Ottawa and Indigenous groups disagree on fairness of pipeline consultation

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 year.

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 said.

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 Wednesday.

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 consultation.

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 purview.

This report by The Canadian Press was first published Dec. 17, 2019.