Under consideration since 2012, the 1,147-kilometer pipeline (about 712 miles) would expand oil flows from Edmonton, Alberta, to ports on the west coast. As punishment for such audacity, the project has found itself on the receiving end of vindictive (and often constitutionally dubious) regulatory burden from the governments of British Columbia, Alberta and associated municipalities. Shortly after his election in 2015, Prime Minister Justin Trudeau piled on even more. When the project was finally green-lit by Ottawa in 2016, Trudeau bragged that his approval came with an additional 157 conditions.
This sort of thing is easy for conservatives to demagogue about — as are the omnipresent environmental protesters who have caused headaches for pipeline construction crews in British Columbia for six years. Yet the more substantial concern has always involved the powers of aboriginal governments, and the Canadian judiciary’s increasingly expansive understanding of “indigenous groups” as a source of legal authority transcending all others.
In 2004, the Supreme Court of Canada ruled that the Canadian constitution’s ambiguous promise to honor “existing aboriginal and treaty rights” assigned Ottawa an “obligation to consult” with aboriginal governments about the use of any lands whose jurisdiction was claimed by aboriginals — either through treaty, or, in the case of British Columbia, mere assertion of historic title. It was just the latest manifestation of a long evolution in Canadian case law and, indeed, the legal understanding of just what Canada is.
Beginning in the late 20th century, Canadian judges began to reject the logic of earlier jurisprudence on aboriginal relations, which posited Canada as a triumphant colonial power that had explicitly and purposefully extinguished all aboriginal authority. Instead, shifting legal and political philosophies came to reimagine the country as a state with a less antagonistic story at its core. Rather than victor and subject, new notions of “reconciliation and fair dealing” mandated Canada’s settler government and indigenous communities to make substantive decisions together as equals, in something edging ever closer to co-management.
Thus, last week the federal appeals court was able to overturn Ottawa’s approval of Trans Mountain on the grounds that six First Nation bands claiming title over some of the lands the pipeline will traverse felt unsatisfied with their degree of prior consultation.
To the layman, “consultation” likely evokes some Rockwellian image of worried citizens in a packed town hall expressing concerns to a dais lined with authority figures. “Consultation with indigenous groups,” however, is an ultra-bureaucratized process involving vast teams of lawyers, archaeologists, anthropologists, geologists and other assorted technical experts talking mostly to each other. In its Trans Mountain ruling, the court noted that Ottawa had provided more than 500,000 Canadian dollars to help the governments of the First Nation bands cover their consultation-related expenses.
As is often the case with adversarial negotiations of this sort, it is not clear whether the aboriginal side was ever interested in getting to “yes,” or merely intended to assemble enough evidence to secure a court ruling overturning whatever decision Ottawa wound up making. To read last week’s decision is to parse hundreds of pages of detailed accounts of back-and-forth communication between teams of lawyers and a court’s studious effort to determine if every exchange was “reasonable and sufficient” enough to meet constitutional muster. Because the precise scope of the First Nation bands’ constitutional authority is a matter of ongoing judicial clarification, it is arguably always in the interest of any aboriginal government to challenge the validity of any consultation with the hope of obtaining a precedent that expands their authority at the expense of Canada’s.
Which is exactly what happened.
The pipeline isn’t necessarily dead. Trudeau’s government purchased the project in its entirety from its original corporate masters in May, after they concluded — with forgivable logic — that completion had become impossible. Unlike a private company, Ottawa can theoretically keep consulting and litigating as long as it has tax dollars to spend. At some point, though, the courts will probably rule that aboriginal bands possess the right to simply veto any proposed activity on their traditional lands. It’s a goal articulated in the United Nations’ Declaration on the Rights of Indigenous Peoples, which Trudeau’s government is rather obliviously in the process of enshrining in Canadian law.
Last week’s ruling by the Federal Court of Appeal threatens potentially thousands of jobs in Canada’s already beleaguered energy sector. The establishment of a constitutional right to indigenous veto, coupled with a regulatory climate that’s already hostile and mercurial, could prove its death blow. That will be awful news for indigenous workers, who are disproportionately likely to hold jobs in Canada’s natural-resource sector, but will be an exciting development for the mostly non-aboriginal lawyers and consultants who populate Canada’s sprawling bureaucracy.