Image by William Chen via Wikipedia (CC BY-SA 4.0)
The Federal Court of Appeal recently overturned Ottawa’s approval of the Trans Mountain pipeline expansion, citing a lack of proper consultation with affected Aboriginal peoples, as required under Section 35 of the Constitution Act, 1982. The duty to consult Aboriginal peoples and accommodate their concerns arises when government decisions may affect the rights of Aboriginal peoples. This often occurs in the context of resource extraction projects and the environmental assessments that are required in order for those projects to proceed. The Court recently ruled that there was insufficient consultation between the National Energy Board and Kinder Morgan Canada’s Trans Mountain Pipeline project and the Squamish Nation, whose lands lie along the proposed pipeline route.
What is the Kinder Morgan Pipeline?
As Akkila Thirukesan noted in our earlier post on Kinder Morgan, the Trans Mountain Pipeline expansion project involves tripling the pipeline’s current oil capacity from 300,000 to 890,000 barrels per day, at a cost of approximately $7.4 billion. This new pipeline will run diluted bitumen from the Alberta oil sands to the BC coast. Prime Minister Justin Trudeau was critical of the project during the 2015 federal election campaign. But since assuming office, his government has championed the project as a way to get Alberta oil to the coast and to export markets overseas.
The approval and ongoing litigation over the Trans Mountain Pipeline are occurring against the backdrop of Canada’s lengthy record of failing to consult with Aboriginal peoples. This is echoed by the language in the ruling, with the Federal Court of appeal noting that “Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns,” and that as a result, “the duty to consult was not adequately discharged.”
A number of major concerns were flagged by the Federal Court of Appeal, including environmental ramifications and threats to marine life. There is concern surrounding increased tanker traffic harming Canadas already endangered killer whales and other deleterious effects on the fragile coastal environment. Notwithstanding these concerns, the federal government maintains that the pipeline is in Canada’s national interest.
Based on the recommendation of the courts, the National Energy Board has begun a new hearing process for the Trans Mountain pipeline expansion. Giving the deadline of October 3rd to apply to appear at the hearing, the NEB was clearly focused on moving ahead as quickly as possible. On October 8, 2018, the Minister of Natural Resources appointed former Supreme Court of Canada Justice Frank Iacobucci to facilitate a new round of consultations with Aboriginal peoples along the proposed pipeline route. Iacobucci is well known from his numerous engagements with Indigenous communities over his legal career, including the Truth and Reconciliation Commission’s 94 Calls to Action.
This expedited hearing process raises significant concerns about the depth of the federal government’s stated commitment to reconciliation with Canada’s Indigenous peoples. While the economic impact of the pipeline expansion will be significant, this cannot come at the expense of constitutionally protected Aboriginal rights and must be weighed carefully against the very real risks of a spill along the pipeline route, particularly at its terminus in the coastal waters of British Columbia.
Many Indigenous communities are casting the Federal Court of Appeal’s decision as an opportunity for the federal government to "get this right," and Prime Minister Justin Trudeau has acknowledged that while the project must proceed, completing the pipeline must be done in "the right way." This commitment on the part of both sides to "getting it right" and the fact that Iacobucci is working without a deadline will hopefully insulate this latest round of consultations from the intense political and economic pressures facing the federal government, who would clearly like to see this pipeline built as quickly as possible.