Pipeline Dream + Constitutional Nightmare: Trans Mountain is Approved (Again)
On June 18, 2019, in a decision that came as no surprise, the Governor-in-Council (“GiC”) approved the Trans Mountain Expansion Project (“TMX”)—a major pipeline project in which Canada wears the hats of Crown fiduciary, regulator and, as of around this time last year, owner. While there may be several sides to the debate over the impacts of the TMX, its necessity, and whether it is in the public interest overall, what is not debatable is the clear direction from the Supreme Court of Canada: any project approval that breaches constitutionally protected rights cannot be in the public interest.
The GiC’s decision was announced following Canada’s conclusion of a renewed Phase III consultation process with affected Indigenous groups in relation to the TMX (“Renewed Phase III”) by a self-imposed deadline. The Renewed Phase III was ordered by the Federal Court of Appeal (the “Court”) in its August 30, 2018 decision quashing the GiC’s original approval in Tsleil-Waututh v. Canada, 2018 FCA 153 (“the TWN Decision”). In that decision, the Court found that, while Canada could not be faulted for its first two phases of consultation, in the critical Phase III, it failed to engage in meaningful, two-way dialogue with Indigenous peoples, giving rise to a constitutionally insufficient consultation and accommodation process. The Court held that the GiC could not consider the TMX for approval again until meaningful consultation had occurred. As we have previously described, the TWN Decision did not represent new law—the Court simply applied well-settled jurisprudence on the duty to consult to the mainly uncontroverted facts before it. The Court found that the Indigenous applicants were entitled to a dialogue that demonstrated Canada not only heard but also gave serious consideration to the specific and real concerns the Indigenous applicants put to Canada, gave serious consideration to proposed accommodation measures, and explained how the concerns of the Indigenous applicants impacted Canada’s decision to approve the TMX.
During yesterday’s announcement, Prime Minister Trudeau insisted that in fulfilling the Crown’s constitutional obligations to Indigenous communities whose rights, title and interests will be significantly impacted by this approval, Canada did “better” than in 2016. In the context of constitutionally protected rights, and a federal government that states its most important relationship is with this country’s Indigenous peoples and has committed to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), is “better” really all we can—or should—expect?
As part of his clearly prepared campaign style speech (much of which will likely be repeated in the upcoming election cycle) seemingly developed well in advance of Tuesday’s Cabinet meeting, fresh off his day celebrating the Toronto Raptor’s NBA Championship Victory, and with hundreds, if not thousands, of pages of Crown consultation reports having only been delivered to Cabinet ministers a few days before on Friday, June 14, Prime Minister Trudeau justified Canada’s assertion that it had fulfilled its constitutional obligations with respect to consultation by describing a number of generalized federal initiatives and measures aimed at mitigating the significant impacts of the TMX. It is unlikely these will be enough. What was conspicuously lacking from the descriptions were accommodation measures aimed at addressing the particularized and potentially catastrophic effects on the specific Aboriginal rights and title of specific Indigenous communities along the TMX corridor and shipping routes. Generic mitigation measures that fail to engage with the particularities and uniqueness of Indigenous communities, instead attempting broad brush stroke solutions, undermine both the legislative intent of the protection afforded to Aboriginal rights under the Constitution, and run afoul of the direction of the Court in the TWN Decision.
The GiC’s approval must also be considered in light of the apparent conflict of interest Canada faces in relation to the TMX. Since the federal government acquired ownership of it, the Crown is in the unique and delicate position of holding multiple conflicting roles. It is the owner and developer of the TMX, who will enjoy significant financial benefits should the Project proceed; the regulator of the TMX through the National Energy Board, who is tasked with ensuring that it is designed, constructed and operated in accordance with Canadian laws; a fiduciary in respect of Indigenous peoples (particularly where the TMX crosses reserve lands); the Crown, who holds a unique position vis-a-vis Indigenous peoples, and has an obligation to act honourably in its dealings with them; a signatory to UNDRIP, who has committed to upholding the principles of free, prior and informed consent; and a trustee in respect of reserve lands, who holds that land—some of which is impacted by the TMX—for the benefit of Indigenous peoples.
These conflicting roles would be highly problematic in any circumstances, but are particularly troubling when, prior to yesterday’s approval, Prime Minister Trudeau and his Cabinet ministers made express statements that the TMX would be built. How can meaningful two-way dialogue occur when the outcome of the conversation is a foregone conclusion?
A further note of concern arises from Canada’s failure to address the intersection of the findings in the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (the “MMIWG Report”) and construction of the TMX. The MMIWG Report concluded that there is substantial evidence of a correlation between resource extraction projects and violence against Indigenous women, girls, and 2SLGBTQQIA people. The work camps, or “man camps”, associated with this industry are implicated in higher rates of violence against Indigenous women at the camps and in the neighbouring communities. In response to these findings, the MMIWG Report set out specific Calls for Justice for the resource extraction and development industries. Given its role as owner of a major pipeline project, which will create the exact circumstances considered in the MMIWG Report, in our view, Canada must grapple with how it will address these Calls for Justice in relation to its own project before it moves forward.
So, what does the green light, red light, green light mean for the TMX? As we stated in our blog post from 2016 when it was approved the first time: “All of this leads to a simple conclusion: expect litigation; expect appeals to the international community; and expect protests.”