The Federal Court of Appeal's decision on Thursday to overturn Ottawa's approval of the Northern Gateway pipeline project extended the Stephen Harper losing streak in the courts. The former Conservative government gave the $7.9-billion project the go-ahead in 2014, subject to Enbridge Inc., the pipeline builder, meeting 209 conditions.
The Northern Gateway defeat echoed so many other Conservative legal losses: The stakes were huge; the issue was a central one on the government agenda; and the government's failure to follow established principle was quite basic, in the view of the Federal Court of Appeal majority.
As with some of the earlier losses – such as an attempt to bar women in niqabs from taking a citizenship oath – the defeat did not rest on new legal principles. The majority in the 2-1 ruling on Northern Gateway said they were making no new law; they were simply following the basic ground rules for development affecting indigenous communities.
The key rule was the duty to consult affected indigenous communities, rooted in the importance of "honourable treatment of Canada's Aboriginal peoples and Canada's reconciliation with them," the majority said. The project is large and important, but then, so too, it said, are its potential impacts on indigenous communities.
The majority said the courts do not set the bar high for such consultation by government. "We are not to insist on a standard of perfection; rather, only reasonable satisfaction is required." Even then, efforts fell "well short" of the "minimum standards," according to Justice Eleanor Dawson and Justice David Stratas, who jointly authored the majority ruling. (Both were appointed by the Conservative government, as were most judges on the Supreme Court who struck down or softened Conservative crime laws.)
"We conclude that Canada offered only a brief, hurried and inadequate opportunity in Phase IV – a critical part of Canada's consultation framework – to exchange and discuss information and to dialogue. 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." They estimated it would have taken an extra four months to do sufficient consultation. Justice Michael Ryer, another Conservative appointee, dissented, saying that the record of consultation was extensive.
In the niqab case, judges of the Federal Court and Federal Court of Appeal never needed to look at the complex issue of whether the government infringed women's constitutional rights by barring the niqab. Instead, the judges said, the government had failed to follow the Citizenship Act's requirement that any changes to the oath needed cabinet approval.
Lorne Waldman, a Toronto lawyer who successfully challenged the niqab ban, said the federal cabinet in the Northern Gateway case "must have known that they could not comply with their duty to consult by moving forward in the manner that they did. But they chose political expediency over their legal obligations."
In a study of the 10 biggest cases at the Supreme Court in 2014 – a study written by Mr. Harper's former legal adviser, Benjamin Perrin – the government was found to have won just one case, and clearly lost in seven. Those losses included the government's attempt to create an elected Senate, to keep thousands of convicted criminals in jail for longer terms, and even to appoint a judge of Mr. Harper's choosing to the Supreme Court. In the seven clear losses, the court was unanimous five times. Mr. Perrin concluded that the government had either received poor advice from the Justice Department or the cabinet failed to listen.