THE DEIFICATION OF PROCESS IN CANADA'S DUTY TO CONSULT: TSLEIL-WAUTUTH NATION V CANADA (ATTORNEY GENERAL).

• Author: Young, Stephen M.

1. INTRODUCTION

   In Tsleil-Waututh Nation v Canada (Attorney General), (1) nine applicants challenged Canada's approval of Trans Mountain's (2) expansion of its pipeline system, which the Canadian Federal Court of Appeal upheld. This article is primarily concerned with understanding the claims brought by the six Indigenous applicants. (3) Each alleged that Canada failed to fulfill its duty of care, (4) which the Court upheld in a unanimous opinion authored by Dawson JA. (5) In effect, the Court quashed the Trans Mountain Expansion Projects approval and remitted the matter to the Governor in Council to ensure it properly fulfilled its duty to consult with the Indigenous applicants.

   Tsleil-Waututh is worth analyzing because it continues Canada's jurisprudence on its duty to consult with impacted Aboriginal peoples. It reaffirms Gitxaala Nation v Canada's requirement that Canada must engage in "two-way dialogue" (6) when the duty requires "deep consultation" with potentially impacted Aboriginal peoples. (7) That could be a positive development for Indigenous nations in Canada, and some commentators have identified it as a "grand slam decision". (8) However, in reaffirming Gitxaala's two-way dialogue, it also magnified the importance of a complex and perplexing design/execution distinction made in Gitxaala. (9) As argued here, this distinction is perplexing because it is not clear how the Court distinguishes design from execution in a process fulfilling the duty to consult Aboriginal peoples, especially when both design and execution involve and impinge upon substance. (10)

   The primary argument in this article is that, in so far as the Court attempts to ensure a fair process for a substantive outcome by framing the disputes as process-oriented, the Court's magnification of the design/execution distinction enables it to avoid addressing any substantive complaints of the Indigenous applicants. (11) Instead, the Court's distinction contributes to a deification of process, a target of critical legal studies (CLS). They saw deification of process as problematic for the way it "perniciously seduced society with the illusion of efficacious federalism", which is, in fact, the "spectre of totalitarianism". (12) Although CLS was "killed" by its so-called inability to produce an alternative, (13) a CLS-style critique has some bite in this context because the Indigenous applicants are searching for an alternative by complaining that participating in consultations is needed to facilitate nation-to-nation partnerships. Additionally, applying a CLS-style critique to Tsleil-Waututh shows that anyone who produces an alternative from within the system is likely to reinvest in a deification of process.

   As applied here, Tsleil-Waututh demonstrates that when a court deifies process, it upholds and reproduces the importance of legal process. At a basic doctrinal level, it magnifies Gitxaala's design/execution distinction, which then provides the appearance that consultation processes facilitate substantive exchanges that will alter the outcome. While that could occur, the Court's ruling does not provide any guarantee of that. Instead, the analysis provided here reveals that the Court winnows the range of substantive topics by treating some issues as related to process design--and Canada does not require consultation about design features. (14) The Court's analysis of Canada's failure to execute the consultation process requires that it engage in meaningful two-way dialogue, which includes hearing, responding, and demonstrating a willingness to alter the Trans Mountain Expansion Project ("the Project"). Those are procedural directives that are not necessarily substantive. The Court upheld Canada's duty to consult as process-based, and the design/execution distinction within that process contributes to "the illusion of efficacious" dialogue as it potentially licenses the imposition of the Project. (15)

   Scholars have reviewed the courts' jurisprudence that gave rise to Canada's duty to consult, criticized its overt reliance on process and suggested different pathways to nation-to-nation consultation or negotiation. (16) However, a CLS-style critique is especially appropriate in this context because CLS's general target was liberal legalism. As Alan Hunt explains, liberal legalism has four central features:

   (a) the separation of law from other varieties of social control, (b) the existence of law in the form of rules which both define the proper sphere of their own application and (c) which are presented as the objective and legitimate normative mechanisms whilst other normative types are partial or subjective, and (d) yield determinant and predictable results in their application in the juridical process. (17) A CLS-style critique provides a means of critiquing rights, but, as tied to liberal legalism, a deification of process can operate as a critique of the legal structure. (18) Accordingly, at a basic level, where one acknowledges that problems arise from the court's reliance on processes, one could then suggest some variation to the existing legal process as an attempt to fix the right. Any suggested legal fix might seek to create greater nation-to-nation dialogue, consultation or even negotiation. When connected to a critique of liberal legalism, any proposed legal fix might also re-centralise and reinvest in liberal legalism. To the extent that one reasserts law as a central but separate means of social control, it may continue to allow legality to define its sphere of application with its assumed objectivity and legitimacy by determining results through the application of legal rules. Those are the central features of liberal legalism that CLS sought to clarify and acknowledge as politically, economically, and ideologically fraught.

   There is another aspect of the CLS-style critique. It argues that liberal legalism was a problematic form of legal positivism that is inherently tied to and discursively advances capitalism. (19) Several recent Supreme Court cases, like Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resources Operations), (20) Clyde River (Hamlet) v Petroleum Geo-Services Inc, (21) and Chippewas of the Thames First Nation v Enbridge Pipelines Inc (22) demonstrate the paucity of substance in Canada's duty of care. (23) However, Tsleil-Waututh best demonstrates a form of legal positivism that is inherently tied to and advances capitalism. The case temporarily halted the Expansion Project but enabled the state to redo consultation after explaining how it can comply with the duty to consult as a process, which is not wrong for the Court to have done. Before the Court published its decision, the Canadian federal government nationalized the Expansion Project as a "sound investment opportunity". (24) When Finance Minister Bill Morneau announced that the government had purchased the Project, he stated that "division" and "dispute" between provinces would not be allowed "to fester in our country" and that Canada was "a place to build big, important, transformative projects". (25) He assured investors that they "have a partner in Ottawa... One who not only respects the rule of law, but who understand the challenges you are up against and will work with you to find solutions that work for everyone." (26) Despite the controversy and divisiveness surrounding pipelines, they are unquestionably economically beneficial. The concern is that purchasing the pipeline from a private company under the guise of the rule of law for the explicit purpose of ameliorating the "fester" that is public debate--while allowing challenges in the courts, which then narrow the dispute to purely procedural terms--comes close to the version of totalitarianism that CLS scholars feared. It is also a far cry from upholding the federal government's broad commitment to advancing reconciliation. (27) Unsurprisingly, in June 2019, the government announced that it would commence pipeline construction. (28) It has since been reported that some Indigenous nations will challenge that decision. (29)

   Part II provides the background facts and law of Tsleil-Waututh. It briefly explains the Project's development, outlines the duty to consult and the criticisms arising from Canada's jurisprudence on the Crown's duty to consult. Part III outlines the four-phase consultation process that was designed and implemented in Tsleil-Waututh, and the way the Court then relies upon a distinction between design and execution, both of which have substantive and procedural effects. As argued throughout, the Court's distinction provides the illusion that the dialogue must have substantive dimensions, even though the process need not. Part IV then evaluates how Tsleil-Waututh demonstrates the deification of process and why it is so problematic in this instance.

2. THE BACKGROUND

   In December 2013, Trans Mountain applied to the National Energy Board (NEB) to expand an existing pipeline system, its Expansion Project. (30) Trans Mountain already held the necessary permits for the existing pipeline system. (31) The existing 1147-kilometre pipeline moved crude oil from Edmonton, Alberta to "terminals and refineries in the central region and lower mainland area of British Columbia" and the Puget Sound in Washington, USA. (32) The Expansion Project sought to twin the existing system with new pipeline corridors and rights-of-way to transport diluted bitumen, modify facilities and tanks, expand dock facilities at Westridge Marine Terminal, and add two new pipelines to Westridge Marine Terminal. (33) The expansion would increase the pipeline's capacity from 300,000 to 890,000 barrels per day. Given the size and scope of the Expansion Project, Trans Mountain was required to file a new application for approval by the NEB.

   In May 2016, the NEB issued findings in a report, which recommended that the Governor in Council approve Trans Mountain's Expansion Project. (34) The...