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Federal courts dismiss TMX challenge as “posturing”

Four bands appealing the consultation process didn’t just lose in court. They were scolded by the high court for intentionally gumming up the process.

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VANCOUVER –  In a decision that came as no real surprise, the Federal Court of Appeal on Tuesday dismissed the latest attempt by four BC indigenous groups to quash the Government of Canada’s approval of the Trans Mountain Pipeline extension (TMX). This removes another barrier that had the potential to block completion of the 1,150-km, 890,000 bbl/d line between Edmonton and Burnaby.

In a December hearing, the three justices heard lawyers from the four bands—the Tseil-Waututh, Squamish, Coldwater, and Stó:lō (the collective name for seven Fraser valley villages)—argue that the federal government’s consultation with the bands had been inadequate. Government lawyers argued rather more convincingly that the consultations – which included the direct involvement of then Natural Resources Minister Amarjeet Sohi – were as adequate as necessary.

This was the second round of consultations, held at the behest of a previous (and more liberal) Federal Court of Appeal triumvirate, whose August 2018 decision quashed the government’s 2016 approval of the TMX on the grounds that the first round of consultations had not been “meaningful.” 

The court ordered a second round, and following its conclusion in June 2019, the federal cabinet (Governor in Council) approved the project for a second time. But in September the order was challenged by six Indian groups (two later dropped out) and the  December hearing date was set.

In their ruling on Tuesday, the three male septuagenarian judges, led by chief Justice Marc Noél, 71, concluded that  “there is no basis for interfering with the Governor in Council’s second authorization of the project. The judicial review applications will be dismissed.”

In their lengthy list of reasons for the dismissal, the justices applauded the federal government’s thoroughness in consulting with the bands, deemed its measures to accommodate their concerns as adequate, and chided the bands for their delaying tactics and “posturing.”

“[G]iven the time available,” reads the decision, “it was incumbent on all parties to engage in the consultation process diligently and to work toward accommodations that were responsive to the flaws identified in TWN 2018. Unfortunately, this did not always take place: much time was taken up by unnecessary delay, posturing and insisting on matters of form rather than substance.”

All four bands claimed that Canada, as owner of the Trans Canada pipeline since July 2018, did not engage in the consultation process  with “an open mind.”

The justices said that “based on the record before us, there is no evidence that the Governor General in Council’s decision was reached by reason of Canada’s ownership interest rather than the Governor in Council’s genuine belief that the project was in the public interest.”

The decision went on to address the complaints made by each of the four groups, which focused on an alleged lack of “meaningful” consultation by the government. 

Here the judges expounded on the definition of “meaningful” and its relationship to reconciliation as envisaged by the Truth and Reconciliation Commission of Canada.

Reconciliation, they wrote, “is meant to be transformative, to create conditions going forward that will prevent recurrence of harm and dysfunctionality but also to promote a constructive relationship, to create a new attitude where Indigenous peoples and all others work together to advance our joint welfare with mutual respect and understanding, always recognizing that while majorities will sometimes prevail and sometimes not, concerns must always be taken on board, considered, and rejected only after informed reflection and for good reason. 

“This is a recognition that in the end, we all must live together and get along in a free and democratic society of mutual respect.”

In criticizing the consultation process, all four bands pointed to a lack of “accommodation” of their concerns, and in most cases satisfactory accommodation seemed to amount to killing the project.

“The process of meaningful consultation can result in various forms of accommodation,” reads the decision. “But the failure to accommodate in any particular way, including by way of abandoning the project, does not necessarily mean that there has been no meaningful consultation… reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one.”

Citing case law, the court said it was clear that “although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try to veto it. Tactical behaviour aimed at ensuring that discussions fail within the time available for consultation is not consistent with reconciliation and would, if tolerated, allow for [an] effective veto right.”

The justices cited a number of instances of such delaying tactics by the four groups. 

Take for example the Squamish and Tseil-Watauth bands, the two coastal bands that, partially backed by US environmental groups, have long publicly demonstrated for the killing of TMX.

Their salient concerns are the risk of a bitumen spill from the seven tankers a week that will ply Burrard Inlet and the debilitating effect an extra tanker a day might have on the killer whales in the Strait of Georgia (through which about 100 ships a day already pass).

In its 2018 ruling, the Federal Court of Appeal had called the government’s consultation with the bands on these matters inadequate. The bands say that the subsequent consultations—which took the form of a reconsideration hearing by the National Energy Board—were also inadequate.

This hearing and subsequent technical consultations  saw the government’s experts pitted against the Indians’ experts on matters such as the rapidity of diluted bitumen dispersion in Burrard Inlet and the effect of tanker noise on orcas. The government agreed to various mitigation measures, including funding for training indigenous groups in spill response and to develop technology for quieter vessels.

The Squamish called the measures inadequate and also claimed the government withheld pertinent information from it. The judges disagreed and also accused the Squamish and Tseil-Waututh of postponing meetings and otherwise confounding the consultation process.  

“While hard bargaining on the part of Indigenous groups is permissible,” write the judges, “Tsleil-Waututh’s conduct during the re-initiated consultation process exceeded hard bargaining and interfered with Canada’s efforts to consult and accommodate. Canada’s efforts nonetheless resulted in adequate consultation and responsive accommodation measures.”

While the Court of Appeal decision removes another hurdle facing the TMX—which is already under construction in Alberta—another potential court challenge looms.

The Tseil-Waututh and Squamish applied to the Supreme Court of Canada to appeal the limitation imposed by a judge on their hearing in the Court of Appeal. They had wanted to argue that the National Energy Board’s environmental assessment process (re: whales and tankers) had been flawed, but the Appeal Court judge ruled that that issued had already been dealt with in court. We suspect the Supreme Court will refuse to hear the appeal and that the only remaining recourse for the anti-pipeline collective will be civil disobedience. 

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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Kenney, Scheer won’t back Buffalo Declaration – Wall and Barnes come out in support

Barnes, who is also a member of the Fair Deal Panel, said the Buffalo Declaration echoes what he’s been hearing at the consultations around the province.

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The Buffalo Declaration issued by four Alberta Conservative MPs caused quick public reaction soon after it was released, but while some prominent Westerners have come out in support, others have been less enthusiastic.

Alberta Premier Jason Kenney gave a tepid response when asked about his reaction to the Buffalo Declaration at a Glenbow Museum funding announcement on the morning of February 21st. In fact, the premier didn’t mention it at all when asked about it.

“Our government was elected on a mandate to fight for Alberta – that’s exactly what we’re doing,” Kenney said…It’s exactly why we’re in court challenging the federal carbon tax, challenging the ‘no more pipelines law’ – Bill C-69. It’s why we launched the Fair Deal Panel, and it’s why we are prepared to go to Albertans with a number of ideas to maximize our autonomy as a province.”

Taking a different route, UCP MLA and Fair Deal Panel member Drew Barnes said the Buffalo Declaration echoes what he’s been hearing at the consultations around the province.

“We could lose it all if we don’t get equitable representation – the fact is our voice is so often not heard”, he told the Western Standard.

“A lot of people support Alberta and what we do here and we need to get the word out that our economy, our families, and communities are hurting. When people with a platform, MPs and MLAs, talk about that, it helps,” he said.

“For those that don’t believe in Albertans having the opportunity to live in the freest and the richest province and contribute to Canada and Albertans have the opportunity to live life to the fullest – we have to push back. We’re in a situation where we have unequal representation in the house and, senate and the Supreme Court – nothing moves unless it’s pushed and it’s our job to push.”

Federal Conservative Leader Andrew Scheer issued a statement acknowledging that four of his MPs had issued the declaration, but said that he will not comment on it because there was an ongoing leadership race to replace him. Instead of addressing the declaration directly, Scheer said that his party has long advocated for democratic reform to “ensure Western Canadians have an equal voice in Canadian politics…The frustration and anger in Western Canada is very real and should not be ignored.”

Former Saskatchewan premier Brad Wall said the four MPs deserved credit.

“There needs to be national attention to and action on the abiding unfairness in the confederation toward Alberta, Saskatchewan, and the west in general,” he wrote on social media.

“You and your colleagues deserve credit for this Michelle [Rempel-Garner]. There needs to be national attention to and action on the abiding unfairness in the confederation toward Alberta, Saskatchewan and the west in general.”

Deirdre is the Senior Reporter for Western Standard.
dmaclean@westernstandardonline.com
@Mitchell_AB

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Trudeau says barricades must come down now

Saying Canadians have “run out of patience”, Justin Trudeau on Friday called for Indigenous protesters to remove their rail barricades immediately.

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Enough is enough, says Prime Minister Justin Trudeau.

Saying Canadians have “run out of patience”, Trudeau on Friday called for Indigenous protesters to remove their rail barricades against the Coastal GasLink pipeline immediately.

“We have exhausted our capacity to engage… to resolve this. The onus has shifted to the Indigenous leadership,” Trudeau told a press conference in Ottawa Friday afternoon.

“All Canadian are paying the price. Some can’t get to work, others have lost their jobs.

“Canadians have been patient. The government has been patient.

“The barricades need to come down. The injunctions must be obeyed and the law must be upheld.”

• What the Western Standard says

Trudeau noted the barricades have been up for two weeks and said his government has been in dialogue with the Indigenous groups since the start.

“Every attempt at dialogue has been made, but discussions have not been productive. We can’t have dialogue when only one party is coming to the table,” Trudeau said.

But Trudeau’s message was met with a less-than-enthusiastic response from Indigenous leaders.

At a press conference in Tyendinga, Ont. near one of the rail blockades, Wet’suwet’en and Mohawk leaders repeated calls the barriers would stay until the RCMP have completely retreated from Wet’suwet’en territory.

Wet’suwet’en leaders stood by another condition that all work on the CGL pipeline stop in their land.

• In other developments, Alberta Premier Jason Kenney said he was worried about more citizen vigilantism.

Last Thursday,  CN Rail announced it was closing down operations in eastern Canada while Via Rail shuttered its entire network because of a Mohawk rail blockade near Brockville, Ont.

Tory leader Andrew Scheer said enough is enough and it’s time for Trudeau to call in the RCMP to clear the blockades.

“Quite frankly, this is getting ridiculous. Radical activists, many of whom have no connection to theWet’suwet’en people, are holding our economy hostage. Meanwhile our prime minister has been out of the country on a vanity project to win a vote at the UN, neglecting his duties here at home,” Scheer said, referencing Trudeau’s jaunt to Africa.

“Do the right thing, Prime Minister Trudeau. We can’t allow a small number of activists to hold our economy hostage and threaten thousands of jobs. I believe it’s time for the law to be enforced. Law enforcement should enforce the law. We have court orders, court injunctions, they need to be respected.”

The protests have been growing across Canada for two weeks since the RCMP raided and tore down an Indigenous camp near Smithers.

Last Thursday, the protesters at the main camp released a new video of RCMP action at the site.

COURTESY GIDIMT’EN CHECKPOINT





RCMP officer seen at Indigenous camp near Smithers, B.C.

The pipeline has the support of all First Nations along the route, but hereditary chiefs of Wet’suwet’en Nation, through which 28% of the 670-km route passes, oppose it.

A group of unelected hereditary chiefs had set up a camp near Smithers and have kicked out Coastal GasLink workers.

Courtesy Twitter

The RCMP said they have found traps like felled trees and three stacks of tires along with flammables along the access road.

On Jan. 7, 2019, RCMP arrested 14 protesters along the B.C. logging road. 

International attention was drawn to the issue when a British newspaper reported RCMP were ready to shoot protesters when they broke up the camp. The RCMP denied the story.

On Dec. 31, the B.C. Supreme Court granted CGL an injunction against members of the Wet’suwet’en First Nation from blocking the pipeline route near Smithers, B.C.

But the situation has been further complicated after a Jan. 3 edict by the Unist’ot’en, a smaller group within the First Nation, that they intend to terminate an agreement that had granted the company access to the land.

The RCMP checkpoint had been set up at the 27-km mark of the forest service road “to mitigate safety concerns related to the hazardous items of fallen trees and tire piles with incendiary fluids along the roadway.”

The $6.6 billion pipeline, to be operated by TC Energy Corp, would transport gas from near Dawson Creek in northeast B.C. to Kitimat on the coast and supply Canada’s largest liquefied natural gas export terminal, called LNG Canada, which is under construction.

Dave Naylor is the News Editor of the Western Standard

dnaylor@westernstandardonline.com

Twitter: Nobby7694

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Kenney warns of further citizen vigilantism over rail blockades

Alberta Premier Jason Kenney said he is concerned that if police don’t start dealing with rail protesters across the country, Canadians will do so.

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Alberta Premier Jason Kenney said he is concerned that if police don’t start dealing with rail protesters across the country, Canadians will do so.

“There is concern with police not enforcing court orders – I am concerned citizens may do so,” Kenney told reporters in Calgary on Friday.

“We’ve seen elements of that already.”

Kenney was referring to an Edmonton- area blockade earlier this week. After about eight hours a group of six men in a couple of pick-up trucks arrived and dismantled the barricade in a matter of minutes.

“I’d much rather the trained and properly authorized police enforce court orders,” Kenney said.

Several courts across the country have handed down injunctions barring protesters from blocking rail lines. But so far, there haven’t been any police force that have acted on them.

The blockaders say they are in support of a B.C. Indigenous band that is protesting the Coastal GasLink pipeline being built through their land.

Kenney said he is very concerned the rule of elected Indigenous chiefs is not being followed.

He noted there have been ten elections in the last decade among the Wet’suwet’en people and every elected chief has supported the Coastal GasLink pipeline.

“I am very concerned that we not end up undermining the legitimate elected authority of First Nation leaders in a case like this,” Kenney said.

• What the Western Standard says

Last Thursday,  CN Rail announced it was closing down operations in eastern Canada while Via Rail shuttered its entire network because of a Mohawk rail blockade near Brockville, Ont.

Tory leader Andrew Scheer said enough is enough and it’s time for Trudeau to call in the RCMP to clear the blockades.

“Quite frankly, this is getting ridiculous. Radical activists, many of whom have no connection to theWet’suwet’en people, are holding our economy hostage. Meanwhile our prime minister has been out of the country on a vanity project to win a vote at the UN, neglecting his duties here at home,” Scheer said, referencing Trudeau’s jaunt to Africa.

“Do the right thing, Prime Minister Trudeau. We can’t allow a small number of activists to hold our economy hostage and threaten thousands of jobs. I believe it’s time for the law to be enforced. Law enforcement should enforce the law. We have court orders, court injunctions, they need to be respected.”

The protests have been growing across Canada for two weeks since the RCMP raided and tore down an Indigenous camp near Smithers.

Last Thursday, the protesters at the main camp released a new video of RCMP action at the site.

COURTESY GIDIMT’EN CHECKPOINT





RCMP officer seen at Indigenous camp near Smithers, B.C.

The pipeline has the support of all First Nations along the route, but hereditary chiefs of Wet’suwet’en Nation, through which 28% of the 670-km route passes, oppose it.

A group of unelected hereditary chiefs had set up a camp near Smithers and have kicked out Coastal GasLink workers.

Courtesy Twitter

The RCMP said they have found traps like felled trees and three stacks of tires along with flammables along the access road.

On Jan. 7, 2019, RCMP arrested 14 protesters along the B.C. logging road. 

International attention was drawn to the issue when a British newspaper reported RCMP were ready to shoot protesters when they broke up the camp. The RCMP denied the story.

On Dec. 31, the B.C. Supreme Court granted CGL an injunction against members of the Wet’suwet’en First Nation from blocking the pipeline route near Smithers, B.C.

But the situation has been further complicated after a Jan. 3 edict by the Unist’ot’en, a smaller group within the First Nation, that they intend to terminate an agreement that had granted the company access to the land.

The RCMP checkpoint had been set up at the 27-km mark of the forest service road “to mitigate safety concerns related to the hazardous items of fallen trees and tire piles with incendiary fluids along the roadway.”

The $6.6 billion pipeline, to be operated by TC Energy Corp, would transport gas from near Dawson Creek in northeast B.C. to Kitimat on the coast and supply Canada’s largest liquefied natural gas export terminal, called LNG Canada, which is under construction.

Dave Naylor is the News Editor of the Western Standard

dnaylor@westernstandardonline.com

Twitter: @Nobby7694

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