The decision by the Supreme Court of Canada to dismiss the latest challenge by Indigenous groups over the Trans Mountain pipeline expansion project should not come as a surprise.
It was a predictable outcome in a line of successive rulings that Trans Mountain had met the threshold of the constitutional duty to consult and accommodate Indigenous peoples on projects or decisions that actually or potentially can affect Indigenous rights and title.
The most recent court ruling upheld another ruling by the Federal Court of Appeal this past February affirming that the federal Cabinet’s decision to approve the project in 2019 was legally sound.
Many Canadians might not know the federal government even brought in a former Supreme Court of Canada justice to evaluate the consultation efforts after the first ruling said that the initial round of consultations were not adequate. In that case, the justice gave the new attempts at consultation the nod.
Thus, it is no real surprise that the latest round of appeals would fail and be dismissed. What was not surprising also, but quite sad, was the pledge by the BC First Nations involved to continue the legal fight. Now, it is their right, of course, to do so. However, this project will do an immense good for many other Indigenous communities, not to mention Canada’s energy sector nationwide. But, part of the problem is that the legal process encourages an all or nothing mentality because either the opposing groups will win, or they will lose. Also, they either have to exercise their right of appeal or lose it. Too bad that many First Nations will lose out, as well as Canada, and that the delay itself may eventually kill the project.
The central problem is that we are at this place of continual litigation and “all-or-nothing” models because our current duty to consult framework tends to place us there. Malcolm Lavoie – assistant professor at the University of Alberta Faculty of Law – has written about how the duty to consult legal doctrine itself, despite its obvious good intentions, breeds legal uncertainty.
Lavoie raised the defining challenge is that the duty to consult is an “open-ended procedural standard.” Also, the obligations arising from that standard often are defined on a case-by-case basis, meaning that it almost invites litigation after the fact to determine if those obligations were even met.
It also means it can be difficult for the resource companies and the Crown to know in advance what the standards are.
Lavoie also noted the inherent difficulty in negotiating with multiple First Nations. The chances of at least one “hold-out” emerging in such negotiations rises obviously as more parties are added to the table. This means that one party could potentially hold up an entire project to the detriment of the many who support it. For First Nations in greater need of economic development opportunities, this could be quite unfortunate.
This scenario applied somewhat to the recent Wet’suwet’en situation in British Columbia where a group of hereditary chiefs within a larger body of people acted in a manner that imperilled the project. Now, that segment of chiefs has the right to oppose Coastal GasLink or any project, but is it fair that they hold up a project that has overwhelming support from the other parties?
Legal uncertainty often raises the cost of capital and in many cases acts as a deterrent to investment and even proceeding on a project.
It would be naïve to not assume that the opponents of specific projects know that and have legal teams who quite consciously adopt a legal strategy of using the duty to consult process itself and that uncertainty to halt and kill various projects.
This is what is called “lawfare” in some quarters. Some environmentalist groups are not shy about admitting that their legal strategy is to kill resource projects or logging or whatever activity through the process itself.
Another aspect of the doctrine that is problematic is that high-sounding abstract legal principles are also inviting litigation to define. The federal government, the provinces, and the territories all have their own duty to consult frameworks and many include noble, but vague concepts such as statements like this is in the New Brunswick Duty to Consult Policy (2011), which states: “Consultation will be undertaken in a spirit of mutual respect and trust.”
Now, that is noble language on the surface, but that language almost begs to be defined in a real-life situation. The best thing for the Crown and resource companies is for past rulings that better define these things, but often they have not, so the process itself invites more and more court decisions to clarify. It is a circular process.
Another problem in the Indigenous context is the lack of clarity around which party in the Indigenous community must be consulted. Ideally, the Indigenous community defines this, but often they do not, and the government policy is vague too. This also invites litigation.
Finally, Michael Bryant, an experienced Aboriginal rights litigator and former Ontario politician including provincial minister of Aboriginal affairs, argued in one policy paper that the duty to consult presented real problems for provincial ministries reluctant to engage with Indigenous communities for “fear of running afoul of the fiduciary duty.” Bryant also witnessed the duty being used by government lawyers as a “sledgehammer.” Bryant is also a strong advocate for Indigenous rights, but in his case, he argued for the right of veto to overcome the impasse.
Lavoie also offers practical ideas to overcome the impasse. The first is to provide specific Indigenous groups with strong property rights and governance jurisdiction, as is done in a self-government agreement or comprehensive land claims agreement. The other is for Ottawa and the provinces/territories to clean up vague language in protocols. Indigenous parties must do this too first and foremost because the duty to consult doctrine is reciprocal and says Indigenous parties must act in good faith and not frustrate negotiations.
If we don’t deal with this legal uncertainty elephant in the room, we are doomed to repeat the never-ending litigation game.
Joseph Quesnel is a research associate with the Frontier Centre for Public Policy. www.fcpp.org
