Chris Hall, writing for CBC News, says that “The Federal Court of Appeal gave its approval this week to a handful of Indigenous communities along the route that argued the government had failed — again — to properly consult them … [and] … While that decision might not come as a huge surprise to anyone who has been following the intense, drawn-out battle over the pipeline project and the government’s legal “duty to consult” affected Indigenous communities, Ottawa’s approach to this legal challenge did raise some eyebrows … [because] … The federal attorney general presented no legal submissions or evidence to counter the claims that the consultations were inadequate … [and] … That omission was enough to prompt the presiding judge to issue written reasons for allowing the appeal to proceed — something the court rarely does.“
“Justice David Stratas wrote,” Mr Halls says, “that the government and cabinet might have “strong evidence” to support the adequacy of their consultations, and good legal arguments in favour of the court deferring to cabinet’s wishes … [but, Mr Justice Stratas said] … “At this time, however, the respondents have withheld their evidence and legal submissions on these points. So the analysis cannot progress further” … [so] … the case is heading back to court again — even though the federal cabinet has approved the project. Twice.“
Why didn’t the Trudeau government even bother to make any argument at all? Chris Hall writes that “Natural Resources Minister Amerjeet Sohi … made it clear that his department believes it acted in good faith, and that the second round of Indigenous consultations, under the guidance of former Supreme Court of Canada justice Frank Iacobucci, were thorough and met the bar set out in a 2018 federal Court of Appeal ruling … [The previous ruling said the initial consultations lacked a “genuine and sustained effort to pursue meaningful, two-way dialogue,” but] … Sohi insisted the government addressed those shortcomings. He met with about 50 Indigenous groups himself. The number of staff assigned to the consultations was increased and efforts were made to accommodate some of the concerns expressed, he said … [and he claimed that] … “We responded to issues around protection of cultural sites, burial grounds, protection of water, fish and fish habitat, around issues of tanker traffic, marine animals and coastal communities,” … “And we will continue to work to ensure … that accommodations that we have offered are being implemented” … [but Mr Hall reminds us] … the government is heading back to court.“
Chris Hall writes that “Brad Morse, dean of the law faculty at Thompson Rivers University in Kamloops, B.C., said the government’s failure to put forward any response in a case like this “is highly unusual” … [but, he suggested that] … Politics might be part of the explanation … [because, while] … Prime Minister Trudeau speaks frequently about the importance of the Crown-Indigenous relationship … [when push comes to shove] … Making legal arguments against allowing First Nations to pursue appeals — especially on the eve of an election campaign — could be seen as inconsistent with his words.” But, “another reason for the federal government’s silence might be that the affected Indigenous communities themselves are divided over Trans Mountain … [Professor Morse said] … “You have a small group of First Nations opposed, a larger group of communities who favour it and another group who want to own it … [and] … That makes it very difficult for this government that wants to have improved relations with all Indigenous groups.”“
It’s been clear to everyone that First Nations are divided on whether or not the Trans Mountain Extension (TMX) should be built, at all, with some agreeing (or just conceding) that it should but also insisting that First Nations should own some or even all of it. At a guess, the situation amongst First Nations looks something (just a bit?) like this (in % terms) …
… good data is incredibly hard to find because First Nations are, understandably, reluctant to negotiate (with Kinder Morgan, the Government of Canada and each other) in public. I think there are 135± First Nations involved with the project ~ because they are on the route or have land claims in the watersheds through which the line might pass. Something like 40-45 actually support the project (only about ⅓) but something like 100 First Nations (about ⅔) have indicated that if the pipeline is built they want at least some ownership stake in it. My own, personal view is that the Government of Canada should give the pipeline to a First Nations consortium which would be required to act as a public company in accordance with stock exchange rules, and so on.
The simple fact is that Justin Trudeau’s Liberals don’t care if the Trans Mountain Expansion is built or not. Some Liberals, likely including Finance Minister Morneau, Natural Resources Minister Sohi and a few others, actually want it to be built, but many, likely including Prime Minister Trudeau, himself, want the project to fail … after they have milked it for as many votes as it can give. Nor does Prime Minister Trudeau give a damn about First Nations … no matter what Grand Chief Perry Bellegarde might
be being paid to say want to believe.
The Angus Reid Institute says that “It is a debate often styled as “either or”. Either the federal government commits to policies aimed at reducing carbon emissions in order to meet international obligations to battle the effects of climate change or it focuses on growing Canada’s natural resource sector. But against the backdrop of a putative federal election call, Canadians are indicating they see the conversation not as “either or”, but “both, and”.” Most Canadians want their government to get serious about global climate change and about developing our oil and gas sector. “Asked which party is best to lead Canada on the climate issue, the Conservative Party, bolstered by its own loyal vote base, is viewed as best by 25 per cent. About the same number give the advantage to the Green Party (23%), while others are divided between the incumbent Liberals (18%), the New Democrats (10%) and uncertainty (18%).“
The best course of action for Canada, for ALL Canadians, in every region, is to:
- First, establish a coast-to-coast-to-coast Canadian energy corridor so that Canadian energy can be used by all Canadians and we no longer need oil tankers, filled with Saudi Arabian or Iranian crude oil, sailing into Atlantic and Québec seaports. The best way for Canadians to fight global climate change is to get Canadian oil and gas to global markets so it can replace coal-fired energy sources. This is something Andrew Scheer has promised to do, at least partially; and
- Second, give the Trans Mountain pipeline to a consortium of First Nations to operate as a publicly-traded company, listed on Canadian stock exchanges. Big Canadian banks and engineering firms will line up to help them build and manage the project.
That’s a good policy for Canada. It should be a bigger part of the Conservative platform.