The Trans Mountain court ruling would have us accept a moral duty we can't yet meet

The ruling goes back to this phrase again and again. The demand for meaning and "meaningful dialogue" without giving us any real guideposts as to how to know we have achieved it. Jen Gerson on the Trans Mountain court ruling.

‘There is no clear objective standard to meet.’

Indigenous leaders and environmentalists beat drums and sang as they protested Kinder Morgan's $7.4-billion Trans Mountain pipeline in southern B.C. in March 2018. (Darryl Dyck/The Canadian Press)

For those of us long obsessed with the Trans Mountain telenovela, this Tsleil-Waututh Nation v. Canada ruling was the plot twist we've long been awaiting — the moment when the lead comes back from the dead with the aid of legal witchcraft.

The ruling, released Thursday, essentially quashed the National Energy Board decision that gave the pipeline expansion between Edmonton and Burnaby the legal nod to move forward. This does not mean, however, Trans Mountain is dead. 

It's still a touch premature to declare the end of Confederation, or to start littering the Rockies with mines. However, the court ruling is not benign. It speaks to the great moral challenges the country continues to face: how we balance our need to develop our resources and build infrastructure, with the rights and duties owed to the First Nations people and the environment. 

Not entirely fatal

The legal document itself is not entirely damning. The Federal Court of Appeal found two critical — but not entirely fatal — errors in the NEB's reasoning. 

The first is that the NEB wrongly limited the scope of the project when it decided how it would determine whether or not the expansion would create significant adverse environmental impacts. 

By evading the fact of the increased tanker traffic that would be funnelled into the Burrard Inlet as a result of the expansion, the NEB was able to disregard the damage that would be done to the resident orca population. 

Actually, its final ruling did detail the expected risks to the whales; but the very act of limiting the scope created a series of cascading legal failures that meant that the final report by which the government would give Trans Mountain its pass, was flawed. 

The second, far more serious error, found the NEB fell short of the constitutional duty to consult affected First Nations groups. The future of all similar projects rests on our ability to understand why, and make sure it doesn't happen again. 

Consultations need not be perfect, but …

First Nations groups do not get a veto over projects on their lands. Nor do they have to be happy with the outcome. Further, consultations need not be "perfect," according to previous case law. Rather the government is required to conduct meaningful, good faith consultation. 

While Thursday's ruling conceded that the crown's consultations were reasonable and thorough, they were not sufficiently meaningful. 

"Meaningful consultation is not just a process of exchanging information," it explains, going on to reference an earlier precedent: "Meaningful consultation 'entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback.'" 

Kinder Morgan has taken Ottawa's $4.5-billion offer to buy the Trans Mountain pipeline. (Trans Mountain)

The representatives of the Crown, then, cannot be mere note takers — diligently recording concerns and returning them to decision makers. They have to listen and respond.

"Canada was required to do more than receive and understand the concerns of the Indigenous applicants. Canada was required to engage in a considered, meaningful two-way dialogue."

It was here I hoped our honourable justices might help us mere laymen out: what, exactly, is the difference between "exchanging information" and "meaningful dialogue"? Is there an objective, straightforward moment at which dialogue between humans becomes meaningful? 

Demands with no goal posts

Surely, making changes and accommodations as a response would be evidence of meaningfulness. But is absence of accommodation sufficient proof of superficiality?

The ruling goes back to this phrase again and again: the demand for meaning and "meaningful dialogue," without giving us any real guideposts as to how to know we have achieved it, as if it expects an organic dialogue process to evolve out of a clinical, legalistic one. 

The irony is that this process can only become more cold and quantifiable every time the notion of "duty to consult" is subjected to an ever-finer filter of legal judgment. 

If we were to design a consultation process from scratch for Trans Mountain today, could we create one that we could be certain would meet our constitutional duty to consult First Nations? It seems to me that we categorically could not do this. There is no clear objective standard to meet. 

The Crown must do more than just listen to First Nations' concerns, it must respond to them in some way. I think that means someone higher up the food chain, empowered to create meaningful accommodations, must now be part of this more meaningful dialogue process. 

So, how many responses are required of the Crown to prove such responses are meaningful? What content must they contain? What ritual phrases must be uttered? What the court is demanding here is not just action, but goodwill and good intent. All parties must not only do the right thing, but feel the right way. 

Steel pipe to be used in the oil pipeline construction of Kinder Morgan Canada's Trans Mountain expansion project sits at a stockpile site in Kamloops, B.C., in May 2018. (Dennis Owen/Reuters)

It's fairly easy to spot when goodwill is absent between parties, but it's almost impossible to prove that it isn't. There will be a day when the court will be able to read a man's soul. Until then, the duty to consult is a legal treadmill. 

Until the courts can lay out clearly, explicitly, quantifiably, and objectively, what is required of us as a people in our duty to consult First Nations, then it is a moral duty that we can never meet. 

How can any of our dialogue possibly be meaningful if the consultation process is largely symbolic, as many of us suspect it to be? Isn't that the impolite secret that hides behind all of this? The government may offer First Nations people accommodations, where convenient, but we never give them a meaningful say. 

In some ways, I wonder if we would have been better off simply giving affected First Nations a straightforward veto over projects on their own land. This has the benefit of a clear and unambiguous standard. A project could get approval. Many would fail, but it would certainly cut down on billions spent in lost years and legal fees.

As it stands, the duty to consult seems to be nothing more than the court's attempt to grant deference without power to the detriment of everyone involved. 

Profoundly naive

The ruling is a serious blow to Trans Mountain, but not a fatal one. 

To wit: "As mentioned above, the concerns of the Indigenous applicants, communicated to Canada, are specific and focused. This means that the dialogue Canada must engage in can also be specific and focused. This may serve to make the corrected consultation process brief and efficient while ensuring it is meaningful. The end result may be a short delay, but, through possible accommodation the corrected consultation may further the objective of reconciliation with Indigenous peoples."

This is a profoundly naive paragraph from a set of judges that never bother to objectively define the term "meaningful." It's politically difficult for the federal government to appeal the decision to the Supreme Court — though they should, if only for the clarity it might obtain, which might contribute to a regulatory regime that a company would risk investing in. 

The re-scoping of the Trans Mountain project and a truncated consultation process may, indeed take only a few more months, I suppose. But then won't those consultations, too, be subject to further challenges? The point here is to stall. 

And every time a court comes back with an unfavourable ruling, the federal government has a way to stop the expansion altogether while saving face. 

That said, I do not think that is going to happen. 

The right way, for the right reasons

The federal government spent $4.5 billion to purchase the pipeline as it exists — with the option to continue with the expansion for several billion more. Kinder Morgan's shareholders approved the sale, also on Thursday, in the nick of time. 

I would point out that $4.5 billion is a lot of money to pay to stop a pipeline expansion that would have died on its own had the government done nothing.

If Trudeau had not purchased Trans Mountain, it's pretty reasonable to assume this ruling would have been the expansion's end. If Kinder Morgan were ready to bail on this project way back in May, there is no way they would have followed through now. 

Government has no such responsibility to its capital. It has the luxury of delay, of taking time to work out the right way to do things, for the right reason, because the process right now works well for no one. 

Still, there is still a very good chance that Trans Mountain is far from dead, though it will certainly not be completed on an expeditious timeline. And if it does not die, we Albertans, unequivocally and uncomfortably, will have the federal government to thank. 

This column is an opinion. For more information about our commentary section, please read this editor's blog and our FAQ.

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Jen Gerson is a journalist, political commentator, and co-founder of the online newsletter The Line.