Sunday, December 10, 2023

William Watson: The high price of the Crown’s honour when building a pipeline

Four words especially caught my non-lawyer’s eye in the Federal Court of Appeal’s 87-page decision in the Trans Mountain pipeline expansion case, issued Tuesday. (You wouldn’t know it by the length of these things but we don’t actually pay judges by the page. We must pay them by the footnote: learned citations barnacle just about every one of the decision’s 255 paragraphs.)

The four striking words are: veto, deference, reconciliation and honour. You don’t see much discussion of honour these days.

“Veto” appears nine times and all nine will be reassuring to Canadians who think 21st-century law is tilted in favour of anti-everything activists. Every time the court uses “veto” it’s saying something like: “A veto over the Project (i.e., the pipeline) … forms no part of the duty to consult…” Or “Canada was under no obligation to obtain consent prior to approving the Project. That would … amount to giving Indigenous groups a veto…” Or consultation “does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists (emphasis added).”

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