The Government of Canada has been steadfast in its commitment to doing resource development the right way. That includes the hard work necessary to move forward on the Trans Mountain Expansion (TMX) project by following the guidance from the Federal Court of Appeal (FCA).
On August 30, 2018, the FCA identified three flaws in the government’s previous consultations on the project:
- the government had acted as note takers, rather than engaging in meaningful two-way dialogue;
- the government was unwilling to depart from the National Energy Board’s (NEB) findings and conditions to consider other accommodations; and
- the government incorrectly believed it could not impose additional conditions on Trans Mountain Corporation (TMC) to address Indigenous concerns.
The government accepted the FCA’s findings and committed to follow its guidance.
A Different Process
To address these flaws, the government established a renewed approach designed to meaningfully engage with Indigenous groups in a two-way dialogue. It was led by Crown consultation teams, which were more than double the size of the original teams in 2016, and included expertise from across the government. The issues raised by Indigenous communities were communicated regularly to decision-makers, including ministers, to ensure consultation teams were empowered to discuss and propose robust accommodation measures.
The government also appointed former Supreme Court Justice, the Honourable Frank Iacobucci, to provide oversight and direction to Canada on the revised consultation and accommodation process. He worked directly with officials and experts, as appropriate, including the Minister of Natural Resources and Consultation Leads, to ensure that the process proceeded according to the guidance provided by the FCA. This also included hosting a number of roundtables in late 2018 — with 120 representatives from 69 Indigenous communities — to discuss the approach to consultations.
What emerged was one of the most exhaustive and comprehensive consultations ever conducted by the federal government for a major project. In addition to consulting with 129 Indigenous communities, the Minister of Natural Resources also met with more than 65 Indigenous communities along the project route.
In following the guidance set out by the FCA, the government:
- tailored the consultation process with Indigenous communities and expanded the mandate of consultation teams to discuss and agree to accommodations, where appropriate;
- provided participant funding to help Indigenous groups participate in the process; and
- reported regularly to decision-makers and ministers on issues raised at the consultation tables in order to enable meaningful, two-way dialogue as required by the Court.
The new process also used a whole-of-government approach, which brought together the right people from the relevant federal departments to address emerging concerns. TMC was also invited to take part in the consultations to help mitigate potential impacts of the project on Indigenous Interests.
The Crown Consultation and Accommodations Report
The Crown Consultation and Accommodation Report (CCAR) (PDF, 5.2 MB) represents a summary of the government’s engagement with Indigenous groups. It details the consultation process, the substance of the two-way dialogue as Indigenous groups and the government grappled with priorities and concerns raised, as well as the accommodation measures that emerged.
The report found that the consultation process, including the re-initiated Phase III consultations had: addressed the issues identified by the FCA decision; been conducted in good faith; offered meaningful two-way engagement; provided responses and, where appropriate, reasonable accommodations to address potential impacts on Indigenous Interests. Accordingly, it concludes that Canada has met its legal duty to consult and accommodate.
Responding to Indigenous Concerns
During consultations with Indigenous groups, several key concerns were expressed, including: the importance of bolstering marine safety; protecting the oceans and the iconic Southern Resident Killer Whale; managing the cumulative effects of the project; and the need to strengthen emergency response.
In response, the government worked with Indigenous communities to develop eight accommodation measures.
These measures are in addition to the NEB recommendations, as amended by the Governor-in-Council, which address concerns of specific communities, such as enhanced marine response capacity or fish habitat restoration. They specifically address the project-related impacts on Indigenous rights and concerns, cumulative effects along the project corridor and economic opportunities for Indigenous communities.
Taken together, these measures demonstrate that the government took action to address the key flaws identified in the FCA’s decision and did things differently to ensure meaningful engagement during the re-initiated consultations.
These consultations were undertaken in a spirit of cooperation, partnership and good faith, with a view to finding common ground. The government’s priority was to ensure meaningful consultation and, where appropriate, reasonable accommodation in a way that promotes negotiated resolutions, and which take into account potentially impacted Indigenous rights.
The government has benefited from the ongoing exchange of views with Indigenous communities and remains committed to meaningful, responsive and transparent consultations as we move forward with the project.
Moving Forward (Phase IV consultations)
Moving forward, the government will look to implement a single window for Indigenous communities and other Canadians to ensure that the conditions attached to the project, as well as other commitments advancing environmental protection, economic benefits, safety and Indigenous participation, are met.
Phase IV consultations will engage directly with Indigenous communities to discuss potential impacts of regulatory authorizations on their rights, as well as other outstanding issues related to the project.
This will include working with communities, other relevant government departments, and TMC to ensure that safety, accommodation, and other project-related measures are taken into account as the project moves forward.
We look forward to building on the meaningful, two-way dialogue to date as Phase IV begins.
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