear their intention to launch legal challenges to stop the project.

Faced with this reality, the response by the architects of Canada's consultation framework was wholly deficient and unwittingly provided the basis for a successful legal challenge.

Major project approval in Canada has become an arduous and costly undertaking with uncertain outcomes. Even where projects are in the national or regional interest, governments can't trivialize the duty to consult or delegate the heavy lifting to industry.

Perhaps the key lesson for Canada is that aboriginal consultations are more than an exercise in risk management. Federal officials have to be prepared to roll up their sleeves and directly engage aboriginal groups in a free and candid exchange of information on all subjects of genuine interest to those communities

Douglas Eyford, Q.C., is a Vancouver-based lawyer who was appointed by former prime minister Stephen Harper as the government's envoy on West Coast energy issues. In 2013, after extensive meetings with aboriginal groups in Alberta and British Columbia, Mr. Eyford recommended governments build more effective relationships with aboriginal groups around resource issues.