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