Why did Ottawa fail to defend its Trans Mountain process in court? Blame politics

The Trudeau government must be hoping for third-time-lucky as it prepares to head back to court with First Nations opposed to the expansion of the Trans Mountain pipeline expansion project.

The Federal Court of Appeal gave its approval this week to a handful of Indigenous communities along the route that argued the government had failed — again — to properly consult them.

While that decision might not come as a huge surprise to anyone who has been following the intense, drawn-out battle over the pipeline project and the government's legal "duty to consult" affected Indigenous communities, Ottawa's approach to this legal challenge did raise some eyebrows.

The federal attorney general presented no legal submissions or evidence to counter the claims that the consultations were inadequate.

That omission was enough to prompt the presiding judge to issue written reasons for allowing the appeal to proceed — something the court rarely does.

Evidence 'withheld'

Justice David Stratas wrote that the government and cabinet might have "strong evidence" to support the adequacy of their consultations, and good legal arguments in favour of the court deferring to cabinet's wishes.

"At this time, however, the respondents have withheld their evidence and legal submissions on these points. So the analysis cannot progress further," Stratas wrote.

So the case is heading back to court again — even though the federal cabinet has approved the project. Twice.

At this rate, the money being spent on Trans Mountain lawsuits is flowing more freely than the oil.

Brad Morse, dean of the law faculty at Thompson Rivers University in Kamloops, B.C., said the government's failure to put forward any response in a case like this "is highly unusual."

Politics might be part of the explanation, he said. Prime Minister Trudeau speaks frequently about the importance of the Crown-Indigenous relationship. Making legal arguments against allowing First Nations to pursue appeals — especially on the eve of an election campaign — could be seen as inconsistent with his words.

Indigenous communities not all on the same page

Another reason for the federal government's silence might be that the affected Indigenous communities themselves are divided over Trans Mountain.

"You have a small group of First Nations opposed, a larger group of communities who favour it and another group who want to own it," Morse said. "That makes it very difficult for this government that wants to have improved relations with all Indigenous groups."

Natural Resources Minister Amerjeet Sohi told CBC's Power and Politics that the federal government will respond at the appropriate time to the claims.

But he made it clear that his department believes it acted in good faith, and that the second round of Indigenous consultations, under the guidance of former Supreme Court of Canada justice Frank Iacobucci, were thorough and met the bar set out in a 2018 federal Court of Appeal ruling.

That earlier ruling said the initial consultations lacked a "genuine and sustained effort to pursue meaningful, two-way dialogue."

Sohi insisted the government addressed those shortcomings. He met with about 50 Indigenous groups himself. The number of staff assigned to the consultations was increased and efforts were made to accommodate some of the concerns expressed, he said.

"We responded to issues around protection of cultural sites, burial grounds, protection of water, fish and fish habitat, around issues of tanker traffic, marine animals and coastal communities," Sohi said. "And we will continue to work to ensure … that accommodations that we have offered are being implemented."

And yet, the government is heading back to court.

Chief Harvey McLeod of the Upper Nicola Band near Merritt B.C. said federal officials didn't respond to his community's call to protect 47 waterways along the route. But his band council's main concern is with the state of the existing pipeline.

"The pipe that's in the ground right now is in bad shape," he said. "We wanted that addressed and we got no response other than, 'We'll talk about it.'"

He said he wants everyone to take a step back and take the time needed to ensure all Indigenous concerns are addressed.

That seems unlikely. Justice Stratas ordered an expedited hearing schedule. And Sohi was adamant this week that the ruling will not alter construction timelines.

"This project is moving forward and will be completed by the middle of 2022," the minister said.

It's a surprisingly emphatic statement, given the government had to step in and buy the Trans Mountain pipeline for $4.5 billion last year just to give it some chance of completion.

With an election campaign about to begin, and with the potential for more injunctions to stop the construction work that is just now beginning to ramp up, Sohi's assurances might seem overly optimistic.

Then again, maybe the government really believes in third-time-lucky.