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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.




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


Barnes blasts own government over proposed EMS dispatch changes

This is just the latest run-in Drew Barnes has had with Premier Jason Kenney and his government.




Rebel UCP MLA Drew Barnes is voicing concern with another of his government’s moves – to centralize EMS dispatch across the province.

“The best way to get the safest service is to keep it local, not to centralize,” said Barnes, a former Wildrose health critic and current UCP MLA for Cypress-Medicine Hat.

When Barnes was in Opposition, he also blasted NDP moves to centralize the service.

The move would see all calls for EMS handled by Alberta Health Services (AHS) dispatchers in Edmonton, Calgary and Peace River.

“In terms of cost effectiveness, centralization never saves money,” said Barnes in an interview with the Western Standard.

Alberta Health has said the move should save about $6 million.

“Another of the problems is that if you’re as small rural service, sometimes your ambulances get pulled in by the big cities when it’s busy,” said Barnes.

“Rural Albertans will suffer. A lot of local knowledge in terms of addresses and areas will be lost.”

Barnes said he has seen nothing from the health minister or members of the cabinet that shows any benefits of the move.

Barnes is the second in the UCP caucus to be skeptical of centralization.

Tany Yao, the UCP MLA for Fort McMurray-Wood Buffalo, told the Fort McMurray Today he had a “mixed opinion” on the topic.

“In particular, our region is unique in that it’s so isolated and for that reason alone I think we can manage it,” said Yao, who is also a former firefighter and paramedic with the Fort McMurray Fire Department. 

“It’s a difficult one, but it’s one that I prefer stay within our local community.”

Calgary Mayor Naheed Nenshi and other Alberta mayors have also voiced concerns about the move.

This is just the latest run-in Barnes has had with Premier Jason Kenney and his government.

One came on the heels of a dissenting report from Barnes, who was a member of the premier’s Fair Deal Panel. That dissenting report included calling for an independence vote if Alberta was unable to secure a fair deal within confederation, prompting the NDP to demand that Barnes be thrown out of the UCP Caucus.

Dave Naylor is the News Editor of the Western Standard



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Seattle’s police chief resigns after BLM rioting, cuts to the force

Seattle has been the scene of weeks of BLM rioting following the death of George Floyd at the hands of a white police officer in Minneapolis.




In a shocking move, Seattle’s police chief has resigned after the city slashed her salary and defunded other parts of the department.

Seattle has been the scene of weeks of Black Lives Matter rioting following the death of George Floyd at the hands of a white police officer in Minneapolis.

Anarchists also set up their own autonomous zone for several weeks before it was taken back by police.

Chief Carmen Best, Seattle’s first black, female chief, even had her home surrounded by BLM protestors.

“This was a difficult decision for me, but when it’s time, it’s time,” Best wrote in an email to her 1,400 officers, hours after the Seattle City Council voted to cut SPD’s budget by $3 million, including 100 sworn officers, the SWAT team, Navigation team, and her own salary.

“I am confident the department will make it through these difficult times. You truly are the best police department in the country, and please trust me when I say, the vast majority of people in Seattle support you and appreciate you.”

Mayor Jenny Durkan who wrote to SPD staff members in an email late Monday night said: “While I understand the Chief’s reasons, I accepted her decision with a very heavy heart.”

In her 28-year career, Best rose through the ranks from a patrol officer to sergeant, lieutenant, captain, and deputy chief.

Best said it was not her decision to have officers flee the East Precinct in rioting in June, when the “Capitol Hill Autonomous Zone” took over several blocks surrounding the building for weeks.

After two people – including a 16-year-old boy – were shot and killed around the Capital Hill Autonomous Zone – police moved in on Canada Day and cleared up the area.

CHAZ was just 24 hours a day of protesting, music, dancing and communing without a cop in sight. They quickly run out of food, putting out a plea for “vegan meat alternatives” and other soy-based food donations.

At the heart of the CHAZ is a Seattle police precinct, abandoned by officers and now being used by gun-tooting warlords who have established themselves as the new keepers of law and order.

They had a list of demands, including the “abolition” of the Seattle Police Department and its attached court system, free college for all people in the state, as well as “the abolition of imprisonment, generally speaking, but especially the abolition of both youth prisons and privately-owned, for-profit prisons.”

The streets were apparently controlled by a hip hop artist-turned-warlord by the name of Raz Simone, who has established an armed private police force that does not hesitate to dole out beatings to communal scofflaws.

U.S President Donald Trump and Durkan engaged in a war of words over the Zone.

“Take back your city NOW. If you don’t do it, I will,” Trump warned Durkan and Washington state governor Jay Inslee – both Democrats – in a tweet, calling the protesters “domestic terrorists” who have taken over Seattle.

“This is not a game. These ugly Anarchists must be stooped (sic) IMMEDIATELY. MOVE FAST,” he said in another tweet.

Durkan replied, telling Trump to “go back to his bunker” a reference to when Trump sheltered in the White House bunker after D.C protests and riots got too close.

Dave Naylor is the News Editor of the Western Standard



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Popular Calgary mural to be painted over by new BLM one

A mural called Giving Wings to the Dream, done in 1995, has graced the outside of the downtown CUPS building.




One of the most popular pieces of public art in Calgary for the last 25 year is about to be covered up by a new Black Lives Matter mural.

A mural called Giving Wings to the Dream, done by Calgary artist Doug Driediger in 1995, has graced the outside of the downtown Calgary Urban Project Society (CUPS) building.

But after city council approved more than $120,000 for four BLM murals in Calgary, Driediger’s mural will be painted over.

Calgary Arts Development has set aside a budget of $20,000 for the first mural.

“(I have) an unease over the idea that something that’s valid and vital would be covered by another artist’s work,” Driediger told Global News.

“Surely there should be some professional respect for work that exists, so that just leaves me a little concerned.”

Driediger said he supports creating Black Lives Matter murals, but added there are plenty of other sites that could be used.

 “I cautioned the organizers, you know, you might get a bit of backlash by removing something that is so well-liked, even with an excellent alternative going up there,” he said.

The mural measuring nine metres feet in height by 41 metres in width is seen by an estimated 30,000 to 50,000 Calgarians per day due to its location opposite the Centre Street LRT station.

But a Black community activist said the new mural would have widespread benefits.

“It’s a great effort by the city and a great step toward showing representation of the variety of Calgarians who live in the city,” activist Daudi Kawooya told Global.

“When you look at Calgary murals, not so many visible ethnic groups have a chance to identify with themselves, so once they start seeing themselves, the next question is going to be can they see themselves in leadership positions, can they see themselves in the local office, which is a great way to start conversations and it’s very important.”

The CDA wants the murals done by the end of October. Artists have until Aug. 17 to submit their proposals.

Their ad states: “Candidates must be representative of Black, Indigenous, and racialized communities. Two Spirit, Indigiqueer, and Black LGBTQQIP2SA+ artists will be given priority for the Phase I mural. No mural painting experience is necessary to apply—we will work with artists of any experience level to achieve their design.”

CDA has been contacting for comment but haven’t responded yet.


Dave Naylor is the News Editor of the Western Standard



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