After the Federal Court of Appeal postponed expansion of the Trans Mountain pipeline, newspaper publisher Postmedia, financial partner of the petroleum industry, whined that “eco-fanaticism, regional favouritism and amateur economics” interfered with production of ever more bitumen.
Global News quoted the former CEO of the Alberta Petroleum Marketing Commission, “It’s a real sad day for Alberta and for Canada…”
Friend of the Fraser Institute broadcaster Charles Adler tweeted “No consultation = canard”. He believes the Federal Court of Appeal is treating Albertans as “the bastard children of Confederation”.
Fossil fuel promoters had either not read the FCA judgment, or reject it for their own reasons. Many of these people applauded when a court jailed opponents of Trans Mountain expansion but judge the courts wrong when they disagree with a decision.
Read the following excerpts and then decide whether corporate media was reporting honestly or trying to further interests of their financial partners. Then, ask if taxpayers should subsidize media that serves corporate interests rather than the common good.
 …Canada’s execution of Phase III of the consultation process was unacceptably flawed and fell short of the standard prescribed by the jurisprudence of the Supreme Court. As such, the consultation process fell short of the required mark for reasonable consultation.
 To summarize my reasons for this conclusion, Canada was required to do more than receive and understand the concerns of the Indigenous applicants. Canada was required to engage in a considered, meaningful two-way dialogue. Canada’s ability to do so was constrained by the manner in which its representatives on the Crown consultation team implemented their mandate. For the most part, Canada’s representatives limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers.
 On the whole, the record does not disclose responsive, considered and meaningful dialogue coming back from Canada in response to the concerns expressed by the Indigenous applicants. While there are some examples of responsiveness to concerns, these limited examples are not sufficient to overcome the overall lack of response. The Supreme Court’s jurisprudence repeatedly emphasizes that dialogue must take place and must be a two-way exchange. The Crown is required to do more than to receive and document concerns and complaints. As this Court wrote in Gitxaala, at paragraph 265, speaking of the limited mandate of Canada’s representatives: When the role of Canada’s representatives is seen in this light, it is of no surprise that a number of concerns raised by Aboriginal groups— in our view, concerns very central to their legitimate interests—were left unconsidered and undiscussed. This fell well short of the conduct necessary to meet the duty to consult
 Further, Phase III was to focus on two questions: outstanding concerns about Project-related impacts and any required incremental accommodation measures. Canada’s ability to consult and dialogue on these issues was constrained by two further limitations: first, Canada’s unwillingness to depart from the Board’s findings and recommended conditions so as to genuinely understand the concerns of the Indigenous applicants and then consider and respond to those concerns in a genuine and adequate way; second, Canada’s erroneous view that it was unable to impose additional conditions on Trans Mountain.
 Together these three factors led to a consultation process that fell short of the mark and was, as a result, unreasonable. Canada then exacerbated the situation by its late disclosure of its view that the Project did not have a high level of impact on the established and asserted rights of the Indigenous applicants—a disclosure made two weeks before they were required to submit their final response to the consultation process and less than a month before the Governor in Council approved the Project…
 However, as the above review shows, missing was a genuine and sustained effort to pursue meaningful, two-way dialogue. Very few responses were provided by Canada’s representatives in the consultation meetings. When a response was provided it was brief, and did not further two-way dialogue. Too often the response was that the consultation team would put the concerns before the decision-makers for consideration.
 Where responses were provided in writing, either in letters or in the Crown Consultation Report or its appendices, the responses were generic. There was no indication that serious consideration was given to whether any of the Board’s findings were unreasonable or wrong. Nor was there any indication that serious consideration was given to amending or supplementing the Board’s recommended conditions.
 Canada acknowledged it owed a duty of deep consultation to each Indigenous applicant. More was required of Canada.
Categories: oil and gas