[Oling_Roachinen]

Originally Posted by DiracSpike

I don't think it's a "Liberal conspiracy", and I don't care who appointed them this isn't the US. I think those judges made a decision based on either not liking pipelines, O&G, or naively thinking that bowing to one tribe's concerns while ignoring the vast majority who want the project was some kind of reconciliation attempt. You had widespread shock and confusion at that ruling.

Or, and I know this is going to sound crazy but bear with me. The unanimous decision by three federal court of appeal judges who spent hours upon hours upon hours who drafted a decision full of pages upon pages upon pages about how the NEB and federal bodies didn't do their due diligence in consulting about the project and defining the project scope right, maybe, just maybe, thought that the NEB and federal bodies didn't do their due diligence in consulting about the project and defining the project scope right.

It's crazy, I get it.

"Hey did you guys assess the risk to the coast and species near the coast due to the project?"
"No."
"Well do that"

OH MY GOD THEY HATE PIPELINES.

https://decisions.fca-caf.gc.ca/fca-...#_Introduction

It's all here, give it a read.

[765] This exclusion of Project-related shipping from the Project’s definition permitted the Board to conclude that section 79 of the Species at Risk Act did not apply to its consideration of the effects of Project-related shipping. Having concluded that section 79 did not apply, the Board was then able to conclude that, notwithstanding its conclusion that the operation of Project-related vessels is likely to result in significant adverse effects to the Southern resident killer whale, the Project was not likely to cause significant adverse environmental effects.

[766] This finding—that the Project was not likely to cause significant adverse environmental effects—was central to its report. The unjustified failure to assess the effects of Project-related shipping under the Canadian Environmental Assessment Act, 2012 and the resulting flawed conclusion about the environmental effects of the Project was critical to the decision of the Governor in Council. With such a flawed report before it, the Governor in Council could not legally make the kind of assessment of the Project’s environmental effects and the public interest that the legislation requires.

...

[772] As mentioned above, the concerns of the Indigenous applicants, communicated to Canada, are specific and focussed. This means that the dialogue Canada must engage in can also be specific and focussed. This may serve to make the corrected consultation process brief and efficient while ensuring it is meaningful. The end result may be a short delay, but, through possible accommodation the corrected consultation may further the objective of reconciliation with Indigenous peoples.

Take the time to read it instead of jumping to conclusions.

It has specifics.

"[728] Throughout the consultation process, Upper Nicola raised the issue of the Project’s impact on Upper Nicola’s asserted title and rights. The issue was raised at the consultation meetings of March 31, 2016, and May 3, 2016, but no meaningful dialogue took place. Canada’s representatives advised at the March meeting that until the Board released its report Canada did not know how the Project could impact the environment and Upper Nicola’s interests and so could not “yet extrapolate to how those changes could impact [Upper Nicola’s] Aboriginal rights and title interests.”

[729] The issue was raised again, after the release of the Board’s report, at the consultation meeting of September 22, 2016. Upper Nicola expressed its disagreement with Canada’s assertion in the first draft of the Crown Consultation Report that potential impacts on its title claim for the pipeline right-of-way included temporary impacts related to construction, and longer-term impacts associated with Project operation. In Upper Nicola’s view, construction did not have a temporary impact on its claim to title. Upper Nicola also stated that Canada had examined the Project’s impact on title without considering impacts on governance and management, and concerns related to title, such as land and water issues. The meeting notes do not record any response to these concerns.

Upper Nicola was asking how they would be affected. The response was a resounding "We don't know." Great consultation, certainly meaningful.

The NEBs own meeting notes show they did not respond to concerns. That's not consultation.

[731] On November 18, 2016, Upper Nicola wrote to the Crown consultation lead to highlight its key, ongoing concerns with the Project and the consultation process. With respect to title, Upper Nicola wrote:

There were areas which the Crown has determined that we have a strong prima facie claim to Aboriginal title and rights. The Crown must therefore acknowledge the significant impacts and infringements of the Project to Upper Nicola/Syilx Title and Rights, including the incidents of Aboriginal title which include: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to proactively use and manage the land and adequately accommodate these impacts, concerns and infringements. This has not yet been done.


[732] Canada and the British Columbia Environmental Assessment Office wrote to Upper Nicola on November 28, 2016, the day before the Project was approved, to respond to the issues raised by Upper Nicola. The only reference to Upper Nicola’s asserted title is this brief reference:

Impacts and Mitigation: In response to comments received, the Crown has reviewed its analysis and discussion in the Consultation and Accommodation Report on the direct and indirect impacts of the Project on Syilx (Okanagan) Nation’s rights and other interests. In addition, Upper Nicola identified that the study titled “Upper Nicola Band Traditional Use and Occupancy Study for the Kingsvale Transmission Line in Support of the Trans Mountain Expansion Project” (Kingsvale TUOS) had not been specifically referenced in the Syilx (Okanagan) Nation appendix. Upper Nicola resent the Kingsvale TUOS to the Crown on Friday, November 18 and in response to this information, the Crown reviewed the Kingsvale TUOS, summarized the study’s findings in Syilx (Okanagan) Nation’s appendix, and considered how this information changes the expected impacts of the Project on Syilx (Okanagan) Nation’s Aboriginal rights and title. As a result, conclusions were revised upward for Project impacts on Syilx (Okanagan) Nation’s freshwater fishing activities, other traditional and cultural activities, as well as potential impacts on Aboriginal title.

[733] No response was made to the request to acknowledge the Project’s impacts and infringement of Upper Nicola’s asserted title and rights.

[735] Missing is any explanation as to why moderate impacts to title required no accommodation beyond the environmental mitigation measures recommended by the Board—mitigation measures that were generic and not specific to Upper Nicola.

[736] Throughout Phase III, Upper Nicola had proposed numerous potential mitigation measures and had requested accommodation related to stewardship, use and governance of the water. No response was given as to why Canada rejected this request. This was not meaningful, two-way dialogue or reasonable consultation.

I know it's easy to think "They don't want the pipeline and are asserting their authority to prevent it" but these guys were actively trying to figure out what was happening, what the impact would be and what their rights were. And Canada did not bother to give them responses in some cases. It's unconstitutional.

[739] The meeting notes reflect that at the first meeting on August 3, 2016, SSN also raised as accommodation or mitigation measures that: the Project conditions be more specific with respect to safety and emergency preparedness response, warning notifications to communities and opportunities for training; and, that there be provision for both a spillage fee and a revenue tax imposed on the proponent for the benefit of SSN. The meeting notes do not reflect any dialogue or response from Canada to these proposals.

Here the SSN, in this specific instance, just wanted to make sure the project was safe. Not denied, they just wanted to make sure they would be prepared in the case of an emergency. They didn't get a response back.

[685] During the Board’s Information Request process, the Stó:lō pressed Trans Mountain to respond to their 89 recommendations but Trans Mountain did not provide a substantive response. Instead, Trans Mountain provided a general commitment to work with Stó:lō to develop a mutually-acceptable plan for implementation.

[686] The Board did not adopt any of the specific 89 recommendations made by the Stó:lō in its terms and conditions.
...
[711] Leaving aside the point that the letter was sent the day before the Project was approved, none of this is responsive, meaningful, two-way dialogue that the Supreme Court requires as part of the fulfillment of the duty to consult.

[712] Nor is any meaningful response provided in the Stó:lō appendix to the Crown Consultation Report. This is illustrated by the following two examples. First, while the appendix recites that the Stó:lō Collective recommended 89 actions that would assist Trans Mountain to avoid or mitigate adverse effects on their Aboriginal Interests there is no discussion or indication that Canada seriously considered implementing any of the 89 recommended actions, and no explanation as to why Canada did not consider implementing any Stó:lō specific recommendation as an accommodation or mitigation measure. Second, while the appendix acknowledges that the Stó:lō provided examples of Traditional Ecological Knowledge which they felt the proponent and the Board ignored in the Project design, environmental assessment and mitigation planning, no analysis or response to the concern is given.

Again, notice that Stó:lō wasn't asking for the project to be denied. They had 89 recommendations they felt necessary to implement to mitigate cultural and ecological important issues, and what did Canada do? Nothing. Not an acknowledgement, not an understanding that they have other mitigation techniques in place, not force Trans Mountain to go through the recommendation and respond appropriately to each one, just nothing.

It's what the First Nations had said. They had people at meetings, they had people taking notes, but they had no consultation. No two-way dialogue, no understanding that their concerns were heard and accounted for. In some cases throwing them a bone was too much.

There's a grey line. What is "meaningful consultation" when a First Nation wants no part? That's a tricky subject, absolutely. But what happens when they do respond, when they do provide concerns and mitigation techniques and get nothing back? How is that meaningful. It's against their rights. The Federal Court of Appeals wasn't against pipeline, their hands were tied. Federally we dun goofed. All they asked was for them to go back and redo phase three of the consultation. Reasonable given the stuff in the decision if you took the time to read it and appreciate the view from the First Nations, at least some of them.

They didn't say cave in, give the First Nations what they want and stop the pipeline. They more or less just said, respond to their concerns. Explain why and what. Make sure they are heard. Trans Mountain and/or Canada could have given a point-by-point break down of the 89 recommendations of Stó:lō and agreed, disagreed, or come up with some type of compromise for each one. Heck, they could have just gone through each 89 and said why they wouldn't be needed. But they didn't. That's on them, not the First Nations.