Ms Soapbox spent the long weekend poring over the Federal Court of Appeal’s decision nullifying the Order-in-Council that approved the Trans Mountain pipeline expansion (TMX). Mr Bumble’s comment in Oliver Twist comes to mind. Mr Bumble said if the court thought he could control his domineering wife, the law was an ass.
By now the entire country knows the FCA put a hold on the construction of TMX.
Everyone has an opinion, it’s a good thing, it’s a bad thing, did the Liberals learn nothing from Northern Gateway, is it another example of western alienation, etc.
Have any of these people read the decision or are they content to misrepresent it in the hopes of drumming up votes?
Let’s look at the decision; but first some context.
In Dec 2013 Trans Mountain filed an application to build and operate the Trans Mountain Expansion Project with the NEB.
In May 2016 after reviewing tens of thousands of pages of evidence and hearing from 1600 participants, the NEB recommended to the GIC that the Project be approved subject to 157 conditions.
The Crown consultation process started in 2013 and ended in Nov 2016. It was augmented by the work of a Ministerial Panel which identified “any additional views that could be relevant to the Government’s final decision” but was not part of the Crown consultation process.
In Nov 2016 the GIC accepted the NEB’s report and issued an Order in Council approving the Project subject to the NEB’s 157 conditions.
A flurry of appeals and applications for judicial review were launched and decisions were rendered.
Then on Aug 30, 2018 the FCA put TMX on hold. It said the NEB report to the GIC was so flawed the GIC could not rely on it in making its decision and the Order in Council was nullified.
The FCA decision
The FCA’s identified two fatal flaws: (1) the NEB “unjustifiably” defined the scope of the Project to exclude Project-related tanker traffic and so avoided the need to mitigate the adverse effects of increased marine traffic on the Southern resident killer whale, and (2) Canada did not adequately discharge the duty to consult with Indigenous people.
Flaw #1: Project Scope
The NEB said that unlike Transport Canada, Port Metro Vancouver, Pacific Pilotage Authority and the Canadian Coast Guard, it had no jurisdiction over Project-related shipping, namely tankers going in and out of Westridge Marine Terminal.
Consequently, it excluded Project-related shipping from the Project scope. This meant it would assess the environmental and socio-economic effects of increased marine shipping under the NEB Act and conduct an Environmental Assessment under CEAA but would not address the impact of increased marine shipping on the Southern resident killer whale under the Species at Risk Act.*
The FCA said the Project scope should have included Project-related shipping, the Project was a “designated project” under Canadian Environmental Assessment Act (CEAA) and triggered the Species at Risk Act which required the NEB to address the adverse effects increased marine traffic would have on the Southern resident killer whale.
Commentators who say it’s bloody obvious the NEB screwed up clearly haven’t read a prior FCA decision in which the FCA dismissed an appeal of the NEB’s failure to include marine shipping in the TMX Project scope because the appellant should have raised its concern at the beginning of the NEB hearing when the NEB could have considered it fully.
They’ve also not read this FCA decision where the FCA fails to explain why it ignored its previous decision and makes a pathetic attempt to justify the inclusion of Project-related shipping in the Project scope with a bootstrap analysis that starts with a CEAA guidance document CEAA says “is for information only” (it’s not a statutory instrument) and adds Trans Mountain’s evidence of steps it’s taken to enhance tanker safety plus NEB conditions on marine safety to reach the conclusion that tanker traffic is “incidental to” the Project and should be included in the Project scope.
The NEB is an expert tribunal. It has the jurisdiction to consider matters of fact and law. It determined it did not have jurisdiction over Project-related marine vessels. The FCA tied itself into knots to demonstrate otherwise.
Flaw #2: Duty to consult
The NEB identified 130 Indigenous peoples who might be affected by the Project. Seventy-three were granted intervenor status and six brought applications arguing Canada had failed in its duty to consult.
The FCA reviewed the principles applicable to the duty to consult:
- It arises from “the honour of the Crown” (a promise is a promise) and the protection of aboriginal and treaty rights in section 35(1) of the Constitution Act, 1982
- It is fact specific
- The depth of consultation increases as the strength of the prima facie Indigenous claim and seriousness of potentially adverse effects increases
- Strong Indigenous claims may trigger a duty to accommodate, weaker ones may not.
- The Crown’s duty to consult can be fulfilled in whole or part by the NEB process, but it’s up to the Crown to ensure the NEB consultation is adequate.
- The duty to consult is not a duty to agree and does not give Indigenous people a veto.
The Crown’s consultation process started in 2013. It had four phases and was complemented by a four-month consultation process run by the Ministerial Panel.
Critics argue Canada learned nothing from the FCA’s criticism of the Northern Gateway consultation process. This is not true.
The Crown’s consultation process in Trans Mountain, unlike the process in Northern Gateway, did not withhold information from Indigenous applicants, it did not present inaccurate information to the GIC, it granted time extensions, it responded to information requests, it disclosed its assessment of the strength of Indigenous parties’ claims to right or title and its assessment of Project impacts and it made Ministers available.
The FCA ruled the consultation process was reasonable and satisfactorily implemented with the exception of Phase III which kicked in after the NEB closed the record and ended before the GIC rendered its decision. Phase III was intended to address concerns not addressed in the hearing or by the NEB conditions and Tran Mountain’s commitments.
At this point everything fell apart according to the FCA.
The FCA acknowledged the consultation team was respectful and did a good job of understanding and accurately documenting the Indigenous applicants’ concerns and presenting an accurate and unbiased report to the GIC.
Nevertheless, the FCA found the consultation team failed to engage in “meaningful dialogue and grapple with concerns” so as to explore possible accomodation.
The FCA attributed this failure to the consultation team’s unwillingness to depart from the NEB’s findings and “genuinely understand” the concerns raised, as well as the GIC’s erroneous view that it could not add more conditions.
What should the consultation team have done?
Critics suggest the team should be more than stenographers.
Okay, but it didn’t have decision-making authority. It couldn’t substitute its views for that of the NEB. What should it have done to “meaningfully grapple” with concerns such as:
- rerouting the pipeline to avoid an aquifer
- implementing specific recommendations already covered in generic NEB conditions
- reconsidering the behavior of diluted bitumen in the marine environment
- putting a spill response centre on the reserve and funding it with a per-barrel spillage fee based on product flowing through the pipe
- implementing a resource development tax on proponents with projects located on traditional territory
Did the team have better expertise than the NEB to make different recommendations to the GIC? Or was it enough that the team presented an accurate and unbiased account of Indigenous concerns to the GIC?
One of the three judges in the Northern Gateway case said its consultation process was just fine. The TMX consultation process was far better than the Northern Gateway consultation process and all three judges said it wasn’t good enough.
The courts are right when they say it’s impossible to take a “check the box” approach to consultation, but it would help if they stopped moving the goal posts in the name of “meaningful dialogue”.
What should the GIC have done?
The GIC is the final decision-maker when it comes to approving interprovincial pipelines. It reviews the NEB report and can: (1) direct the NEB to dismiss the application, (2) accept the NEB’s report and conditions and direct it to issue the certificate, or (3) ask the NEB to reconsider its recommendations and conditions and resubmit the report.
The GIC picked door number two. It accepted the NEB’s report and conditions and directed the issuance of the certificate.
But wait, the FCA says there’s a fourth option: The GIC could have imposed additional conditions of its own on TMX and the fact it didn’t do so is another reason why the Crown failed to fulfill the duty to consult.
The GIC has never imposed its own conditions on a project. When did it get this new power? When the FCA gave it to them in the Northern Gateway (Gitxaala Nation) case.
The Supreme Court of Canada will one day let us know whether the FCA is correct. But given the pipeline expertise at the GIC compared to pipeline expertise at the NEB it’s not clear Canadians would want the GIC to have this power. (One shudders to think what conditions a Cabinet full of climate change deniers would slap on to an NEB project.)
Where do we go from here?
Well Ms Soapbox wants to go on vacation until this whole thing blows over…
But Canada will not be able to get a pipeline to tidewater if the FCA decision stands so it must be appealed on the grounds that the FCA was wrong to include marine shipping in the Project scope, and it was wrong to conclude the Crown failed to satisfy the duty to consult.
The feds could amend the CEAA to make it clear that a “designated project” does not include marine vessels moving in and out of marine terminals and just to be on the safe side, they could restart the consultation process.
Because as Mr Bumble pointed out, sometimes the law is an ass.
*Updated to clarify the fact the NEB conducted an Environmental Assessment under CEAA but since it decided the Project did not include Project-related shipping, decided it could not not address the impact of shipping on the Southern resident killer whales under SARA.