The Deification of Process in Canada’s Duty to Consult: Tsleil-Waututh Nation v Canada (Attorney General)

Abstract

This article considers the limitations in Canada’s duty to consult with Aboriginal peoples as recently articulated in Tsleil-Waututh Nation v Canada (Attorney General). There, six Indigenous applicants challenged Canada’s approval of Trans Mountains’ pipeline expansion project. In a review of that case, this article argues that the Court magnifies a previously established distinction between procedural design and procedural execution, which contributes to a deification of process. This deification of process is problematic, at a basic level, because it enables the Court to winnow the range of substantive topics that requires First Nations consultation by treating them as process ‘design’ features that Canada has discretion over. At the same time, the Court requires Canada to alter its ‘execution’ of the consultation processes to ensure meaningful two-way dialogue, which has the possibility, but not a guarantee, of substantive alterations. By ensuring that there is the possibility of substantive alterations, the Court’s deification of process in its articulation of Canada’s duty to consult provides the illusion that it facilitates substantive accommodations as it virtually guarantees project construction. More problematically, the Court’s deification of provides the illusion of efficacious federalism that advances a form of legal positivism that eclipses important political-economic concerns.