Only Parliament can fix Canada’s pipeline impasse – by Tom Flanagan (Globe and Mail – September 11, 2018)

Tom Flanagan is a professor emeritus of political science at the University of Calgary and a senior fellow of the Fraser Institute.

Politicians are scrambling for ways to restart the Trans Mountain pipeline after the recent Federal Court of Appeal decision. Let me offer an explanation of how we arrived at this impasse.

What has happened to Trans Mountain is not surprising. This is the third time in 12 years that the Federal Court has blocked a major pipeline proposal on grounds of insufficient consultation, following the Mackenzie Valley natural-gas pipeline in 2006 and the Northern Gateway oil pipeline in 2016.

In each case, the proposal was backed by many First Nations and Métis organizations, but a small number of First Nations (six, in the case of Trans Mountain) was able to get a court to rule that some phase of consultation had been inadequate.

These results flow from the character of the jurisprudence. In the seminal Haida Nation decision (2004), the Supreme Court created the “duty to consult and accommodate” First Nations regarding development projects on their traditional territories. That right to be consulted was not entrenched in any constitutional document or federal legislation; the Court inferred it from the “Honour of the Crown.”

It was not surprising for the Court to create new law; it happens all the time. But in this instance, the new law was exceptionally vague because the Honour of the Crown has no clear definition. It is, ultimately, whatever the courts say it is.

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