Dominique Nouvet practices Indigenous law at Woodward and Company LLP, in Victoria.
The B.C. government's recently announced support for Indigenous litigants challenging the Kinder Morgan pipeline project is pleasantly surreal.
To my knowledge, there is no precedent for the Crown intervening in court to support breach-of-consultation claims. Ultimately though, this court intervention and the Kinder Morgan debacle point to the need for even bolder action, beyond the courtroom: they invite all British Columbians – Indigenous and non-Indigenous – to collaboratively re-envision how they authorize major natural resource development.
The court challenges against the Kinder Morgan approvals, while important, are simply the latest flashpoint for an underlying problem: The federal and provincial governments continue to unilaterally approve major resource development projects that profoundly affect the constitutional rights and territories of Indigenous peoples, in some cases jeopardizing their ability to maintain their culture and identity. As the Supreme Court of Canada recently observed in Clyde River (Hamlet) v. Petroleum Geo-Services Inc., "[t]rue reconciliation is rarely, if ever, achieved in courtrooms."
Government approvals of the Kinder Morgan project in the stark absence of a social licence from British Columbians signal broken decision-making processes for Indigenous and non-Indigenous citizens alike. Regardless of where things land in the Kinder Morgan litigation, the federal review process, the provincial environmental assessment process, and Crown-Aboriginal consultation processes must all be re-envisioned and redesigned.
The federal government is reviewing its environmental assessment regime, including the National Energy Board's role in that process. It is simply unacceptable to task the NEB, a body that is almost entirely proponent-funded and that specializes in pipeline construction, safety and economics, with evaluating and weighing the complex Aboriginal, social, economic and environmental impacts of major pipeline projects. Nor it is politically acceptable for Canada to force British Columbians and numerous Indigenous Nations to live with a project that conflicts with their fundamental values and priorities.
British Columbia's own environmental assessment regime is similarly flawed. Its Environmental Assessment Act provides no meaningful guidance for deciding whether major projects should proceed, and the Environmental Assessment Office has a reputation for driving projects to approval without critically assessing whether they are compatible with societal values, aspirations, or constitutionally protected Aboriginal and treaty rights.
The objections of so many British Columbians to the Kinder Morgan project (and, before that, the Northern Gateway pipeline project) reflect a profound shift in public engagement and growing awareness of the competing values at stake in major resource development decisions.
When the strongly held convictions of local communities are ignored, when Indigenous cultures are deeply affected without consent, and when environmental assessment is perceived as an expensive "rubber stamp," companies may receive their government approvals, but not the social licence that is increasingly needed before projects see the light of day.
Public support is growing for environmental assessments of major projects that rigorously assess and weigh:
- whether a project should proceed
- project sustainability
- project impacts on climate change
- major scientific uncertainties about a project’s likely impacts (for example, in the case of the Kinder Morgan project, the behaviour of petroleum products when released in the ocean, and impacts of increased tanker traffic on endangered killer whales) and whether we can confidently predict that environmental risks can and will be effectively mitigated
- the support or opposition of the communities that would be most affected by a project
- the significant, non-economic values implicated by major projects, including British Columbians’ deep appreciation of their natural environment, and their moral and legislated duty to protect vulnerable animal species (for example, killer whales, caribou, grizzly bears)
- the economic value a project will bring to the province and its citizens.
These are concerns that Indigenous peoples have been raising about natural resource development for generations. They create much common ground and, by extension, a tremendous opportunity for Indigenous and non-Indigenous citizens of this province to work together to develop strong and inclusive environmental assessment principles, institutions and processes.
British Columbia's support for Indigenous groups in the Kinder Morgan court cases is one small but powerful symbol of how the vision and stewardship advocated by Indigenous peoples is resonating with a growing majority of British Columbians. However those court cases land, the real work ahead is to thoughtfully and collaboratively chart an economic path that honours the values and constitutional rights of our province's First peoples, our shared appreciation of our spectacular natural environment, and our collective responsibility to steward development for the benefit of current and future generations.