Jay Currie suspects the process has been intentionally complicated to the point that there may not be a way out for this government:
What the Court essentially asked was, “Did the Federal Government consult enough?” and then concluded, “No, not enough.”
How much is “enough”? That is a question which this decision really does not answer. And I suspect it does not answer it because there is actually no answer which is even close to true.
In a normal process a reasonable level of public consultation would be reached when the public has been given an opportunity to comment on the matter at hand. Which is a bit vague but there is case law which fleshes out what such an opportunity might look like.
However, once environmentalists and First Nations are engaged it is not at all obvious that merely having the opportunity to comment is sufficient. Unlike a rezoning application, an application to build a pipeline (or, realistically, virtually any other large undertaking) creates the opportunity for First Nations to talk about everything from ancient hunting rights, to sacred grounds, to former village sites, to disruptions to present First Nation culture and so on. Having the environmentalists involved ensures that the relatively easy solution of simply paying the First Nations’ people for their consent, is off the table. That solution will be denounced by the enviros as cultural genocide and worse.
All of which creates, and might arguably have been intended to create, a Gordian knot when it comes to considering major projects. Consultation becomes an endless task and one which has no defined parameters. The decision today indicates that an extensive consultation process is not enough but it does not indicate what might be enough.
Delightfully, the shareholders of Kinder Morgan – which owns TransMountain – voted today to sell the project to Canada’s feckless Federal Government for several billion dollars.
I suspect the CEO danced a little jig relieved that he no longer had to guess at how far consultations have to go. But Canada is stuck with a completely dysfunctional system which is being exploited by environmentalists and First Nations to prevent infrastructure from being built. That will have to be fixed.
