VICTORIA — Far from issuing a death warrant for the Trans Mountain pipeline expansion, the Federal Court of appeal wrapped up a lengthy judgment this week with suggestions on how Ottawa could save the controversial project.
Through more than 250 pages and almost 800 clauses, Justice Eleanor Dawson — who wrote the decision — weighed myriad objections raised by myriad opponents.
Most she rejected. Complaints about procedural unfairness. Unfounded. Applications for judicial review. Dismissed.
She and her two colleagues on the panel of judges were not persuaded by the brief from the B.C. NDP government, nor most of the points raised by Burnaby, Vancouver and even the First Nation opponents of the project.
One had to read more than halfway through the mammoth document before getting to the critical error by the national energy board: “Unjustifiably excluding project-related marine shipping from the project’s definition.”
Not until almost the end did the court flag the federal government’s fatal-to-the-approval-process failure in the final round of consultations with First Nations.
“Canada failed to engage and dialogue meaningfully and grapple with the concerns expressed to it in good faith by the Indigenous applicants so as to explore possible accommodation of these concerns.”
Moreover, the court reckoned that Ottawa could have done it properly with minimal delay, extending the process by about a month beyond the actual date of approval in November 2016.
Those two failings led the court to quash the cabinet approval for the project, an outcome Thursday that had opponents celebrating what they took to be the end of the road for pipeline expansion.
But that was not how the court saw it. Rather, in the closing clauses of the judgment, Justice Dawson and her colleagues suggested a two-step rescue plan.
For starters, the cabinet should refer the project back to the national energy board for “reconsideration,” this time taking into account the concerns flagged by the court about the impact of increased tanker traffic on marine safety and species at risk, particularly the orca population.
The court noted how the cabinet can “direct the board to conduct that reconsideration taking into account any factor specified by the cabinet.”
Probably that would entail beefing up the federal government’s $1.5 billion ocean protection plan, which was weighed and found wanting (“inchoate,” “insufficient”) by the court.
In order to keep the do-over from becoming a vehicle for unreasonable delay and suffocation-by-due-process, the court says the cabinet would be within its rights to “specify a time limit within which the board shall complete its reconsideration.”
Then on the second concern raised in the judgment, “Canada must re-do its Phase 3 consultation,” with the five First Nations and one Indigenous collective that were fighting the project in court.
However, it does not mean that the crown must secure consent from each First Nation and/or unanimity among all of them.
Court-imposed obligations to meaningfully consult First Nations and accommodate their interests, if possible, can be complex and demanding. They do not imply a veto.
“Canada is not to be held to a standard of perfection in fulfilling its duty to consult,” said the Federal Court earlier in the judgment.
“At the same time, Indigenous claimants must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart the government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached.”
Hence the court believes that the new round of consultations need not be excessively time consuming.
“The concerns of the Indigenous applicants are specific and focused. This means that the dialogue Canada must engage in can also be specific and focused,” wrote the judge.
“This may serve to make the corrected consultation process brief and efficient while ensuring it is meaningful. The end result may be a short delay. But through possible accommodation, the corrected consultation may further the objective of reconciliation with Indigenous peoples.”
So the board would revisit the issue with a narrower focus under a strict time limit. The federal government would then conduct consultations that will be both meaningful and free of unreasonable delay.
Easy for the judges to say. But one doesn’t have to look too deeply into the modern-day history of resource development and project approval in this province to have doubts that this thing can be expedited in anything resembling short order.
Nor is it clear that even the most protracted process could resolve what is likely to be the toughest issue for public consumption, namely concerns about the impact on the orca population.
For the threat is not just collision, but rather the impact of shipping noise and vibrations and still not fully understood reasons for the declining population of orcas in the waters that will be traversed by the tankers.
The board would not be asked to weigh the impact on the orca population of existing marine traffic, including ferries, cruise ships, containers ships and tankers serving the five refineries in Washington state. Nor assess the provincial capital’s long-standing and still unchecked dumping of untreated sewage into those same waters.
Rather, the question would be whether the addition of one large tanker per day would provide the tipping point for the orca population.
Easy to answer in light of the environmental movements vaunted precautionary principle. Not so if one were mainly concerned about the economy, investment, resource development and getting the country’s oil resource to global markets.
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