Ottawa’s consultation with Indigenous groups on pipeline was meaningful: Lawyer

By Amy Smart


VANCOUVER _ Lawyers for the Canadian government say it conducted
a new round of consultations with Indigenous groups about the Trans
Mountain pipeline expansion that was reasonable, adequate and fair.

Jan Brongers began arguments on behalf of the federal government
Tuesday, asking the Federal Court of Appeal to toss out legal
challenges to the government’s approval of the project for the
second time.

The court has heard from four Indigenous groups in British
Columbia that say the government once again failed in its duty to
hold meaningful dialogue about the project during consultations
conducted between August 2018 and June 2019.

“The shortcomings of the earlier process were not repeated and
therefore these four applications should be dismissed,” Brongers
told a three-judge panel in Vancouver.

The federal government launched the new round of discussions
after the same court cited inadequate consultation with Indigenous
groups in its decision to quash the federal government’s initial
approval of the Trans Mountain pipeline expansion in August last

Brongers told the court that the government deliberately set up a
system for addressing the specific concerns of those Indigenous
groups, and then went beyond it by opening the consultation to all
129 groups the government says are affected by the project.

Instead of just listening and recording the concerns it heard,
the government instead incorporated them into broader programs that
monitor impacts on the Salish Sea and underwater vessel noise, he

The Crown has also proven its willingness to alter proposed
actions based on insight obtained through those consultations, he
said. Significantly, when the government issued its second approval
of the project, six of the National Energy Board’s 156 recommended
conditions had been amended to address particular Indigenous
concerns, he noted.

“It marked the first time the governor in council has ever
exercised its power to exercise its own conditions on a pipeline in
order to accommodate Indigenous Peoples.”

Prime Minister Justin Trudeau’s government has twice approved a
plan to triple the capacity of the pipeline from Alberta’s oilsands
to a shipping terminal in Metro Vancouver.

A three-day hearing to consider challenges launched by the
Tsleil-Waututh Nation, Squamish Nation, Coldwater **>Indian Band<** and a
coalition of small First Nations in the Fraser Valley concludes

Several First Nations, environmental groups and the City of
Vancouver had originally filed challenges making a range of
arguments including that the project threatened southern resident
killer whales.

The court only allowed six First Nations to proceed and called
for an expedited hearing focused on the government’s latest 10-month

Two First Nations have since dropped out of the appeal after
signing deals with Trans Mountain Corp., the Crown corporation that
operates the pipeline and is building the expansion.

On Tuesday, Crown lawyer Dayna Anderson disputed allegations
lodged by the Tsleil-Waututh that the federal government suppressed
and significantly altered scientific information requested by the
First Nation.

A lawyer for the Tsleil-Waututh had argued the government
withheld its peer review of three expert reports prepared for the
nation until after the consultation period closed.

Anderson said the report in question wasn’t a peer review at all,
but a summary report intended to inform Canada’s consultation team
so that educated discussions could take place.

The government provided the First Nation with the internal
review, even though it had no obligation to do so, and made the
author available to the First Nation in a meeting, she said.

“In no way did Canada attempt to suppress or alter scientific
information. To the contrary, Canada has been extremely
transparent,” she said.

A successful consultation doesn’t always mean conclusions will
change and the government found through further review that Trans
Mountain’s spill-risk assessment, which informed the National Energy
Board’s findings, was adequate, Anderson told the court.

“In fact, Canada was open to a departure if it was warranted by
the evidence. This evidence simply wasn’t as convincing as they
wanted it to be,” she said.

Another Crown lawyer, Jon Kahn, said the consultation with
Coldwater was frustrated by delays initiated by the band. The chief
and council stopped responding to government consultants over a
six-week period, declined a meeting with the natural resources
minister and asked for more time to discuss an alternate route for
the pipeline, he said.

A lawyer for the First Nation said Monday that the band has asked
for a two-year baseline study on an aquifer that provides the
reserve with its only drinking water and that could be threatened by
the project.

Kahn said information that Coldwater believes is missing about
the aquifer and the alternate route will be filed with the Canadian
Energy Regulator, formerly the National Energy Board, but
determining the length of a baseline study is outside the court’s

This report by The Canadian Press was first published Dec. 17,

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