Tsleil-Waututh Nation versus Bill Morneau, the duty to consult, and the public interest

The Federal Court of Appeal ruling, Tsleil-Waututh Nation v. Canada (Attorney General) has put a stop to the Trans Mountain Expansion. For now.¹

Many folks thought that the Trans Mountain expansion was destiny. Some, like Canada’s Minister of Finance, Bill Morneau, still do.

Raincoast Conservation Foundation and Living Oceans Society are both named in the ruling because they argued it was unlawful for the National Energy Board to pretend that marine-related issues weren’t relevant to the environmental assessment of the pipeline. Raincoast and Living Oceans were right.

Luckily for us, “small details,” like the relevance of project-related marine issues, do matter.

It was, in other words, not okay for the NEB to ignore the ocean. And it was not okay for the NEB to fail to comply with the Species at Risk Act.

So the Trans Mountain expansion is no longer legally warranted to continue building.

But there’s another detail that I’m interested in. See, the judges had quite a lot to write about two important concepts: the duty to consult, and the public interest. The ruling makes clear that “the public interest and the duty to consult do not operate in conflict.”²

Say it with me. The duty to consult Indigenous people does not conflict with the public interest.

I think this is very interesting given that since the ruling Bill Morneau and the Liberals have spent their time telling us that they’re “committed” to buying and building the pipeline, because it’s in the public interest.³

The rule of law requires that we understand that “a project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest (Clyde River, paragraph 40).²

When Bill Morneau goes on television and says the pipeline is going through, he is failing to understand a core detail of the ruling.

I’m no lawyer, but I think he’s contradicting a central feature of the legal ruling; a true consultation requires a legitimate dialogue.

And a legitimate dialogue requires that the pipeline cannot be a foregone conclusion. So how can Bill Morneau go on public television and claim it is?

[563] The jurisprudence of the Supreme Court on the duty to consult is clear. The Indigenous applicants were entitled to a dialogue that demonstrated that Canada not only heard but also gave serious consideration to the specific and real concerns the Indigenous applicants put to Canada, gave serious consideration to proposed accommodation measures, and explained how the concerns of the Indigenous applicants impacted Canada’s decision to approve the Project.