Tuesday, September 04, 2018

Not Merely Window Dressing

The Federal Court of Appeal rejected the Trans Mountain Pipeline Project because, it said, there had not been "meaningful consultation." But what, exactly, does that mean? Don Lenihan writes:

After last week’s judgement, lots of Canadians are confused: if the First Nations at the table are firmly opposed to the pipeline, how can dialogue lead to anything but disagreement?
CBC journalist Terry Milewski goes even further. If consultation isn’t just listening – if the government must engage in dialogue to “accommodate” Indigenous concerns – aren’t we saying that First Nations have the power to say no to the pipeline, that is, that they have a veto?
First, the ruling explicitly states that meaningful consultation does not create a veto. This is simply a misunderstanding. But neither does it commit government to accept whatever views a community espouses. That too is a misunderstanding.

So, what is the correct understanding of the phrase?

Dialogue is a rules-based process where the participants are expected to listen to one another, learn about each other’s concerns, discuss their similarities and differences, weigh evidence, and work together to strike a better balance between competing values and interests. We can call these “the rules of engagement.”
Reliable information is also critical so, to prepare the way, government usually carries out some preliminary research. In the Trans Mountain case, this included an environmental impact study and some legal analyses on which Indigenous communities’ rights might be affected by the pipeline and how. The results of these studies were then made available to affected communities and each one was invited to respond.

Reliable information is at the crux of the matter. National Energy Board Assessments have for years been tilted towards the oil barons. But, besides that bias, other kinds of information have simply been ignored -- particularly issues at the heart of life as native people live it:

The issues push discussion beyond scientific or legal analysis and into an examination of the community’s emotional, aesthetic, and spiritual life. Assessing the impact calls for new ways of gathering information, including listening to stories about the community’s lifestyle, examining its cultural practices, and investigating its oral traditions.
Engagement experts call this kind of evidence lived-experience and Community Dialogue is a – perhaps the – critical tool for gathering and interpreting it. Dialogue provides a forum in which the community can use this information to challenge the government’s plans and propose changes to it. Officials, in turn, are expected to respond and, where appropriate, to challenge the community’s views.

The bottom line is that two things are paramount:

First, the dialogue should remain focused on how the project will impact specific Indigenous rights. Any claims or demands beyond this are not part of “the duty to consult” and should be treated no differently from those made by non-Indigenous Canadians.
Thus, while a community may be committed, say, to the reduction of greenhouse gas emissions, the government’s responsibility to accommodate that commitment applies only insofar as it can be shown to be necessary to address an impact on some Aboriginal right.
Second, even where such an impact can be established, government is free to propose alternate ways to address the concerns. Thus, if it can show that, say, more stringent safety standards will prevent tanker spills that may be enough to achieve a reasonable accommodation.

The Kinder-Morgan "consultation" papered over these elements. The Court has decreed that real consultation is not merely window dressing.

Image: CBC


The Mound of Sound said...

The good faith of consultation is something no one should expect from the federal government, whether Conservative or Liberal.

Here's an example of how Trudeau and company operate. It comes from the SCC decision in the Carter, right to die case. The court's per curiam decision was clear on what aspects of end of life rights were protected by the Charter. Plain as day. Crystal clear. The court specifically said the test was "unbearable suffering" and not imminent terminal illness. It also specified that in degenerative diseases, such as ALS, the afflicted should be allowed to make their end of life decision before they were deprived of the ability to communicate. What happened? Trudeau and Justice Minister Jody simply ignored all that and introduced a bill that flouted the decision and abridged the constitutional Charter rights of all Canadians. They applied their political filter to a ruling as powerful as any that has ever come out of the SCC. They took themselves outside the law to displace the rule of law.

Here we have a situation too conveniently blamed on Harper's rigged National Energy Board. Trudeau was not reluctant to denounce the NEB during the 2015 campaign when he spoke of lofty principles such as First Nations consultation and "social licence." Once he scored a majority win all those bets were off.

He didn't purge the NEB as he had promised. He virtually ignored First Nations as noted in the federal appeal court decision. He wiped his feet on social licence. Then, in a move that is rarely recalled, he did his own review seeking the opinion of affected federal ministries only to gather the operating heads of those ministries and direct that they only submit opinions supportive of the TransMountain pipeline. That was to be concealed. Someone leaked the memo and the notes of that backroom meeting to the National Observer. It illustrates that Trudeau is and remains a dodgy little fucker unhesitant to roll up his sleeves, grab a mic and lie straight into the faces of the Canadian people even as he goes behind their backs to manipulate them.

There's been a litany of this sort of shit from that craven punk. Remember electoral reform?

Owen Gray said...

When it comes to Trudeau's record, Mound, electoral reform is my most painful memory. Once again, the courts have stepped in to call out abuse of power. They are the best and most powerful check we have on government.

Owen Gray said...

I appreciate your comment, Anon. But it needs to be initialled before I'll post it.

Lorne said...

Thanks for this much-needed explication of the consultation process, Owen. i do, however, share Mound's concern about Trudeau's integrity in all of this. It brings to mind some of the committees i served on when I was teaching. Too often, when it was an in-school one initiated by the principal, the outcome, despite input that contrasted with the administrative vision, seemed pre-ordained, the committee mere window-dressing to lend an air of legitimacy to the ultimate decisions being made/imposed.

Owen Gray said...

I, too, remember sitting on committes like that, Lorne. Everything depended on whether or not the principal was a control freak.

Jay Farquharson said...

Manditory reading:


Owen Gray said...

Thanks for the link, Jay. I've come across this piece before. Buchanan is generally unknown, but his influence as been univerdally pernicious. You're right. It's required reading.

Anonymous said...


It seems that people in power don't know or care of the difference between consultation and notification.

- J.

Owen Gray said...

Nicely put, J. Those in power tell you what they have done and what you should do. They don't ask, "What should WE do?"