If the Northern Gateway Panel declared the pipeline to be “in the public interest,” last week's Supreme Court decision has turned this finding to ash.
Tsilhqot'in not only shifts the ground from a Duty to Consult to a Requirement of Consent. It exposes processes like this one as relics of 19th century governance and forces Canadian governments to start preparing for a new era in public consultation.
When the public is worried that a big infrastructure project may be environmentally risky, review processes are supposed to provide an objective assessment of the situation and decide whether the project is in the public interest.
The Gateway Panel was such a process. The three commissioners held public hearings to allow interested parties to present their case (or make submissions), then withdrew to consider the arguments and reach conclusions.
Of course, these conclusions are supposed to be based on evidence. As the Panel's report states, “A determination in the public interest is based on findings of fact and a review of scientific and technical information.”
But is this really how the process worked? Let's look at a few of the issues the Panel would have had to consider:
- Engineering issues: Can the pipeline withstand a large earthquake?
- Security issues: How vulnerable is it to terrorist attacks?
- Environmental impact: How much harm would a spill cause to wildlife or vegetation?
- Economic benefits/losses: How many jobs will be created and how much damage might be done to tourism?
- Health risks: Will any damage be done to local water supplies in the event of a spill?
- Social change: How might the pipeline change the lifestyle in communities along its path, such as Kitimat?
- Cultural impact: What is the loss to First Nation communities whose way of life goes back thousands of years?
- Aesthetic value: What will compensate for the loss of pristine wilderness?
These questions are conspicuously diverse, ranging from the highly technical to the aesthetic. Some, such as the engineering ones, are clearly evidence-based. Others, such as those on security, economic impact and social change, are increasingly speculative, with varying amounts of evidence to support conclusions.
Finally, the questions about a way of life and pristine wilderness are not evidence-based at all. We can call them value-questions to distinguish them from the technical and more speculative ones—all of which raises serious doubts about the process.
For the Panel's conclusions to be legitimate, they must be based on a reasonably objective assessment of arguments and facts, as the Panel itself asserts. So how do commissioners assess questions about lifestyle, way of life or pristine wilderness? Is there a calculus that will decide how the erosion of a culture should be weighed against the creation of jobs?
Of course not. No such reliable method exists. Ultimately, when the Panel deliberates on such things, the commissioners will be thrown back on their own assumptions about the value of those goods. And this, in turn, will shape their views on what is in the public interest.
So although the Panel claims its conclusions are based on “findings of fact and a review of scientific and technical information,” in reality, big projects like Gateway raise all kinds of questions. Value-questions are often at the heart of the debate. Unsurprisingly, therefore, Gateway's opponents see this “evidence-based” process as highly subjective and illegitimate. What is the alternative?
In the end, there is only one way to resolve such multi-faceted issues fairly. Rather than have commissioners deliberating behind closed doors, they must be discussed in an open and transparent process that gives those with a real stake in the issues a meaningful voice in the deliberations.
To be fair, the Panel does nod in this direction by tying many of its 209 conditions for pipeline approval to further consultations with the communities that will be affected. On the other hand, it also manages to conclude that the pipeline is “in the public interest” before these consultations have taken place—even though this is exactly what is in dispute.
As for the government, it is deeply suspicious that such questions should be resolved through open dialogue with First Nations. It fears this would derail the project and instead has sought ways around dialogue. The tribunal was a key part of this plan.
That strategy is now dead. The Tsilhqot'in decision changes everything. Aboriginal communities suddenly have the power simply to say no. So if the government still wants a pipeline, it has no choice but to engage in real and meaningful dialogue.
Nor can it override this right. While the court clearly states that Aboriginal title is subject to the public interest, it has also begun to put parameters around a government's efforts to define the public interest.
As Brian Hutchinson points out, while the court offers pest and forest fire prevention as possible examples of such a “compelling interest,” it does not suggest resource extraction or pipeline construction.
The intent is clear. The court is affirming that a First Nation community's right to define its own future has priority over the government's plan to make Canada an energy superpower. Moreover, by preventing governments from trumping this right by declaring their own plans to be “in the public interest,” the court is also forcing governments to begin experimenting with new forms of public dialogue to resolve such disagreements.
This will be a huge change for our governments, but I believe a good one. They will have to learn to make dialogue work—and I believe they can. Nor will the impact be confined to Aboriginal issues.
As new processes evolve, the limitations of the old tribunal processes will become increasingly apparent. And governments' tendency to use them to engineer political decisions will become increasingly unacceptable—not only when dealing with Aboriginal communities, but for big public issues of all kinds.
As for Gateway, if the government has any hope of salvaging the pipeline, it must be ready to adopt a whole new approach to working with Aboriginal communities. Efforts to sidestep the Duty to Consult will no longer work. Now governments and businesses who want resource development must be ready to earn a community's approval.
All in all, quite a day.
Dr. Don Lenihan is an internationally recognized expert on democracy, public engagement, accountability and service delivery. Since 2009, he has been Senior Associate at Canada's Public Policy Forum in Ottawa. From October 2013 to April 2014, Don served as Chair of the Ontario Open Government Engagement Team. The views expressed here are those of the columnist alone. Don can be reached at:
[email protected] or follow him on Twitter at: @DonLenihan
