Following last week's release of the Trans Mountain Pipeline decision by the Federal Court of Appeal, we sit down with Hugo Choquette, developer and instructor of our Aboriginal Law course, and Cherie Metcalf, the creator of our Constitutional Law module for Law 201/701. We talk about the decision itself -- it's lengthy! -- and unpack not only the duty to consult, but some other parts that haven't made the headlines as strongly, as well as discussing where the federal government can go from here.

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00:04 Speaker 1: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd, and I've seen a lot of headlines about the Trans Mountain Pipeline being affected by a court of appeal decision and the duty to consult. This is something we covered with Professor Hugo Choquette in an earlier episode in the podcast, but now that this decision's been released, we're sitting down with both Hugo, the developer and instructor of our aboriginal law course, and Cherie Metcalf, the developer and instructor of our constitutional law module in Law 201/701: Introduction to Canadian law. Cherie and Hugo talk about the decision itself, it's huge, and the duty to consult, which has been taking up the headlines, but there are other aspects of the decision too, and we take some time to unpack what the federal government's next move might be. This podcast is brought to you by The Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:03 S1: So I think a good place to start is the length of the decision. So that the caveat is, it's the beginning of the school year, everyone's teaching.

[laughter]

01:13 S1: Classes are starting. We're all busy. And this is a huge slab of decision, right?

01:20 Speaker 2: Certainly is, yeah.

01:22 Speaker 3: Yes, it's definitely a extremely long, thorough, and complex review. It's a lot to process.

01:30 S2: So... I'm a very complex processor too, which is, it needs to be said as well, so...

01:34 S1: So what factors kind of govern length? What would go... What makes this a particularly complex review?

01:40 S3: One of the things I think that makes it complex is that it involves consolidating a number of different challenges to the decisions from different parties. So there were cities involved, so Vancouver and Burnaby. There were a number of different First Nations involved, who had territory affected in different parts of the project area. There was an NGO involved. So that already, sort of having multiple different kinds of challenges, is gonna increase the complexity.

02:11 S2: Yeah, and there was... The case was also sort of a two-part case, where there was a challenge to, or an attempt to get a judicial review of the board's report, the National Energy Board's initial report. Also, a challenge to the decision itself by Cabinet to approve the pipeline. And then, as Cherie mentioned, there was a number of challenges on the basis of a failure of the duty to consult, which were brought by several different First Nations and organizations. So there is that whole complexity to it. And so, obviously, there's also a lot of factors to consider. It's a very technical thing to build a pipeline. There's a lot of moving parts, there's a lot of pieces to the puzzle, if you will. So I think just that fact alone and then the length of the process and the complexity of it makes it for a complex decision.

03:04 S1: I suppose we should actually backtrack to the decision itself, 'cause, I mean, I am someone...

03:06 S3: Right.

03:08 S1: I've just seen headlines. And the headlines are basically failure of duty to consult and this derails everything.

[chuckle]

03:15 S1: It's kind of the Coles Notes of what I've seen in headlines and on television, and so on. Is that a fair summary of what the decision was?

03:23 S2: Well, I'll say in the duty to consult part, it certainly was... It's a meaningful decision. It's a strong decision in favor of the indigenous groups' right to be consulted meaningfully. Whether that decision has wings is yet to be seen because we don't know, right, what the end of the story is yet, quite yet. But it certainly is a significant decision. I'm not sure that it warranted the level of dismay and sort of hindering that it created among proponents of the pipeline.

04:02 S1: Why?

04:02 S2: Well, because I think there's a path that the government can take to... That the federal government can take to remedy its lack of consultation. And I think if you actually look at past court decisions, while this is a meaningful sort of validation of the right to meaningful consultation, the court is also very clear that that is not the same as having a right to veto or even a right to have full agreement, right? So it's still not... This is still not Free, Prior and Informed Consent as a standard. So I don't think it's that... It's fatal, although it certainly is a major decision and it is a block to the pipeline happening now, obviously.

04:43 S3: Yeah, I think I agree with what Hugo is saying. The only thing that I think is important to recognize is that while there were flaws identified in the consultation process by the reviewing court here, they actually said that some of the things that were done were actually done properly, and were improvements on prior processes of consultation that had been found wanting. So, in general, they thought that there were things done properly, like early notification and engagement. And so it was really sort of at a later stage of consultation, where Cabinet was supposed to be sort of considering additional information and impacts, and then having meaningful dialogue about that with the indigenous groups who were involved, that they fell down on the job, in terms of their consultation obligations.

05:40 S2: Right. Yeah, I think that was one of the sources of frustration for the federal government, was that, this was actually probably the best, one of the best processes that they have used so far. If you look at some of the past decisions like the Clyde River decision, or even the [inaudible] and other federal court appeal decision, the process used there was not at all as developed and as robust as the process they used here. And over the whole course of this very long, complex process, it's really only the final phase of the negotiation that the court found wasn't adequate. The rest was actually quite well done, so...

06:18 S1: So this isn't... As you were saying before, this isn't actually catastrophic. There is a failure of a duty consult. And the way to remedy that, I guess, is consult. Is that sort of the way forward?

06:29 S2: Yeah, I think the court has sort of said what it thinks needs to happen, which is that there needs to be meaningful dialogue, as Cherie said, rather than... The three main objections the court had to what the federal government did in that final phase of negotiations, was that, number one, the Crown representatives basically acted as note-takers, so they basically just sat there, recording what the concerns were. They had no authority or power or seemingly any desire to address those concerns, to do anything to meet those concerns. The second thing is that... And this goes back to a discussion we had about the delegation of the duty to consult. The past decisions [inaudible], for example, said that it was perfectly fine for the Crown to rely on a regulatory process to fulfil the duty.

07:17 S2: If it does so, it has to ensure that that process is... Provides meaningful opportunities to engage and accommodate the interests of the indigenous groups. And here, what happened was, the federal government kind of... During the regulatory process or during the National Energy Board hearings, kept saying, "Well, this is sort of a preliminary hearing. We are going to consult some more. Don't worry, indigenous groups are going to consult some more after this process is over." Then once the process was over, they sort of adopted the stance that they couldn't impose extra conditions on the constructor on Trans Mountain, and that they weren't really at liberty to change or vary anything in the report. So it's sort of they can't have it both ways. Either the report is the deal, which the court sort of said, well, the report here is really just a recommendation to the cabinet, and cabinet is the ultimate decision-maker, but either you ensure that the process in the National Energy Board takes... Is capable of accommodating the interests of indigenous groups, or you provide another meaningful phase of negotiations after the fact. And so, you can't, on one hand, say, "Well, this is just a recommendation process." And, on the other hand, say, "Well, after it's done, we can't change it."

08:33 S1: Who gets to decide what meaningful means?

08:35 S3: I mean, hopefully, I think what the duty to consult is aiming for is that both parties to the negotiation will feel that they've reached a solution that they can sort of both agree to, right?

08:50 S1: Right.

08:51 S3: And then, in some sense, if you get there, then you've satisfied the objective of the duty of consultation, in a way, right? But if there's disagreement, then, really, it's the courts that are gonna review it, to see whether or not the process meets the standard, that essentially, it has to meet the duties of the honor of the Crown, so...

09:16 S1: And so this, this happened at the court of appeal. It might be helpful just in... Especially since you're the author of the constitutional law module 201, Cherie. Where does that sit in kind of the hierarchy of courts of Canada?

09:30 S3: I mean, appeal court sit over top of the courts of first instance to decide the decisions initially, but over top of that is the Supreme Court of Canada.

09:43 S1: Right.

09:43 S3: So, you know, one of the possibilities that's obviously sort of being talked about is whether or not the federal government might decide to appeal the decision and ask the Supreme Court of Canada to review it, which they don't have to do. So the supreme court will have to decide whether the case raises an issue of national significance that it wants to hear, that it thinks it needs to address to resolve the issues.

10:09 S1: That's actually what I was gonna ask, is the federal court doesn't... Or the federal government doesn't just get to do that, that the supreme court has the autonomy to decide which cases it's going to hear. So the federal government could say, "We'd like you to hear this, supreme court." And supreme court might say, "Sure." It might say, "Nah."

10:25 S3: Yeah, it's true. They could say, "No, we're not going to review it."

10:31 S1: Right. But I think the other important thing here is, what the court of appeal comes back with isn't like a, "Stop everything." As you've said, it's not a tear it all up, burn it all down. It's, this is what you have to do to remedy the situation, and then move forward.

10:48 S2: And it remains procedural, and it needs respect. So the court of appeal can't say anything about what level of accommodation is required in order to meet the concerns of the indigenous groups. All it can say is, "Look, this process that you've created was flawed and didn't provide an opportunity for meaningful dialogue." So, in other words, from the outset, we can tell from this process that there wasn't any possibility of real accommodation. But once you create a process or you put in place a process that allows for that, then it's really not up to the court to decide, "Well, this is meaningful accommodation or not." There's no real ability for the court to judge that. And again, the courts have been very clear that they're not going to make... That this isn't a veto on either side, right? Part of the problem here, though, is that you have entrenched interest on both sides that have come out on the record, saying that they would... So the federal government's basically have, "This pipeline will be built." And some of the First Nations that are opposing it have said, "This pipeline will never be built." So it's hard to find the common ground there, for me, for good faith negotiation, if you will, when both sides are on the record, as saying there's only one real outcome that we're going to be satisfied with.

12:05 S1: Right? And this came up, I think, in the past, we were talking about BC and their right to impose environmental standards in the province versus the federal government's right to say the pipeline will be built. To a point, you have to sort of assume good faith, that nobody's kind of just inventing pretext to keep things from happening, but everyone's actually invested in a functioning process. I mean, this seems like that's happening, I guess. From my remove, it seems like all parties involved are sincerely working towards something.

12:40 S3: I think it was... Yeah, I mean, I think, certainly, like I say, it was a very complex and involved process. And a lot of what the court does in its review is to review a whole series of possible deficiencies or challenges to the process and it dismisses quite a number of them, right? So there are... Although it does identify these, what turned out to be fatal flaws for the approval at this point, on balance, there was a lot of stuff that was done well, at least according to the court. So it's really how dramatic it is, that depends a little bit on what happens, moving forward, how entrenched are the parties, is the government able to go back and sort of ask the NEB to revisit some of this? What does that process look like?

13:33 S3: From the original perspective, one of the parties, of course, was the Trans Mountain pipeline, which was... It's a commercial enterprise. Some of the response here is about how complex, how lengthy, and how uncertain these processes are from the perspective of private companies, right, and their investors. So, at some point, it can... Even though you could, theoretically, get to an agreed outcome, the uncertainty and timeliness and all those aspects of the process can essentially be too risky for private companies, and in some ways, that it helps to explain why the federal government in this case has not just said they're behind it in terms of regulatory jurisdiction, but they've gone as far as actually purchasing the pipeline.

14:32 S1: Right, which has been kind of another thing in the headlines is...

14:35 S3: Yeah.

14:35 S1: Just sort of a oh boy. [chuckle] Wow, they really... Pig in a poke is the expression I've heard. They really sort of purchased something without really considering the ramifications of the purchase.

14:48 S2: From the consultation perspective, it actually makes things easier, because one of the problems that the court identified was, again, this reluctance by the federal government to impose conditions in addition to what was in the NEB report on a private company. As Cherie mentioned, there's a lot of valid reasons for that if you have investors who were being told your investment's secured because we're going through this regulatory process, they may not be very happy when you end up imposing other conditions after they've gone through this lengthy, complex process. In a way, that problem gets removed now that the federal government is the owner, because obviously, the federal government can just tell itself to do whatever it wants, or at least you would think it could. And so, basically, at this point, it's a matter of where those concerns are identified. Of course, you can impose other conditions. You're the one doing it, so you can make yourself do all the things that you think will be necessary to accommodate.

15:43 S2: And again, I think, looking at past experience that, if the process is sound, I don't think... I think [15:47] ____ very reluctant to interfere with the outcome, with... With the substantive outcome of that consultation process and accommodation process, unless it's obvious that they haven't taken it seriously, but certainly, the process has to be... Sort of demonstrably able to show that it's meaningful and that it's a two-way conversation.

16:10 S1: So we've talked about duty to consult fairly substantially. Again, it's a big decision. Is there other... Are there other subjects being handled in... Knowing that we haven't had time to read the entire thing and really unpack it, it only came out a couple of days ago, it is huge, and it's the beginning of the school year, but are there other things in there that kind of need to be unpacked a little in terms of where the decision's coming from?

16:35 S2: One of the things that I think sort of got missed because the main focus has been on the duty to consult is that the court also found that by not considering the Species at Risk Act... Well, let me back up a little bit. The court or... Sorry, the National Energy Board decided that the impact on the marine environment, once the tankers had left the terminal, wasn't really part of its purview. And part of the problem is you have these... I think they're called Southern Resident Killer Whales that are species at risk in the Strait of Georgia and Salish Sea. And so there's now another court challenge, actually, that's just been launched by environmental groups, saying that the government hasn't been acting according to the Species at Risk Act by not designating them as endangered and not as a threatened species.

17:18 S2: I apologize, environmental law isn't really my area, but I think that suggest... The lawsuit. And so this is gonna complicate matters as well, because one of the things the court found, in addition to the lack of duty to consult, is that that stuff should have been taken into consideration by the National Energy Board.

17:33 S1: Even though it's kind of a post-pipeline thing that happens with the ships.

17:36 S2: Yeah.

17:36 S3: Yeah. So it's this kind of complicated reading of the requirements under the NEB's own act, which triggers a need to look at the Environmental Protection Act. And then there's standards in that act, that kind of fit back into the standards that the board should be applying. So, it's looking for... The standard, I think, is it has to be sort of in the public interest.

18:03 S2: Interest. I mean, yeah.

18:05 S3: It's its own sort of legislative criteria, and then part of that is to look at the environmental assessment. And so it's one of the sort of complicated tiered things, where the board thought that its jurisdiction was more limited than it was, in terms of considering the sort of follow through effects, in terms of environmental impacts and things that it essentially didn't have jurisdiction to regulate over itself. And so the court here seems to be saying, "Well, even if you can't regulate over it, you should still be talking about the impacts and whether there are any mitigation measures that could be taken within your own project to address those environmental effects. And so that's part of what was going on with the tanker traffic and... And the board's failure to make mitigation measures and to have recommendations about that part of the project.

19:05 S1: So this is captured partly in the court of appeal decision, but you're saying, Hugo, there's even a separate...

19:11 S3: Oh yeah.

19:11 S2: It's just been broad, yeah, by World Wildlife Fund and other environmental groups.

19:18 S3: But you're talking about the Species at Risk Act.

19:21 S2: Yeah.

19:21 S3: Yeah. So that's actually even a separate thing compared with this.

19:24 S2: That's right. It's sort of a triple layer of legislation here.

19:25 S3: Because there's a whole section of this federal court of appeal decision that actually really is only about this failure to address marine tanker traffic and the environmental consequences, and that, in fact, that the court found that that, in itself, made the board's report sufficiently deficient that Cabinet couldn't rely on it. And so, even without the Aboriginal consultation issues, it would have had to send the decision back because of that. So that actually... You can see there why it's such a complex decision.

20:07 S1: Pipelines are complicated.

20:09 S3: Pipelines are hard to build, they're very complicated.

20:12 S1: Wow. Is there anything else kind of in the decision that's sort of been overshadowed by not only duty to consult, but also the environmental measures?

20:21 S2: Well, I mean, this relates to duty to consult, and again, I'm sort of cautiously optimistic about the decision. I think we'll have to see if it gets appealed. I don't think they've been quite clear on whether they're going to do that yet, and what the outcome is gonna be, but I think, taking a step back from the pipeline issue, I do think this is a victory for First Nations in terms of at least the procedural aspects of the duty to consult, and I think, for all First Nations, whether for or against the pipeline, because I think that's also important to notice, that there are many First Nations who are in favor of the pipeline, and actually want to own it. But no matter what side of the issue you're on, I think, ultimately, this is a good decision for First Nations, in that it provides a good standard for meaningful duty to consult, again, at this point, and how it develops, it's hard to know.

21:07 S1: But we're in a precedent-based system and the federal court of appeal is the only...

21:13 S3: It's a high-level court, especially for federal bodies and federal decision-makers, where it's...

21:18 S1: So this radiates in a very significant way.

21:21 S2: Yeah, it does. And I think the media attention has... Echo has shown that as well, but of course, it wouldn't be the first time the supreme court disagreed with the federal court of appeal. Either... If it did get appeal, it could be that this might all get reversed if that happens, I'm not sure. We'll just have to see. This is an ongoing sort of situation.

21:42 S1: Thank you both very much.

21:44 S3: Thanks.

21:44 S2: Thank you.

21:46 S1: Thanks to Hugo Choquette, the developer and instructor of our aboriginal law course, and Cherie Metcalf, the developer and instructor of our constitutional law module in Law 201/701: Introduction to Canadian Law. If you're interested in aboriginal law, the history of indigenous rights in Canada, and how things like the resource industry are directly linked to them, you should look into Law 202/702: Aboriginal Law, at takelaw.ca. And for a 10,000 foot view of the Canadian Constitution in our court system, Law 201/701: Introduction to Canadian Law is a great place to start. We also offer Law 205/705: Public and Constitutional Law, which is a full-focus deep-dive into the bedrock of Canadian law. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for each podcast are created by Valerie Desrochers. You can see them at takelaw.ca, and visit Valerie's portfolio at vdesrochers.com.