Canada’s Federal Court of Appeal ruled against the Trans-Mountain pipeline’s going ahead. It is a long decision but it came down to two things: first that the Federal Government did not sufficiently consult with First Nations, second, that the National Energy Board’s report upon which the Federal Government relied in finally approving the pipeline did not consider the impact of the shipping required to carry the oil.
There are lots of political angles on this most of them entirely predictable. But what interested me was that the consultation requirements and the consideration of shipping seem so self evidently a necessary part of the process.
The NEB seemed to have taken the position that its expertise did not extend to oil tankers, potential spills and attempts to mitigate marine risks. Which, realistically, is almost certainly true. However, it would not have been beyond the Federal Government to order up a seperate risk assessment from people with the necessary expertise.
The issue of the adequacy of the Federal Government’s First Nation consultation is much more difficult. The decision outlines what the government did in terms of consultation, but it also describes what the government did not do which includes taking account of traditional First Nations knowledge and several other fairly vague deficencies.
What the Court essentially asked was, “Did the Federal Government consult enough?” and then concluded, “No, not enough.”
How much is “enough”? That is a question which this decision really does not answer. And I suspect it does not answer it because there is actually no answer which is even close to true.
In a normal process a reasonable level of public consultation would be reached when the public has been given an opportunity to comment on the matter at hand. Which is a bit vague but there is case law which fleshes out what such an opportunity might look like.
However, once environmentalists and First Nations are engaged it is not at all obvious that merely having the opportunity to comment is sufficient. Unlike a rezoning application, an application to build a pipeline (or, realistically, virtually any other large undertaking) creates the opportunity for First Nations to talk about everything from ancient hunting rights, to sacred grounds, to former village sites, to disruptions to present First Nation culture and so on. Having the enviornmentalists involved ensures that the relatively easy solution of simply paying the First Nations’ people for their consent, is off the table. That solution will be denounced by the enviros as cultural genocide and worse.
All of which creates, and might arguably have been intended to create, a Gordian knot when it comes to considering major projects. Consultation becomes an endless task and one which has no defined parameters. The decision today indicates that an extensive consultation process is not enough but it does not indicate what might be enough.
Delightfully, the shareholders of Kinder Morgan – which owns TransMountain – voted today to sell the project to Canada’s feckless Federal Government for several billion dollars.
I suspect the CEO danced a little jig relieved that he no longer had to guess at how far consultations have to go. But Canada is stuck with a completely disfunctional system which is being exploited by enviornmentalists and First Nations to prevent infrastructure from being built. That will have to be fixed.
[A fix in this sort of case might well be to sit with the FN people at the outset and ask what they would like to be consulted about. Make a list, discuss the list and then take the list to a supervising court for certification. Once that list is certified it would then be incumbent upon the proposing party to consult on those topics and only those topics. If a new concern arose it could be taken back to the supervising court which might add the topic to the list if there was a good reason or if the parties had no objection. But, if people are thinking about spending several billion dollars on a project, they have to have a process they can be certain of rather than being blindsided well down the road.)