Steel pipes earmarked for the construction of Kinder Morgan Canada’s Trans Mountain Expansion Project sit on rail cars at a stockpile site in Kamloops, British Columbia. (Dennis Owen/Reuters) The federal Liberal government ended up choosing a seasoned judge to lead renewed Indigenous consultations efforts on the Trans Mountain expansion project after Ottawa received a stunning rebuke from the Federal Court of Appeal last month that quashed cabinet approvals.
Frank Iacobucci, an 81-year-old former Supreme Court of Canada justice, has a daunting task before him: jump-starting a reboot of the so-called Phase 3 consultation process with Indigenous peoples so the government can meet its constitutional duty to consult with them before making another final decision on whether to proceed with construction.
Iacobucci will do this without a set deadline from Ottawa — a signal, experts told CBC News, that the government expects this new process will take months, not weeks. That’s a troubling sign for oilpatch boosters who increasingly are restless about constrained pipeline capacity, and for the opposition Conservatives who are pushing for a fast resolution to the legal quagmire.
Despite this new process, Prime Minister Justin Trudeau has already said the project will be built, but in "the right way."
The author of the Federal Court of Appeal decision, Justice Eleanor Dawson, did not mince words in her ruling, describing the Trudeau government’s Phase 3 efforts as a "failure" — and using that word well over 100 times in a 272-page decision.
Iacobucci will now have to ensure there is meaningful, "two-way" dialogue between the Crown and affected Indigenous communities.
While Dawson called previous federal consultants glorified "note-takers" who recorded concerns without acting, Iacobucci and his team will be empowered to turn feedback into action, where possible.
The previous Crown consultation team believed, erroneously, that it could not add more conditions to the project than those the National Energy Board (NEB) already imposed as part of its Phase 2 consultation phase, the court found.
It also did not consider alternative routes, as the Coldwater First Nation had suggested, believing it could not interfere with the regulator’s expertise on these matters. It also essentially ignored warnings from the Sumas people of B.C.’s Fraser Valley that the project’s path would disrupt Lightning Rock, a culturally significant spiritual and burial site .
"The Crown must be prepared to make changes to its proposed actions based on information and insight obtained through consultation," the court wrote in its decision. "Canada is obliged to do more than passively hear and receive the real concerns of the Indigenous applicants." Iacobucci no stranger to Indigenous relations
Iacobucci has had a busy career since stepping away from the top court in 2004 — chairing many government inquiries and fact-finding missions on everything from the alleged torture of Arab-Canadians and the shooting death of Sammy Yatim to an investigation into former Alberta premier Alison Redford’s alleged ethical challenges.
And Iacobucci is no stranger to the Indigenous file. He was tapped by former prime minister Stephen Harper to help pick the Truth and Reconciliation Commission (TRC) commissioners who studied the Indian residential school system, and he led reforms in Ontario to better represent Indigenous peoples on juries.
His law practice (he still works with a top Toronto law firm, Torys) is focused on Indigenous issues and he recently co-authored a report titled, "Navigating Uncertain Future Indigenous Engagement Requirements: A Road Map for Project Proponents."
Most recently, he was the former Ontario Liberal government’s lead negotiator with First Nations peoples in the province’s north on development of the massive Ring of Fire mineral deposit, which runs through sparsely populated areas inhabited mostly by Ojibwa, Oji-cree and Cree peoples. The Honorable Frank […]
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