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DOLPHIN: Court hears opening arguments in endless TMX appeal

There is some hope that these judges might put an end to the seemingly interminable opposition of an increasingly smaller group of Indigenous activists.

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The seemingly endless legal exertions of several British Columbian Indian bands to block the Trans Mountain pipeline expansion (TMX) resumed before a panel of three Federal Court of Appeal judges in Vancouver this week. 

In what has become the norm for Indigenous and environmental groups opposed to oil pipelines from Alberta to the west coast—pace the Northern Gateway fiasco—a dozen groups appealed the federal government’s June 18 “re-approval” of the TMX, which it bought from Kinder Morgan in July of 2017, on the familiar grounds of “insufficient consultation.”

But in a September decision that suggested the court may be growing a little impatient with these plaints, Appeal Court Justice David Stratas rejected six of the 12 appellants, including the City of Vancouver. He gave the remaining half dozen groups—all First Nations— seven days to file their paper work. Construction of the TMX, which began in August, was allowed to continue.

Stratas limited the scope of the challenge to matters relating only to the feds’ consultation process, and not to various other issues that two of the bands – the Tseil Waututh and the Squamish nations—wanted heard, but which Stratas ruled had already been dealt with by the court. These included the bands’ claims that the National Energy Board’s environmental assessment process had been flawed. 

Those two bands, both of whom are subsidized with money originating from the anti-oilsands Tides Foundation, remain among the appeal court appellants. But at the same time they have filed an application to have Stratas’ limitation appealed in the Supreme Court of Canada, which will decide in mid-January whether to hear the case.

Since September two other of the six First Nations—the Upper Nicola Band, south of Kamloops, and the Kamloops Indian Band (aka Stk’emlupsemc te Secwepem) have dropped out of the Court of Appeal case, having reached accommodations with Trans Mountain, leaving four to challenge the Governor in Council’s (i.e. the federal cabinet’s) re-approval of the TMX. 

Represented by a platoon of gowned, taxpayer supported lawyers at this week’s three-day hearing, the four groups are:

• The Tsleil Waututh Nation (pronounced “slay-wah-tooth” and abbreviated as TWN), the Metro Vancouver band enriched by its real estate developments on urban reserve land across Burrard Inlet from the Trans Mountain terminal. It claims an insufficiency of consultation on the likelihood of a tanker spill and the effects of a spill and increased traffic on killer whales with whom the band claims a “sacred relationship.”

• The Squamish Nation, another real-estate enriched coastal band whose claimed cetacean-centric concerns are similar to those of the Tsleil Waututh.  

• The Coldwater Indian Band from near Merritt, which claims the second-round consultations, ordered by the court of appeal in its quashing of the TMX project in August 2017, failed to consider its argument for a re-routing of the pipeline to avoid crossing creeks feeding the aquifer that supplies the 300-member community with drinking water. 

• The “Stó:lō Collective,” a coalition of 11 small tribes stretching about 200 kilometres along the lower Fraser River watershed from Burrard Inlet to the Coquihalla Highway. Stó:lō claims the government failed to properly consult it on the 89 recommendations in its “Integrated Cultural Assessment for the Proposed Trans Mountain Expansion Project” that sought to mitigate the project’s impact on its fishing rights and “cultural integrity.”

On Monday, the judicial panel, consisting of three, male, septuagenarians headed by Chief Justice Marc Noel (a Harper government appointee), listened to lawyers from three of the groups (Squamish was yet to come). The general thrust of their submissions was similar: the federal government had, as in the first go-round, failed to “meaningfully” engage the bands, had rushed through the process, behaved as if the pipeline approval was a foregone conclusion, and the “Phase 3” consultations were treated as a chore to be got out of the way ASAP. (The phase three consultations followed on the on the consultations that preceded the initial cabinet approval in 2016 then those that preceded last June’s re-approval.)

The TWN lawyers claimed that the federal representatives had ignored evidence from the band’s experts that put the likelihood of tanker spill as high as 75%, maintained that diluted bitumen could sink and be irretrievable in one-to-two days, and that the noise from increased tanker traffic out of Burrard inlet and into the Strait of Georgia could threaten the survival of the orcas that are already “on the brink of extinction.” (Never mind the 100 or more ships that ply those lanes daily already.)

Coldwater’s lawyers argued that the government’s representatives had given the band too little time to discuss the findings from their hired hydro-geological engineer that recommended alternative routes for the pipe that avoided crossing the creeks. (Never mind the fact that the existing Trans Mountain line has crossed creeks in their territory for 65 years without incident.)

And the lawyer for the Stó:lō complained that the feds spent too little time on the consultations (January to May) after wasting too much time preparing (August to December) and failed to “adequately address” the bands 89 recommendations.

Unlike the previous federal court panels—such as those that killed the Northern Gateway and quashed the TMX in 2017—this triumvirate of judges appears devoid of any who might be described as activist. All three have backgrounds in corporate litigation or tax law and none of them hail from Burnaby—site of the controversial TMX terminal and home of Justice Eleanor Dawson, who wrote the 2017 TMX decision quashing the project, and co-wrote the Northern Gateway killer in September 2016.

Thus, for Alberta and Saskatchewan – both of whom are represented as interveners in this hearing — there is some hope that these judges might put an end to the seemingly interminable opposition of an increasingly smaller group of Indigenous activists.

Ric Dolphin is the Alberta Political Editor of the Western Standard. He has had a long career in journalism with Maclean’s, the Globe and Mail, Edmonton Journal, Calgary Herald, Alberta Report, and the original Western Standard. He was previously Publisher and Chief Editor of Insight into Government. rdolphin@westernstandardonline.com

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Justice Centre sues province of Alberta over COVID restrictions

The JCCF is suing on behalf of two Alberta churches and two individuals.

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The Justice Centre for Constitutional Freedoms (JCCF) has filed a court challenge against the Alberta UCP government’s health regulations, saying they violate ACharter freedoms.

The JCCF is suing on behalf of two Alberta churches and two individuals.

The Alberta government first declared a state of public health emergency in Alberta on March 17.

“Under the guise of ‘two weeks to flatten the curve,’ the resulting lockdown devastated small businesses and has led to large-scale societal harm in the form of increased unemployment and poverty, deteriorating mental and physical health, drug overdoses, cancelled surgeries, the loss of personal liberty and even death,” said the JCFF in a Saturday release.

“On November 24, the Alberta government again declared a state of public health emergency, imposing a ‘second wave’ of lockdown harms and authoritarian restrictions on the ability of Albertans to travel, conduct business, visit family and friends, obtain necessities, peacefully assemble, manifest their religious beliefs, and breathe freely.”

Currently in Alberta, no gathering around allowed in houses, outdoor gatherings must have no more than 10 participants and only members of the same household are allowed to dine in restaurants together. Pubs must also stop booze service at 10 p.m. Weddings and funerals are limited to 10 people.

As part of the court challenge the Justice Centre will argue the orders violate multiple Charter-protected rights, such as the right to peacefully assemble, the right to visit friends and family, the right to freely practice religious beliefs, the right to travel and the right to conduct business and earn a living.

The JCCF will also argue that these constitutional rights violations are not justified because lockdowns cause far more harm than whatever harm from COVID-19 lockdown measures may prevent.  

“In a free society, the government respects citizens as they exercise their freedom and responsibility to respond to a perceived crisis as they deem best for themselves and their loved ones. Arbitrary and authoritarian control, based on fearmongering by the government, only ever exasperates the problems facing society, as we have seen for the last nine months,” said JCCF lawyer James Kitchen.

“Politicians have not put forward any persuasive evidence that lockdowns have saved lives, but there is no question that lockdowns have caused grave harm to millions of Canadians suffering unemployment, poverty, cancelled surgeries, suicides, isolation and the loss of their liberty.

“The people of Alberta have suffered under the oppression of a medical dictatorship for long enough. The soul-destroying lockdowns have wrought havoc. It’s time for Albertans to get their freedom back.”

At a Calgary freedom rally on Saturday, JCCF head John Carpay said the group is seeking an immediate injunction to stop the orders followed by a permanent one.

Carpay told the Western Standard in an interview similar lawsuits will be filed against the governments of BC, Saskatchewan, Manitoba and Ontario before Christmas.

Dave Naylor is the News Editor of the Western Standard
dnaylor@westernstandardonline.com
TWITTER: Twitter.com/nobby7694

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‘WOE CANADA’: Canucks fire anthem singer for anti-mask support

“I sing ‘O Canada’ as a sign of unity and strength for all Canadians. The true north strong and free,” Mark Donnelly said.

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The Vancouver Canucks have fired their famed anthem singer for being set to perform “O Canada” at an anti-mask rally Saturday.

Mark Donnelly said he will sing ‘O Canada’ at the B.C. Christmas Freedom Rally 2020 at the Vancouver Art Gallery, protesting COVID-19 restrictions. 

“I sing ‘O Canada’ as a sign of unity and strength for all Canadians. The true north strong and free,” he told Postmedia.

Shortly after the Vancouver Sun published its story, Vancouver Canucks owner Franceso Aquilini tweeted: “Hey @VancouverSun change the headline to ‘Former Canucks anthem singer.’ #wearamask.”

The team then issued a statement confirming the firing.

Tweet of Vancouver Canucks’ owner

“Mark Donnelly is acting independently and we hope the public understands he is not representing the Vancouver Canucks,” the statement said.

“We encourage everyone to wear a mask and to follow the provincial health orders.”

BC residents are stay-at-home orders and a mask mandate. People have been told to avoid social gatherings of all kinds.

The singer has achieved world-wide fame with his booming voice and getting the fans to sing along.

He drew attention of a different sort when he took a tumble over a red carpet on the ice in a 2014 junior game – he got up and continued to perform the anthem while skating.

Dave Naylor is the News Editor of the Western Standard
dnaylor@westernstandardonline.com
TWITTER: Twitter.com/nobby7694

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Kenney hits out against anti-mask protesters

Kenney has been under fire for not condemning the 500 protesters who showed up in Calgary to protest mandatory mask regulations. Rallies were also held in Red Deer and Edmonton.

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Alberta Premier Jason Kenney has lashed out at protesters who refuse to wear masks – telling them to visit his friend in ICU if they think COVID-19 is a hoax.

Kenney has been under fire for not condemning the 500 protesters who showed up in Calgary last weekend to protest mandatory mask regulations. Rallies were also held in Red Deer and Edmonton.

“If you think this is a hoax, talk to my friend in the ICU, fighting for his life,” said Kenney during a live Facebook stream Thursday night.

“If you’re thinking of going to an anti-mask rally this weekend, how about instead send me an email, call me all the names you want, send me a letter, organize an online rally.”

Another rally is planned for Saturday in Calgary. The province has currently outlawed public gatherings of more than 10 people.

If you refuse to wear a mask, Kenney said: “Don’t go where you have to wear a mask.”

On Thursday, Alberta announced a new record daily figure for new coronavirus cases at 1,854. There were also an additional 14 deaths reported.

Alberta has had 63,023 cases of COVID-19 resulting in 575 deaths.

The province currently has the most active cases and second highest hospitalization rate of any Canadian province.

Dave Naylor is the News Editor of the Western Standard
dnaylor@westernstandardonline.com
TWITTER: Twitter.com/nobby7694

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