Canada: Court overturns approval of Trans Mountain pipeline expansion; says govt. failed to adequately consult indigenous peoples
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Commentary: Canadian govt. aims for minimum on indigenous consultation; should start with respect for free, prior & informed consent
Author: Eugene Kung, Policy Options
"Canada aims for the minimum on indigenous consultation," 20 Sept 2018
The botched consultation [for the Trans Mountain pipeline expansion] represents a larger systemic failure by Canada.. Canadian federal and provincial governments have long viewed Indigenous peoples with a sort of colonial contempt, treating engagement and rights as a threat and a burden rather than a constitutional and moral duty. More often than not, this resulted in governments seeking to do the least possible, and nothing more. This approach relied on the hope that minimally consulted First Nations would not bring their grievances to court, and the cost of litigation probably did discourage many from suing.
... The judges identified three key areas where the government failed in its consultation. First, it primarily sent note-takers with no decision-making power to the consultation meetings, which meant there was no opportunity for government and First Nations to collaborate on solutions to the problems raised. Second, the government incorrectly thought it could not depart from the National Energy Board’s findings and recommended conditions, which limited Ottawa’s ability to address concerns about Aboriginal rights and title. Third, the government didn’t share important documents with First Nations in time to allow for meaningful responses before cabinet approved the project... It is possible that the government will appeal the decision to the Supreme Court of Canada, and it has 60 days to do so (from August 30). If Canada does not appeal, it can make a fresh decision after correcting the errors identified by the court — first, the deficient environmental assessment, and second, the failed consultation with the 140 First Nations... Aiming for higher than the minimum means that the starting point of consultation should be the recognition of the inherent rights, never extinguished by Canadian law, for Indigenous peoples to make decisions about what happens to their homelands and territories. It means implementing UNDRIP and respecting free, prior and informed consent.
Author: Ian Austen, The New York Times
A Canadian court on Thursday froze plans to expand an oil pipeline that the government is about to purchase, ruling that the government’s National Energy Board had not adequately consulted with Indigenous people along the pipeline’s route or assessed the project’s potential effects on the waters off British Columbia... While the practical effect of the decision may be a comparatively short construction delay, the ruling added fuel to an already incendiary debate over the Trans Mountain pipeline... After the pipeline’s owner, Kinder Morgan of Houston, abandoned its plans to add a second pipeline along the existing Trans Mountain route in April, Prime Minister Justin Trudeau’s government stepped in to buy [the pipeline]... Environmentalists and some Indigenous groups immediately called the ruling a major victory, and some of them urged Mr. Trudeau’s government to give up on plans for the expansion... Mr. Trudeau’s backing of the pipeline... was to some degree a move to persuade Alberta to join his national carbon-tax program. Alberta’s energy industry, particularly the oil sands, is a major carbon emitter, making the province’s cooperation vital... Rachel Notley, the province’s premier, said that Alberta was withdrawing from the carbon-tax program until construction began on the Trans Mountain extension... The court said that the new set of consultations it had ordered would most likely be “brief and efficient while ensuring it is meaningful,” making for “a short delay” in the pipeline project.
Author: Rod Nickel, Reuters
A Canadian court on Thursday overturned approval of the Trans Mountain oil pipeline expansion, ruling that Ottawa failed to adequately consider aboriginal concerns... Trudeau’s government agreed in May to buy the pipeline from Kinder Morgan Canada Ltd for C$4.5 billion ($3.46 billion), betting it would win the court battle and expand Trans Mountain despite fierce political and environmental opposition... [T]he federal government failed to adequately consult First Nations, as required by law, [the Court] ruled. The decision also hurts Canada’s oil producers... In a statement, Kinder Morgan Canada President Ian Anderson said the court ruling was not a condition of the pipeline’s sale to Ottawa. He said the project is suspending construction. Kinder Morgan Canada shareholders voted on Thursday to approve the pipeline’s sale to Ottawa... Canada has the option to appeal the ruling to the Supreme Court but Morneau said the government had made no decisions and needs time to study the ruling.