Consultations have to be serious. You don’t have to get ‘free, prior and informed consent,’ as the UN wants. But you’ve got to conduct ‘meaningful’ consultations

Four words especially caught my non-lawyer’s eye in the Federal Court of Appeal’s 87-page decision in the Trans Mountain pipeline expansion case, issued Tuesday. (You wouldn’t know it by the length of these things but we don’t actually pay judges by the page. We must pay them by the footnote: learned citations barnacle just about every one of the decision’s 255 paragraphs.)
The four striking words are: veto, deference, reconciliation and honour. You don’t see much discussion of honour these days.
“Veto” appears nine times and all nine will be reassuring to Canadians who think 21st-century law is tilted in favour of anti-everything activists. Every time the court uses “veto” it’s saying something like: “A veto over the Project (i.e., the pipeline) … forms no part of the duty to consult…” Or “Canada was under no obligation to obtain consent prior to approving the Project. That would … amount to giving Indigenous groups a veto…” Or consultation “does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists (emphasis added).”
Good! No vetoes over resource projects. Or any other projects, presumably. The court even submits that “Indigenous peoples … cannot tactically use the consultation process as a means to try to veto” a project by, for instance, talking out the clock. “At some juncture, a decision has to be made about a project and the adequacy of the consultation. Where there is genuine disagreement about whether a project is in the public interest, the law does not require that the interests of Indigenous peoples prevail.”
A second word it’s good to see is “deference,” even if it appears just twice. The context is (hold on: sharp logical curves ahead) the court noting that it was the job of the Governor-in-Council (effectively the government) to decide whether the second round of consultations that in 2018 a different judge had ordered had in fact been conducted in a reasonable way. The decision concludes the G-in-C completed this job by providing an assessment of that question “that is fact-intensive and that calls for deference.” Too often Canadian courts seem not to defer to political and regulatory authorities but instead to impose their own views. This decision makes clear in several instances it’s not the courts’ job to second guess legally designated authorities.
The third word that stood out is “reconciliation.” I’m an economist, not a lawyer (to my 94-year-old mother’s everlasting regret) but “reconciliation” is such a freighted, political word it was surprising to see it used 24 times. Thus: Reconciliation is a “first principle of aboriginal law” and a “controlling concept” in conducting consultation. It is also “about relationship” and is meant to be (uh-oh, the ground is getting mushy here) “transformative, to create conditions going forward that will prevent recurrence of harm and dysfunctionality… In the end, we all must live together and get along in a free and democratic society of mutual respect.”
Too often Canadian courts seem not to defer to political and regulatory authorities but instead to impose their own views
But then just as we’re about to cue the kids’ choir for a chorus of “Kumbaya!” the court warns that “reconciliation does not dictate any particular substantive outcome.” Nor does “the fact that the consultation has not led the (First Nations’ communities that have brought the appeal) to agree that the Project should go ahead … mean that reconciliation has not been advanced.”
What the last striking word, the Crown’s “honour,” does require is consultation. It would not be “honourable for Canada to act unilaterally in a way that could affect the rights of Indigenous peoples, without first engaging meaningful consultation,” especially in view of the “tension between the Crown’s assertion of sovereignty and pre-existing sovereignty, rights and occupation of aboriginal peoples.” (Aren’t you glad that’s settlered!) Note: settlered is right: Joke.
So: Consultations have to be serious. You don’t have to get “free, prior and informed consent,” as the UN wants. But you’ve got to conduct “meaningful” consultations.
How do you do that? If you’re building a pipeline, by spending as much on billable hours as on steel. By visiting a lot. By meeting a lot. By studying a lot. By explaining in detail why you do or don’t accept suggestions for changing your plans. By keeping a detailed record of every meeting. By answering every question or comment promptly and in triplicate. By offering programs of one kind or another that address people’s concerns. And by winning over First Nations. Consent may not strictly be required. But the decision notes that 120 of 129 Indigenous groups “potentially impacted by the Project … either support it or do not oppose it.” As Nancy Pelosi would ask: Have you got the votes?
Bottom line for an economist? The price of the Crown’s honour isn’t infinite — there aren’t any vetoes, not in law at least. But it’s high. To build a pipeline you’ll have to spread the profits around.