The court’s made the ‘adequacy’ of any degree of Aboriginal consultation impossible to predict
For the second time in two years, three judges with the Federal Court of Appeal struck down a crucially important oil export pipeline project that had undergone years of regulatory review, a decision that Ottawa now says it refuses to appeal.
The Harper government’s approval of Northern Gateway was struck down in 2016 after Enbridge spent half-a-billion dollars on a massive six-year review and Aboriginal consultation process. Now the Trans Mountain expansion, approved after a billion-dollar expenditure by Kinder Morgan, and since purchased by the federal government, has met the same fate.
It’s bad enough that a private company can’t get a fully approved infrastructure project done, but can you think of any other country in the world where three judges can overrule the ability of a national government to exercise its constitutional right to build its own project?
And, in both cases, those judges based their decision on dubious conclusions that veer from objective legal analysis into nuanced opinions seemingly designed to justify their preconceived biases.
At the heart of both decisions, the panel concluded that the government’s consultations with First Nations had been “inadequate.” Yet here is a summary of some of the consultations that took place prior to the approval of the Trans Mountain expansion by the federal government: