You can read a much shorter version of this post, published on October 10, 2018 by the CD Howe Institute, here:
On August 30, 2018, the Federal Court of Appeal (FCA) set aside the federal Cabinet’s approval of the Trans Mountain Pipeline Expansion (TMX) project. One of its two reasons for doing so was its finding that the Crown’s consultation with several First Nations (FNs) about the proposed projects had been inadequate. The court criticized the government officials doing the consulting for seeing their roles as largely note-taking and communicating FNs’ concerns to the Cabinet, rather than engaging in a responsive two-way dialogue to “grapple with” their concerns. To approve TMX again, the Crown will have to comply with the court’s requirement for further consultation. With respect, I think the court was wrong.
A number of FN chiefs have made public statements that the government needs their permission to proceed with the pipeline, which permission they will deny. That is incorrect. The SCC has held that the Crown’s duty of consultation does not give FNs a veto over project approval. Yet this FCA decision (as well as a similar FCA decision in the earlier Northern Gateway Pipeline case) has given FNs an effective veto. The two decisions have now created two bad precedents. Continue reading “Trans Mountain Appeal Part 2: The Crown’s Duty to Consult First Nations”