In Depth

Trans Mountain pipeline: Did the Crown act 'honourably' toward First Nations?

No matter who owns the Trans Mountain pipeline, its future will be determined by the courts.

A duty for Crown to consult aboriginal groups 'with honour' is baked into Canada's constitution

The question of consultation concerns the consideration of First Nations peoples whose land and customs might be affected by the Trans Mountain expansion. (Darryl Dyck/Canadian Press)

No matter who owns the Trans Mountain pipeline, the answer to the $7.6 billion question of the project's future likely lies within the bulging green and blue cardboard-covered volumes of legal arguments found at the Federal Court of Appeal.

The recorded entries for Tsleil-Waututh Nation et al v. AGC et al list 434 records.

The question at hand: in giving Kinder Morgan the go-ahead to twin its pipeline, did Ottawa adequately consult with the aboriginal groups impacted by the project?

'Find a way to approve'

The case was supposed to have wrapped, with only the decision left to come, but the challengers applied this month to re-open the evidentiary file after the publication of an article suggesting "that Canada sped up the review of the project."

To some degree, the latest filings underscore the overall legal issues at play in the case.

The Tsleil-Waututh — a Coast Salish Nation whose hunting, fishing and gathering grounds encompass the Burrard Inlet area where the pipeline ends — cite articles in the National Observer based on documents obtained through freedom of information and interviews with unnamed whistle-blowers.

The Tsleil-Waututh, whose name translates to People of the Inlet, are lead plaintiffs in a case challenging Kinder Morgan's proposed pipeline expansion. (CBC)

The stories claimed that even as federal officials told members of the First Nation no final decision had been made, public servants were told "to find a way to approve the project."

The Crown is fighting the motion to reopen the record, asking the judges — essentially — to look at the facts of the decision, not the emotion surrounding it.

"Substantively, adequate consultation does not become inadequate simply because some individual Crown servants may have expressed concerns about the process or their desire to ensure that the consultation is ultimately found to be legally sound," the Crown states as part of its argument.

"Similarly, defective consultation does not become adequate simply because some individual Crown servants express their satisfaction with the process or confidence that the consultation will be held to be constitutionally adequate."  

'The stakes are huge'

The Tsleil-Waututh is the lead plaintiff in a challenge to the pipeline involving a number of First Nations who claim they weren't adequately consulted on the Trans Mountain project.

The framework for the questions at the heart of the case was established in a 2004 Supreme Court of Canada ruling concerning the province of British Columbia and decisions involving licences to harvest trees on Haida Gwaii without the consent of the Haida Nation.

A 2004 case involving a battle over forestry on Haida Gwaii resulted in the framework courts have to consider in questions of aboriginal consultation. (Andrew S. Wright / Parks Canada / Gwai Haanas)

As then Chief Justice Beverley McLachlin put it: "The stakes are huge."

Likewise, the Tsleil-Waututh say the Trans Mountain pipeline expansion plans threaten their very way of life.

They claim the threat of a spill in Burrard Inlet is inevitable and the additional tankers the project would bring could eliminate the southern resident killer whales which are a cornerstone of their culture.

"Canada's efforts at consultation and accommodation scarcely amounted to more than giving notice and receiving (the Tsleil-Waututh Nation's) views," they argue.

"Such an approach cannot be reconciled with the duty of deep consultation that Canada acknowledged was required of it in the circumstances."

'The honour of the Crown'

In the Haida decision, McLachlin wrote in terms that could equally apply to the current conflict between the government, Kinder Morgan and First Nations peoples like the Tsleil-Waututh.

"Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so," McLachlin wrote.

"The honour of the Crown requires that these rights be determined, recognized and respected."

Former Supreme Court of Canada Chief Justice Beverley McLachlin wrote the 2004 decision that provided a framework for the duty to consult. (Fred Chartrand/ Canadian Press)

McLachlin said the concept of honour is core to reconciling the relationship between the Crown and the aboriginal societies whose existence pre-dates Canada.

As far as the Kinder Morgan approval is concerned, Canada argues that it has learned from the lessons and rulings of the past and consulted to the degree required.

And an earlier federal appeal court ruling on a different pipeline — the now defunct Northern Gateway project — provided the roadmap.

The court in that case found that the Crown had "offered only a brief, hurried and inadequate opportunity … to exchange and discuss information and to dialogue," the decision read.

"It would have taken Canada little time and little organizational effort to engage in meaningful dialogue on these and other subjects of prime importance to Aboriginal Peoples. But this did not happen."

Back in 2004, McLachlin said every situation will be different. The impact on some projects will be minor. On some, major. And on the spectrum, many will fall in between. 

The Crown has to act accordingly in all cases.

"This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim," McLachlin wrote.

"Rather, what is required is a process of balancing interests, of give and take."

About the Author

Jason Proctor

@proctor_jason

Jason Proctor is a reporter in British Columbia for CBC News and has covered the B.C. courts and mental health issues in the justice system extensively.