David Staples Justin Trudeau bungles great opportunity to advance First Nations pipeline

The photo op we need to see during the 2019 federal election campaign is the photo op we likely won’t see.Who would be in the photo? Federal leaders Andrew Scheer, Jagmeet Singh, Elizabeth May and Justin Trudeau, each of them posing with leaders from the many dozens of First Nations across Western Canada who strongly support and want an ownership stake in the Trans Mountain Expansion pipeline.Canada’s future prosperity — and in particular the prosperity of Indigenous Canadians — has a new hope around proposed First Nations ownership in pipelines like TMX.Most crucially, if our major pipeline projects are ever going to gain approval in our courts and with the general public, Indigenous participation and part ownership is necessary.Of course, May and Singh will never appear at such a photo op. They favour the environmental agenda of privileged green voters in big cities over jobs and wealth for Indigenous people scattered in communities across western Canada.It could also be that Andrew Scheer of the Conservative would hesitate. He’s yet to be crystal clear that a First Nations ownership stake is key to the project proceeding.As for Justin Trudeau, he continues to make a mess of TMX.Yes, Trudeau said in June when his cabinet re-approved TMX that some amount of Indigenous ownership was in the cards, but Trudeau has failed to move on his promise.The Liberal strategy appears to be keep the TMX issue on the back burner for now, to treat it as a done deal and hope that it doesn’t become a major election issue that will turn off green voters in Vancouver, pushing them into the Green or NDP camps.This strategy was working, with TMX out of the news in August, but last week the Federal Court of Appeal made its latest ruling on the pipeline, deciding to proceed with a full review of complaints from six B.C. coastal First Nations over the federal government’s latest consultation process.The Liberals are now being roasted over this, mainly because the Trudeau government didn’t even show up in court to argue its own case.Many are wondering why the no-show. The most convincing answer comes from Ontario lawyer Bill Gallagher, a leading consultant on First Nations relations with major industrial projects, who has written two books on the 284 courts cases in the last five decades where First Nations have won and advanced their constitutional rights.The federal government has lost so many cases that under former Justice Minister Jody Wilson-Raybould, a new policy came in, Gallagher says. Essentially, federal justice lawyers decided to keep their powder dry, and not to fight out every single  First Nation issue in court every time.In the TMX case, the thinking might have been to not try to stop the six First Nations from having a major review of their concerns, but to proceed to that review and set out the full federal case at that time, Gallagher says.“They’re basically lightening up,” Gallagher says of the federal lawyers. “They’re not as legally constipated as they could have been. And they probably made the right call. They certainly made a justifiable call. But the political winds are such that they look bad.”The real issue, though, isn’t the court case, Gallagher says. After all, TMX’s re-approval was inevitably going to be fought out in court.Instead, the real issue is the failure to progress significantly on an Indigenous ownership stake in TMX so that this project has a chance to actually get built. As Gallagher explains the hard facts of this matter: “Unless First Nations are up there in the passenger seat with the ability to put their hand over on the wheel, depending on the issue, and weigh in, this pipeline will not be built. Not unless First Nations have a vital role … a real ownership interest.”Trudeau has bungled these negotiations, Gallagher says. “I think that’s the biggest missed opportunity on the Trans Mountain file … I am skeptical of Trudeau. I think he’s squandered six months by not working with First Nations to get this equity interest.”A window of opportunity opened but is now closed. Uncertainty sits over TMX. What happens, for example, if the Liberals are in a minority position after the election and forced into some kind of coalition with the prosperity-averse, pipeline-hating Greens or NDP?“We just excel at doing things the hard way in this country,” Gallagher says.Yes, we do that.Or, when it comes to pipelines to tidewater, not doing anything at all.Listen to our weekly business podcast, Down to Business

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