Author Archives

Andrew Roman

There is so much misinformation, narrowly biased coverage and raw emotion online that concern me about our society's ability to think critically about the important issues of the day. I want to provoke a deeper level of thought by offering an explanation of issues as I see them. You may agree or disagree, but hopefully you will at least think about the issues.

I am a retired litigation lawyer with over 40 years of experience in environmental, electricity, competition, and constitutional issues. I have appeared at all levels of court including the Supreme Court of Canada, and in every province of Canada. I have been invited as a guest lecturer at almost all of the law schools in this country. I am also the author of over 100 legal articles and a law book, and have been an adjunct faculty member at four Canadian law schools.

Trans Mountain Appeal Part 2:  The Crown’s Duty to Consult First Nations

TW

First Nations celebrate their court victory.

FCA

The Title and Location of the Court Decision.

Introduction

You can read a much shorter version of this post, published on October 10, 2018 by the CD Howe Institute, here:

CD Howe Institute.

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”