🍁 NORTH OF POLITE

By James Turtle

First Nations Correspondent — North of Polite

Canada wants to build big things again.

The federal government wants major projects approved faster. Alberta wants another route for its oil to reach global markets. And on October 1, the proposed West Coast Oil Pipeline—now known as Pacific Link—was listed as a project of national interest under the Building Canada Act.

The proposal would carry approximately one million barrels of Canadian crude oil per day to a new West Coast delivery terminal and marine facility. The final route has not yet been determined. Canada

But another Canadian obligation has not disappeared simply because the country wants to move faster.

The Crown still has a duty to consult Indigenous peoples when their Aboriginal or treaty rights may be adversely affected.

And that leaves Canada with a difficult question:

Can we build faster without turning consultation into something that happens after the important decisions have already been made?

Pacific Link may become an important test of whether Canada’s new approach can actually do two things at once:

Build faster — and consult properly.

WHAT HAS ALREADY BEEN DECIDED?

There is an important distinction to make immediately.

Pacific Link has been designated a project of national interest.

That does not mean construction has received every required federal authorization or that consultation is finished.

The October 1 Order in Council says the national-interest designation places the project within the Building Canada Act’s regulatory framework. Further regulatory assessment and consultation with Indigenous communities are still to come, including a public-hearing process conducted by the Canada Energy Regulator. Orders In Council

That’s important because much of the controversy concerns the consultation that happened before the national-interest designation.

It should not be confused with the entire consultation process for the pipeline.

THE TWO-MONTH QUESTION

The Major Projects Office began consultation with potentially affected Indigenous communities on July 3.

The original deadline for written submissions was August 26. After communities raised concerns about timing and capacity—including summer harvesting, cultural activities and the effects of wildfires—the deadline was extended to September 18.

The government says it identified and consulted more than 130 potentially affected Indigenous communities.

Between July 3 and September 18, the Major Projects Office held more than 140 meetings with representatives of more than 110 Indigenous communities and organizations.

More than 100 written submissions were received, including several after the formal deadline. Orders In Council

Those numbers matter.

This wasn’t a case in which Ottawa held a single meeting and declared consultation complete.

But something else matters just as much.

The government’s own record acknowledges problems raised by Indigenous communities.

Many communities said they did not yet have enough information to fully assess potential effects on Aboriginal and treaty rights or determine whether they supported listing the project.

The missing information included matters such as routing, engineering and design, environmental effects, marine shipping, emergency response and potential impacts on Aboriginal and treaty rights. Orders In Council

That produces an obvious question:

How do you meaningfully assess the effects of a project when some of the details needed to measure those effects haven’t been determined yet?

OTTAWA SAYS CONSULTATION ISN’T OVER

The federal government’s answer is essentially that this is an earlier stage in a longer process.

The Building Canada Act deliberately changes the sequence of federal decision-making.

Ottawa can determine that a project is in the national interest before all of the detailed engineering, environmental studies and technical assessments normally associated with later regulatory review have been completed.

The government argues that this provides early certainty while still allowing Indigenous communities to influence the subsequent development and regulatory process. Orders In Council

Cabinet concluded that the consultation conducted before the October 1 decision fulfilled Canada’s duty to consult in relation to adding the project to the national-interest list.

It also concluded that potential adverse effects on Aboriginal and treaty rights could continue to be addressed through subsequent regulatory review, consultation, mitigation and, where appropriate, accommodation before final federal authorizations are issued. Orders In Council

That distinction is crucial.

It would be inaccurate to say First Nations were given only two months to consult on the entire pipeline.

They weren’t.

But it remains entirely reasonable to ask whether the national-interest decision itself was significant enough that affected communities needed more project information and more time before that decision was made.

FIRST NATIONS ARE NOT SPEAKING WITH ONE VOICE

This is another part of the story that deserves attention.

There is no single “First Nations position” on Pacific Link.

The Assembly of First Nations has raised serious concerns about the national-interest designation process, arguing that the government risks predetermining outcomes before meaningful consultation has taken place.

Cold Lake First Nations Chief Kelsey Jacko has said his Nation was left out of discussions affecting its lands and treaty rights.

But Fort McKay First Nation Chief Raymond Powder described his experience differently.

Powder said he was both excited about the economic opportunity and concerned about environmental effects. He also described his Nation’s consultation with the federal and provincial governments as meaningful and said there had been respectful discussions. Global News

That difference matters.

First Nations are individual communities with different territories, rights, governments, economic circumstances and opinions about development.

Some may oppose the project.

Some may support it.

Some may support development while demanding changes to the route, environmental protections, economic arrangements or other accommodations.

Those positions shouldn’t be collapsed into a single Indigenous viewpoint.

CONSULTATION ISN’T THE SAME AS AGREEMENT

Consultation does not necessarily mean that every affected First Nation must ultimately support a project.

Nor can Canada satisfy its obligations simply by finding Indigenous communities that support development while disregarding those raising legitimate rights concerns.

The government’s task is more complicated.

Potentially affected rights holders must have a meaningful opportunity to understand what is being proposed, explain how their rights could be affected and have those concerns genuinely considered.

Where appropriate, accommodation may also be required.

That process can produce different outcomes for different communities.

THEN THERE’S ECONOMIC PARTICIPATION

The federal government says Pacific Link will include a “real and meaningful opportunity for Indigenous equity participation.”

Consultations over what that participation will look like are expected to continue as more project-specific information becomes available. Canada

That could create substantial economic opportunities for participating communities.

But there is an important distinction here too.

Economic partnership should not become a substitute for consultation.

A Nation should be able to consider becoming an investor without that opportunity automatically being treated as consent to every potential effect on its rights.

Likewise, a Nation raising concerns about one aspect of a project should not automatically be described as opposing economic development.

Those are different questions.

THE BIGGER TEST

This story is ultimately about more than one pipeline.

It’s about Canada’s attempt to change the way major projects are built.

For years, businesses, provincial governments, workers and others have complained that major Canadian projects can become trapped in regulatory processes that are slow, complicated and uncertain.

The Building Canada Act is intended to change that.

But Parliament did not erase Section 35 of the Constitution when it created a faster process.

And Ottawa’s own October 1 decision repeatedly acknowledges that Aboriginal and treaty rights, the Crown’s duty to consult and Canada’s commitments regarding Indigenous peoples remain part of the process. Orders In Council

So speed alone isn’t the test.

Neither is delay.

A regulatory process taking years doesn’t automatically mean Indigenous rights were respected.

And completing one quickly doesn’t automatically mean they weren’t.

The more useful question is:

Can Canada make the process faster without making consultation shallower?

JAMES’ QUESTION

Canadians don’t have to choose between two slogans:

“Build everything.”

or

“Build nothing.”

Canada can need new infrastructure while First Nations continue to possess constitutionally protected rights.

Those ideas are not mutually exclusive.

The difficult part is designing a system capable of respecting both.

Pacific Link gives Canada an opportunity to find out whether that’s possible.

Ottawa says the consultation before the national-interest designation was meaningful and fulfilled its duty regarding that particular decision.

Some First Nations say the process was too compressed and that too much important information was missing.

Other Indigenous leaders have described their consultation more positively.

Those positions are now part of the public record. Orders In Council

What happens next will matter.

If Canada can develop a major project more quickly while affected First Nations receive the information, time and genuine opportunity necessary to influence decisions affecting their rights, Pacific Link could demonstrate that faster development and meaningful consultation do not have to be opposing ideas.

If the process cannot do both, Canadians will have learned something equally important about the country’s new approach to building major projects.

That’s what we should be watching.

— James Turtle
First Nations Correspondent, North of Polite

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