Vaughn Palmer: Retired judge says if pipeline expansion stalls, Ottawa isn't to blame
Opinion: The Iacobucci report suggests that if the project stalls again, it won’t be because Ottawa again failed to meet its obligations to consult and accommodate Indigenous people.
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VICTORIA — When a court ruled that Canada had fallen short in consulting First Nations on the Trans Mountain Pipeline expansion, the federal government recruited a retired judge to oversee an improved process.
Frank Iacobucci, a former chief justice of the Federal Court who also served a dozen years on the Supreme Court of Canada, was appointed last October.
His assignment was to provide “independent advice and guidance” on consultations that would address the failings identified by the Federal Court of appeal in setting aside Ottawa’s earlier approval of the TMX.
Iacobucci’s report on the new round of consultations was released this week, after the Justin Trudeau government approved the multibillion-dollar project for the second time.
“I am satisfied, based on the consultation record and the applicable jurisprudence, that the Crown has remedied the defects in consultation identified by the Federal Court of Appeal,” wrote the 81-year-old Vancouver-born retired justice.
“The Crown has meaningfully consulted with potentially-affected Indigenous groups.” He further says Ottawa went to reasonable lengths to accommodate Indigenous concerns.
The court-imposed obligations to consult and accommodate Indigenous people on a project of this size and scope are daunting to say the least. Details are set out in the half dozen or so pages of Iacobucci’s summary and the 200-plus pages of an accompanying report on Crown consultations and accommodations on TMX.
“I was involved in virtually all stages of the re-initiated consultation process,” wrote Iacobucci.
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Before the end of 2018, he personally hosted four roundtables with Indigenous groups in Vancouver, Victoria, Kamloops and Edmonton to clarify parameters for the revised consultations.
When the process geared up this year, he had weekly “and during certain periods almost daily” meetings and conference calls with the officials conducting the actual consultations.
Ottawa delegated the effort to more than 60 officials from 13 federal departments and agencies, organized into nine separate teams.
Of the 129 Indigenous groups in B.C. and Alberta that were identified as being potentially affected by the project, all but seven were willing to meet with the consultation teams.
Together the teams conducted 402 face to face and telephone consultation meetings.
“Correspondence and meeting summaries were logged to maintain a complete record and support transparency and accountability,” reports Iacobucci.
All this could be completed in a matter of months because the Federal Court of appeal suggested as much. The court found that the Indigenous concerns “were specific and focused and as a result, the corrected process could be brief and efficient.”
Ottawa also put up $5.3 million in additional funding to enable Indigenous groups to participate in the expedited round of consultations.
But as Iacobucci acknowledges, it was not enough for government officials to meet with Indigenous leaders, listen politely, take notes and promise to report back any concerns to the relevant ministers.
In failing the earlier process, the court said that consultations must be “meaningful.” There had to be a two-way dialogue with Indigenous groups and genuine give and take. Concerns had to be addressed and, where possible, accommodated.
This time the standard was met, according to Iacobucci.
“The Crown did not just take notes for consideration by the cabinet, but actively engaged with Indigenous groups about the potential impacts of the project and how those impacts can be minimized, often working with Trans Mountain and various government departments to provide additional information and to respond to questions asked.”
He goes on to list “broad new accommodation measures” to directly address specific First Nation concerns about ocean protection, habitat restoration, marine safety, emergency preparedness, and hunting, fishing and harvesting rights.
Not in every case did the government see a way to accommodate a concern within the plan to twin the existing pipeline.
In those instances officials “provided a reasonable rationale to Indigenous groups and did not simply take notes of the concerns or commit to describe the issues to ministers,” says Iacobucci.
But overall, “the above accommodation measures taken together are responsive to the impacts and concerns expressed by potentially-affected Indigenous groups.
“They demonstrate that the Crown has listened to the concerns expressed by Indigenous groups and has proposed reasonable measures to accommodate those concerns. This is indicative of a meaningful, two-way dialogue between the Crown and potentially-affected Indigenous groups in accordance with the Crown’s constitutional obligations.”
Not so, say some Indigenous leaders, pledging they will head back to court to overturn the new round of consultations and thus the latest project approval as well. Other First Nations say they haven’t consented to the project and have no intention of doing so.
Consultations were conducted with the aim of securing the “free, prior and informed consent” of First Nations in keeping with the language of the UN declaration on the rights of Indigenous peoples (UNDRIP), says Iacobucci.
But he then adds the following in respect of his reading of the courts on the matter of consent: “However, it must be remembered that there is no right of a veto by an Indigenous group in respect of project approval.”
The final verdict on any future challenge to the TMX project will be up to the courts and it remains to be seen whether Trudeau can keep this week’s vow to get “shovels in the ground this summer.”
But the Iacobucci report suggests that if the project stalls again, it won’t be because Ottawa again failed to meet its obligations to consult and accommodate Indigenous people.
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