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The Trans Mountain ruling shows we need to acknowledge Indigenous peoples’ jurisdiction over their lands and establish joint decision-making processes.

If the federal government wants the Trans Mountain project to see the light of day, after the Federal Court of Appeal halted the pipeline, it must rebuild bridges with the Indigenous nations most affected. It must give them a real say in a revamped and more comprehensive impact assessment process. This will be time consuming, but so will an appeal to the Supreme Court — a legal move that won’t necessarily end in the result it seeks. The government must therefore go back to the drawing board, but how exactly?

In her 260-page Federal Court of Appeal decision , released on August 30, Justice Eleanor R. Dawson provides ample evidence that federal authorities, despite multiple warnings, paid only lip service to Indigenous concerns over the possible impacts of the project. The court reminds us that Indigenous peoples have rights in Canada, and that these rights are protected by the Constitution. By failing to properly consult Indigenous communities affected by the project and make all efforts to accommodate their concerns, the federal government violated its constitutional duty and acted in a manner that is inconsistent with the principles that should guide reconciliation, including dialogue and mutual respect.

Following precedents set by the Supreme Court and its own precedent in the Gitxaala Nation decision concerning the now deceased Northern Gateway Pipeline, the federal appeal judges argue Canada cannot simply “listen” to Indigenous concerns. When a project is likely to have a significant impact on the proven or asserted rights of Indigenous peoples, the Crown must demonstrate its willingness to “engage, dialogue and grapple with the concerns expressed to it in good faith by the Indigenous groups impacted by the Project.”

More than “taking notes”

The court filings show the federal government was fully aware of the flaws in the National Energy Board’s environmental review process, most notably concerning the risks resulting from a significant increase in the number of large tankers carrying heavy bitumen in the densely populated and environmentally fragile Burrard Inlet. A number of Indigenous groups raised reasonable concerns to that effect, as well as about other aspects of the proposed pipeline expansion.

The court notes that on some issues, Indigenous groups even produced their own impact assessment and made specific recommendations for the regulatory authorities to accommodate their concerns. The evidence produced in court suggests they were largely ignored. Instead of engaging with Indigenous groups, federal officials simply promised to “bring their concerns” to the relevant authority. No real dialogue, no substantial discussion. During consultations, the federal representatives were just taking notes. Meaningful dialogue, the court argues, “required someone representing Canada empowered to do more than take notes — someone able to respond meaningfully to the applicants’ concerns at some point in time.”

This last remark brings us to the crux of the problem. Despite its lofty commitment to reconciliation and its very public endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the federal government still operates as a benevolent sovereign in its relations with the original inhabitants of the land. Because it was told to do so by the courts, it now consults Indigenous peoples. But it does so without truly changing the way decisions are made. Ultimately, Indigenous peoples are still considered stakeholders, whose rights and interests must be taken into consideration, along with other imperatives, rather than as partners in the decision-making process. When they are consulted, the federal government simply “takes notes.”

The irony here is that while the federal government was defending the […]

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