A Victory in Court for Pipelines but the Debate Continues


The decision by the Federal Court of Appeal this week to reject a challenge to the expansion of the Trans Mountain pipeline brought celebration to Alberta’s government, a sigh of relief in Ottawa and indignation to the Indigenous groups that went to court as well as to many environmentalists.

It is, unquestionably, an important step in the plan to expand the pipeline between Alberta’s oil sands and a tanker port near Vancouver, a project Prime Minister Justin Trudeau’s government deemed so important that it bought the pipeline from its American owners to make it happen. But the unanimous decision of the three judges is unlikely to be the last word on the divisive plan.

The program has pitted the province of British Columbia, where the government fears a potential for disaster from increased oil tanker traffic, against neighboring Alberta, where Premier Jason Kenney has declared the pipeline’s potential to open Asia as a market for Canadian oil as vital. It has also divided Indigenous groups between those who fear its effects on their drinking water and traditional lands and those who see economic gains from it. And stuck somewhat in the middle is Mr. Trudeau, who has consistently argued that Canada needs a strong energy industry to develop a carbon neutral future.

For proponents of the pipeline project, the decision was their second consecutive legal victory. Last month, the Supreme Court of Canada dismissed a claim by British Columbia’s government that it had the right to restrict the flow of oil from Alberta into its territory.

This was also the second time Indigenous groups had gone to court to argue that the federal government had failed to properly consult them on the pipeline. In 2018, the Federal Court of Appeal agreed that the government had not fulfilled its duty.

This time, however, the court decided that the latest round of consultations met its test.

What, exactly, makes a consultation with Indigenous people meaningful or reasonable? To find out, I spoke with Gordon Christie, a law professor at the University of British Columbia whose studies include Indigenous land rights and consultations.

“The fact of the matter is: I think it’s impossible to nail down,” he told me.

The appeal court, following previous decisions, was clear about one thing, however. The government is not obliged to follow what Indigenous groups request — or even, ultimately, to get their consent.

“The case law is clear that although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try to veto it,” the judges wrote.

One of the Indigenous groups involved in the case, the Tsleil-Waututh Nation, has said that it may now go to the Supreme Court of Canada. But Professor Christie said that because the ruling carefully followed previous Supreme Court rulings, the case may not even get a hearing.

“I had difficulty in finding anything that you could point to and say the law has not been applied correctly,” he said.

But he nevertheless found much of the decision troubling in terms of relations between Canada and its Indigenous people. Among other things, it reopened the thorny issue of who speaks for Indigenous people when it comes to land: their hereditary chiefs or their elected band councils? Professor Christie, who is of Inupiat and Inuvialuit ancestry, is of the view that it’s the chiefs, this decision and other suggest otherwise.

More broadly, this month Mr. Trudeau’s government must approve or reject a huge oil sands project proposed by Teck Resources, which is opposed by both some Indigenous groups and many environmentalists. Low oil prices and investor indifference may mean that the 20.6 billion Canadian dollar Frontier project will never be built. But the plan’s regulatory status has nevertheless gained vast symbolic importance for people on both sides of the energy debate.

And Professor Christie added that while the Federal Court of Appeal decision may be good news for the energy industry in the short term, its broader effect on Indigenous relations may be corrosive.

“The only thing I would predict for the future is that things will get murkier and more tense,” he said.

  • The Op-Docs series of short films from our colleagues in the Opinion side of The Times continues to be widely recognized. Among the nominees in the Oscars’ Documentary Short Subject category this year is “Walk, Run, Cha-Cha,” the story of Paul and Millie Cao who reunited in California after the Vietnam War and four decades later are rediscovering themselves on the dance floor. I also recommend watching “Music and Clowns,” Alex Widdowson’s witty and warm story of life with a sibling with Down syndrome.

A native of Windsor, Ontario, Ian Austen was educated in Toronto, lives in Ottawa and has reported about Canada for The New York Times for the past 16 years. Follow him on Twitter at @ianrausten.

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Source : Nytimes