The narrative surrounding the development of the Trans Mountain pipeline expansion spotlights the limits of the "duty to consult" in the context of resource developments impacting Indigenous rights. Following the endorsement by the National Energy Board (NEB) and subsequent approval by the federal government for this multibillion-dollar initiative, several Indigenous nations contested it, asserting insufficient Crown consultation and accommodation. In response to their legal challenge, Tsleil Waututh et al. secured a victory at the Federal Court of Appeal (FCA), temporarily halting the project.
The FCA underscored the pivotal role of dialogue in the consultation process, emphasizing the need for the federal government not only to acknowledge but actively engage with Indigenous concerns. Despite this emphasis, the scope for the integration of Indigenous legal frameworks in the decision-making process remained constrained. Post the FCA's decision, Minister of Finance Bill Morneau expressed confidence in the project's inevitability, prompting inquiries about how such certainty could be asserted when the consultation process had not commenced.
The answer lies in the concluding remarks of the court, which suggested that a streamlined and effective consultation process could greenlight the project. Crucially, this process did not hinge on Indigenous approval but mandated consultation, effectively sidelining the potential impact of Indigenous legal orders that might oppose the project. The prevailing assumption that the Crown possesses unilateral authority in the face of Indigenous opposition continues to shape the duty to consult, circumscribing the influence of Indigenous laws in responding to environmental challenges within the parameters of state law.
While the Tsleil-Waututh et al. celebrated a legal triumph, the decision hinted that further consultation might pave the way for the project, irrespective of Indigenous consent. The project has subsequently received re-approval, awaiting renewed consultation efforts. Despite potential satisfaction for the court, concerns linger regarding the possible dissatisfaction of Indigenous parties. If a First Nation challenges the re-approval due to inadequate consultation and the court dismisses the claim, the project may proceed. In response, the nation might resort to an infringement claim, necessitating the demonstration of the existence of the right in question through the demanding Van der Peet test.
The frameworks established by Sparrow and Van der Peet presume state authority to act autonomously, even when Indigenous rights are acknowledged. This underlying presumption, though infrequently supported in practice, continues to mold a consultation framework where outcomes appear predetermined—projects "will be built" once procedural consultation requirements are met. This poses formidable challenges for Indigenous communities striving to address environmental concerns through their legal systems or the rights paradigm enshrined in Section 35 of the 1982 Constitution Act. The experiences of the Wet’suwet’en and the Coastal GasLink pipeline cast additional light on the intricate challenges of Indigenous linked natural resource development.
Please note that we are in no way affiliated with Kwakwaka’wakw artist and Mamalilikulla Chief Councillor John Powell (whose ancestral name is Winidi). We do take to heart his doctrine and agree fully with his statement: "Our ancestors … gave us the responsibility to steward this land — our seas and our skies and our connection to the supernatural — and to protect, defend, nourish and house all the creatures who come from all of those elements.”