If your boss is hell-bent on firing you, would you trust him to negotiate with you in good faith? Probably not. This is how some First Nations feel about the current consultations on the Trans Mountain Pipeline. Ottawa has vowed to get the pipeline built and they want it stopped. So, what’s there to talk about?
In fact, talk is exactly what both sides need, but the prospects are not looking good. Does that mean the question will have to be settled by the courts? First nations sound like they’re leaning this way but, if so, they should think twice about this. The plan could backfire.
First, let’s provide some context. The government doesn’t deny that TMX will impact negatively on Indigenous communities, but it believes they can be “accommodated” with the right measures. For example, the Coldwater First Nation claims the pipeline poses a risk to its drinking water and Ottawa has offered to discuss rerouting it to bypass the water source.
Coastal communities such as the Squamish, Musqueam, or Tsleil-Waututh aren’t biting. They say accommodation won’t work for them. Green Party Leader Elizabeth May was kind enough to sit down with me recently and explain why.
These are sea-faring peoples, she says. They collect food from the sea, travel in boats, and plan their cultural activities around the water. A bitumen spill from a supertanker would destroy their lifestyle; and a spill, she says, is just a matter of time.
The only sure way to prevent it is to kill the pipeline – and the government has no intention of doing that. On the contrary, she says, it plans to dash off a study that supports its goals, then push ahead with construction. It is acting in bad faith.
While May is articulate and, I believe, sincere, something is wrong with this story. If this really is the government’s plan, it will almost certainly fail. Natural Resources Minister Amarjeet Sohi is already traveling the province to meet with communities and he is getting an earful on this very topic.
The government surely knows it can’t spin its way through a national debate on tanker safety. If it produces a specious report, a legal challenge will follow and the court will quickly halt the project – just as the Montana court did on the Keystone XL pipeline last week.
In short, deception and subterfuge just aren’t a real option. So, why assume this is the government’s plan? May’s frustration is telling. She’s right that the real issue here is a lack of openness, but it’s not just the government. It’s on both sides.
While the government insists that tanker traffic can be made safe, First Nations insist that disaster is inevitable. But how could they know this if, as May says, the evidence (for and against) is still being collected?
In fact, all the talk here about evidence is a bit misleading. Tanker safety is not just a technical or scientific question. It also requires difficult trade-offs between competing interests. Ultimately, it involves a judgement call about how to manage risk and reasonable people can and will disagree on this.
The Duty to Consult recognizes Indigenous Peoples’ have a critical stake in these decisions and it gives them a meaningful voice in them by allowing the two sides to work through key issues together.
These communities can count on the court to act as the umpire for the process. However, it is starting to sound like they also expect it to take their side on the issue. And that would be a mistake.
Last August, when the court found the government’s environmental assessment was inadequate, it was because the National Energy Board had failed to examine the impact of tanker traffic on marine life. Critical evidence was missing and that affected the process.
This time round, First Nations would be challenging the government’s conclusions on risk management, and that is a very different matter. It would plunge the court deep into questions around policy-making.
There is no guarantee the court would side with the communities on this. Indeed, it may show considerable deference to the government’s views. Second-guessing it on policy would be a huge encroachment on the government’s home turf.
After all, that’s what the consultation process is supposed to resolve.
At a minimum, then, the Court would look to see if First Nations had done their part in making the process work, that is, whether they had examined the evidence with an open mind.
While it would surely agree that these communities have a right to adequate evidence and that the government discuss it with an open mind, it would expect no less of them. In effect, it would look to see how far they have tried to “accommodate” the government.
The moral, then, is that meaningful dialogue is a two-way street. Progress won’t happen unless both sides are willing to suspend judgement long enough to consider both the evidence and one another’s interests. We can only hope they understand this and agree to act in good faith. After all, there’s more at stake here than tanker safety – as hugely important as that is.
These consultations are a very public test of the kind of “meaningful dialogue” the court has been championing for over a decade. If they fail because of tension and mistrust, we will have lost a huge opportunity to move the yardsticks on Reconciliation. And that would be a great loss.