There are lessons we need to learn about the meaning of “consultation.”
IF THERE'S ANY WORD that’s undergone a moulting of sorts in these modern times, it’s the now politically overused and clichéd term consultation. Not so long ago this was a respected word, a solid and honest word that intimated the benefits of putting two or more heads together to discuss an idea or plan with the goal of making it a better one. Then Politics started watering it down.
In the last few years I’ve grown increasingly more curious and cynical about government consulting, a now ballyhooed process that mostly seems to happen with First Nations and environmentalists, and mostly when huge, land-razing projects are on tap. What do they talk about? Is the process respectful and meaningful? Are both sides equally weighted in authority and stature, and are the initiators prepared to make concessions? How do they achieve a workable consensus? When someone talks, does anyone really listen?
When the prime minister says he still needs more time to “engage in meaningful consultation” with First Nations before finally announcing the decision he’s already made on the Trans Mountain pipeline expansion, what is it that he still needs to do? Talk people to the brink of exhaustion and capitulation? Offer incentives, the way my dad long ago offered a case of beer to the highway snowplough driver for taking a quick veer up and down our hopelessly plugged lane? (We used to call that “bribery” back then.) Is the exercise of political “consultation” mostly a charade that we all play along with? Are we satisfied with just the optics of due diligence?
First Nations protest Trans Mountain Pipeline expansion project
It’s not hard to imagine the hodgepodge of authoritarian tactics governments might once have used to get business interests rolling, colonial-style, on Canada’s vast tracts of territorial land. But that would have been curbed in 1982, when former prime minister Pierre Elliot Trudeau amended the Canadian Constitution to include Section 35, which cemented the rights of Indigenous peoples in Canadian law.
That forced governments at all levels to begin developing careful protocols for consultation, a trickier process in British Columbia because 95 percent of our province is still unceded territory, meaning that the land claims, treaties and ownership of almost the entire 944,735 square kilometres have yet to be sorted out. Consultation became a fine dance for governments because, while they typically want to discuss ways to get a mine going or a pipeline pushed through on a particular tract of land, First Nations communities ensconced on that land are astutely more interested in first raising their ownership issues, a deviation that can end up in a legal battle that stalls projects for years.
All this has reshaped the exercise of consultation, especially after several court cases around fishing, hunting and forestry all ruled in favour of First Nations. The latter, a 2004 Supreme Court case involving a forestry dispute with the Haida Nation, reinforced Canada’s constitutional “duty to consult” with First Nations on any and all decisions that affect them. You would think that would count for a lot, at least legally if not morally.
But here we are, with the Pandora’s box that is our Trans Mountain pipeline. The federal government is champing for its expansion, and the National Energy Board—its in-house “regulator” of all things relating to non-renewable energy—has twice conducted public consultation, and twice dutifully recommended in favour of expansion.
The first hearing was so flawed in its consultation and environmental assessment processes that the Federal Court of Appeal flatly overturned its recommendation last August. Justice Eleanor Dawson, who presided over the ruling, rebuked the Crown for its failure to engage in meaningful consultation, amounting to little more than note-takers of the proceedings. “The meeting notes show little or no meaningful responses…to the concerns of the Indigenous applicants,” she wrote.
That forced a hurried second round of consulting that, not surprisingly, drew considerable skepticism from First Nations participants. To no one’s surprise, the NEB announced last February that the pipeline expansion could again go ahead, adding that its “considerable benefits” justify “the likely significant adverse effects” it will someday wreak on our coastal and marine ecology.
So much for putting heads together.
What frustrates even more is the Crown’s apparent presumption that, except for First Nations people and the clusters of protesters who show up at disputes, the rest of Canada is in accord. But that’s where the Crown is seriously misguided. First Nations issues are everyone’s issues. Environmental degradation hurts everyone.
There’s been so much consultation, and so little real talk. But these are pivotal times, and an election looms. So do the summer fires. We’ll see how that all goes.
Writer Trudy Duivenvoorden Mitic was not surprised when, on June 18, the pipeline expansion was approved by the Canadian government. See Briony Penn’s column in this edition for more on the Trans Mountain pipeline issue.