Thread by @KristenPue

Today I spent a couple of hours reading the #TransMountain federal
court decision in full. Here’s a thread explaining what it all means:

The Federal Court of Appeal’s decision on Trans Mountain is based on two issues: (1) the issue of tanker traffic was inappropriately excluded from the NEB’s decision and (2) the Government did not fulfil its duty to consult, specifically at Phase III.

(Phase III was after the NEB had made its recommendation but before the Governor in Council made its decision).

On the issue of tanker traffic: essentially, the NEB defined the project such that increased marine traffic was not included as a consideration. They did gather some evidence on the tanker traffic, though, and found that

(1) it would have significant adverse impacts on the environment (esp. on killer whales and Indigenous communities) and (2) there was no way to mitigate these effects.

That would be a big problem for the decision if the tanker traffic were included in the project, but since it wasn’t the NEB was able to decide that the project was in the public interest.

The court found that the NEB should have included tanker traffic in the project, which would have affected how they weighed the environmental and social harms.

But since they didn’t, the court ruled that the NEB recommendation did not effectively count as a “report” that the Governor in Council could rely upon in making its decision. This relies on a way of thinking about NEB reports and justiciability as determined in Gitxaala.

Oh, and by the way – considering the tanker traffic would have implied dealing with the Species At Risk Act.

So, that was problem 1. The second issue was with the duty to consult. Here, the court found that the consultation process was well-designed and improved upon the inadequate consultation process in Gitxaala. HOWEVER:

In phase 3 of the process (after the NEB decision was made), the govt failed in its duty to consult for 3 reasons: it didn’t engage in a two-way dialogue, the government was reluctant to depart from the NEB findings, it erroneously believed that it couldn't impose new conditions

NOTE: the court stuck to existing interpretations of the duty to consult in its ruling.

(1) The court found that the government did not engage in two-way dialogue, which is required for consultation. The consultation team were primarily “note-takers” – they listened and transmitted concerns, but didn’t have the power to meaningfully engage with those concerns.

This is a problem because there were things that Indigenous groups couldn’t raise during the NEB process.

(2) Indigenous groups raised concerns with the NEB findings, but the government did not provide a meaningful response to these concerns. Instead, it “passively hear[d]” these concerns and was reluctant to depart from the NEB decision.

Essentially, the court found that adequate consultation should have included a willingness to consider the omissions, errors, and adequacy of the NEB’s report. That includes the pesky issue of tanker traffic, which Indigenous groups saw as a major issue.

(3) Similarly, the government consulted on the false assumption that it could not impose additional conditions on Trans Mountain. That assumption limited its ability to meaningfully consult on how to accommodate Indigenous groups.

Oh, and also: the Government disclosed very late in the process that it did not consider the project to have a high level of impact on Indigenous groups. Indigenous groups had two weeks to respond.

Some people are raising the fact that the Trudeau government did all of this extra stuff to increase the pipeline's legitimacy. They have been asking: if that’s not enough, what is? The answer is essentially that new initiatives didn’t actually address the flaws with the process.

They failed to fix the underlying problems with the NEB’s decision – since the government was committed to sticking with the findings of the NEB. So, if you want to know what the government could do to improve for next time:

1. The NEB messed up by not including the tanker traffic issue, which the government ought to have been aware of. Next time, they should insist that all major environmental issues are considered, however inconvenient.

2. Consultations are about finding solutions: governments should be engaged responsively. Representatives should have the power to do more than listen, and the government should be open to changing its mind.

I’m neither for nor against pipelines in the abstract, but I think the process should be fair, consider every relevant issue, and uphold the duty to consult. And it didn’t, here.

A quick addendum: I grew up in Alberta. Please don’t demonize Alberta or Albertans. We care about the climate and Indigenous rights! But it’s frustrating to have an acute infrastructure need that isn’t being met for reasons beyond your control. Please be compassionate about that