The Federal Court Decision on Trans Mountain provides a roadmap for project approval and construction in Canada

– Neil Sweeney, CEO Kirk Environmental
What can the Trans Mountain Expansion Experience teach us?

Let’s stop wringing our hands and exaggerating the anticipated consequences of this decision and get on with how this decision can help achieve project approvals going forward—including the Trans Mountain Pipeline Expansion.

Full disclosure: as a former senior public servant in the British Columbia government, I was involved in many discussions with project proponents, opponents and civil servants on both the TMX application and the process by which it would be considered.  And consistent with most public servants, I support economic development where there is a thorough process that considers the benefits and risks of development and proposes measures that mitigate or ameliorate those risks.

In the case of the Trans Mountain Pipeline Expansion, there was indeed a thorough examination of the issues that were subject to the review by the National Energy Board.  I believe that Canada made the right decision in granting the Certificate of Public Convenience and Necessity to Kinder Morgan.  However, the Federal court found that the process that led to the decision was flawed, not fatally, but flawed nonetheless.

The Federal Court made two significant findings on the decision-making process that led to project approval by Cabinet.  First, the Court found that the National Energy Board (NEB) regulatory process was deficient in that it did not specifically consider the impact of increased tanker traffic on the west coast which impacts, among other species, the endangered Southern Resident Killer Whale population.

Second, the Court found that the Government of Canada failed to adequately consult with First Nations on the third and final phase of the application—that being the time between the submission of the NEB report to Cabinet, and the public decision by Cabinet.

The Court provided clear direction on how to remedy the consultation process.  In the court’s summary decision notes, the Court states, “The concerns of the Indigenous applicants, communicated to Canada, are specific and focussed.  This means that the dialogue Canada must engage in can also be specific and focussed.  This may serve to make the corrected consultation process brief and efficient while ensuring it is meaningful…”

This ruling is not, a ‘death knell’ for the pipeline expansion.

But it does provide a clearer roadmap for project proponents and governments as they continue to grapple with the meaning and appropriate implementation of the “duty to consult” in the context of economic development.

So what is that roadmap?
1. Process matters but so does substance.

The Courts have said that Canada is not to be held to a standard of perfection in fulfilling its duty to consult and several court decisions provide guidance on the duty (Delgamuukw, Haida, Mikisew, Gitxaala). However, the courts have also said that consultation must be meaningful and there must be a substantive dimension to the duty.

What constitutes meaningful consultation? Guidance on that includes:

  • Talking together for mutual understanding, a two-way dialogue – not just a process for exchanging and discussing information.
  • A dialogue that leads to a demonstrably serious consideration of accommodation.
  • Mitigation measures must provide a reasonable assurance that constitutionally protected rights were considered.
  • Testing and being prepared to amend policy proposals in the light of information received and providing feedback.
  • Does the government action “viewed as a whole, accommodate the collective aboriginal right in question?”

For economic projects to be successful, and successfully examined, updated environmental assessment processes that recognize the Crown’s duty to consult and provide for meaningful consultation and consideration of accommodation, must be implemented to prevent future negative court rulings in cases like TMX and Gitxaala, which was also judicially reviewed.  In the case of BC Hydro’s Site C clean energy project, the process that led to the ultimate decision by Canada and the BC government to approve Site C was found to meet that test.

2. Project environmental approval processes must be robust and address legitimate concerns.

Canada has already begun work on addressing the lack of confidence felt by Canadians over their national environmental approval process.  Bill C-69 is defining a new process for both project proponents and reviewers as economic development projects are put forward in Canada.

Included in that process is a new mandatory early planning and engagement phase. This phase will result in early dialogue with Indigenous peoples, provinces, the public and stakeholders to identify and discuss issues early, leading to better project design and coordinated assessment. Requirements to consider Indigenous traditional knowledge and community knowledge will also be included.

The ‘legitimate concerns’ of project proponents must also be recognized (timely, affordable and understandable assessment criteria and processes) if Canada wishes to benefit from continued investment from the domestic and international investment community. That is why legislated timelines must be maintained for impact assessments and extended to the planning and decision phases

As Bill C-69 continues to be refined by the federal government, those on both the proponent and opponent sides of economic development will be watching closely to see how their concerns and the concerns of the Senate are addressed by Canada.

3. Economic development requires an economic development strategy.

Long gone are the days when economic development was a slam-dunk in Canada.  Now, even strong projects are seeing more coordinated and sophisticated opposition than ever before.  This has resulted in environmental assessments that, despite having ‘timelines’, take far too long and generate significant controversy in their communities.

For economic development to be supported in Canada, it must be accompanied by a robust and effective economic development strategy that brings communities to the table, integrates Indigenous communities as partners, and reduces risk before projects are submitted for review.

In this way, project proponents can assemble a ‘coalition of the willing’ to provide public support in contrast to any expected opposition.  When communities, Indigenous groups, labour and project proponents are in support of a project, decisions are easier for Cabinet or other elected decision makers (as long as the environmental science is sound.)  Projects in British Columbia where this coalition was developed and successfully executed include the Evergreen SkyTrain Line expansion and Imperial Metal’s Red Chris mine in northwestern BC.

Economic development in Canada is challenging.  But by adhering to principled engagement with Indigenous groups, communities and other recognized stakeholders, projects can and will be developed in our country.   And that includes the Trans Mountain Pipeline expansion.