The BC Supreme Court today just ruled against the Enbridge Northern Gateway pipeline proposal on the grounds that the National EnergyBoard (NEB) failed to consult with First Nations. Good call.
Admittedly, the court is a smidge tardy in this massive decision and one wonders what the decision might have been had Harper won the last election, the price of oil gone up and the people opposed remained silent but, on the face of it, it was the right decision. And being tardy is NOT really the point. The point is that the courts just defined the word ‘consult’.
Up until today, the NEB, BC Ferries, BC Hydro and all the other mindless, unfeeling, institutions we are obliged to deal with would present some fait accompli by way of a group of soul-dead bureaucrats at a public hearing and claim the public has been consulted. As members of the public, we were always disappointed in that process and we didn’t really feel as if it was the so-called consultation process we were owed. But they claimed it was so we went home like the sheep we are.
Consulting, according to the dictionary is an exchange of information and ideas. It includes getting advice. Big word. It even implies a level of agreement. And it would appear that those are the components the Supreme Court decided were missing in the Northern Gateway process.
The National Energy Board was so biased from the outset that I wouldn’t participate, personally. I wrote them and told them so. I was pretending they cared. But the real reason for not submitting a statement, for me, was that each of the panel members had long histories of working as private consultants to the oil industry. The NEB (Harper) picked industry careerists as quasi-judicial neutrals. They were not. They had been and were ‘in the pocket’ of the industry.
And that was proven by the way the hearings unfolded. The depositioners could not ‘tell their story’. They had to keep their statements to narrow parameters. Ideas were NOT shared. Questions were NOT answered. The presenters were told to keep to the script and, every time someone didn’t, the NEB panelists would either tell them to re-focus or they would tolerate the ‘tangent’ but not listen, not take notes and not record it.
In other words, there was no meaningful consultation.
First Nations (our current moral champions in Canadian society and clearly NOT sheep) took the NEB and Enbridge to court and they won. But, more importantly, they won something for all of us. They set more than a precedent with that decision, they helped define the process.
The next time BC Ferries holds a community consultation someone (me, maybe) will remind them of this Supreme Court decision. They will be reminded that meaningful consultation means more than just being spoken to. Information dissemination is NOT consultation. It means they have to listen and, more importantly, take what is heard into consideration. To my way of reading this decision, the august body of bureaucrats and hand-picked toadies will have to respond to the points raised by the public to show that they have heard that point. According to the dictionary, it may even mean a level of agreement must be reached (I think that part will be proved unenforceable eventually if not already. There is a principle in law that posits you cannot force people int an agreement. You can’t even agree to agree). Still, that means that the public will actually HAVE A SAY!
Why is that so important?
The current cause celebre is over the proposed Site C dam on the Peace River. That project has been exempted from any oversight by the BC Liberals but not from consultation with First Nations. Protest over site C can now be more effective.
Protest over anything can now be more effective.
This minor decision (in the eyes of the media) at this late date may prove to be HUGE for this province. I think it is. We’ll see.
The elephant in the room is the court’s definition of consult. Everyday examples of the meaning of consult will lead to the claim that the BC government did consult. This ruling may muddy the waters!
seek information or advice from (someone with expertise in a particular area).
“you should consult a financial advisor”
synonyms: seek advice from, ask, take counsel from, call on/upon, speak to, turn to, have recourse to; informal pick someone’s brains
“you need to consult a lawyer”
an act of consulting a professional; a consultation.
“after a consult with his attorneys, he retracted his previous statement”
Right! But clearly the ‘old’ definition will no longer prevail. No more ‘party line’. It can only get better.