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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 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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Edmonton server glassed after mask dispute with female customer

“I’m going to have a helluva scar on my face – and it all started over a stupid mask” says Erin Shaw

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An Edmonton pub server was glassed in the face after asking a female customer to put on a facemask.

Erin Shaw, a server at the Crown & Anchor Pub & Grill needed 14 stitches to close facial wounds after the Saturday attack.

“I’m going to have a helluva scar on my face,” Shaw told CTV. “And it all started over a stupid mask.”

The drama began after the attacker was asked to put on a mask as she walked around the pub visiting. She finally agreed and sat back down.

Tensions escalated when the woman tried to order booze after the province’s 10 p.m. cut-off.

Another customer then openly questioned how a person could not know the mask mandatory mask regulations. Shaw said the woman went and begin yelling at that customer.

“She got into a regular’s face, calling her the b-word and the c-word and all this and saying how she’s a young Black woman with rights.”

Shaw intervened and a verbal exchange ensued during which the female allegedly accused Shaw of being racist.

“No one brought up race but her.”

Later on surveillance camera footage at the family-owned pub shows Shaw motioning for the woman to leave. The two then approach each other and the fight is on.

“She stood on her tippy toes and got right in my face and I pushed her back and I said, ‘Please do not touch me. You need to leave. Have a good night. You are not welcome,’” Shaw told CTV.

“But she came up and went right for my throat. I said, ‘Do not effing touch me,’ pushed her back into the corner and said, ‘You need to leave.’”

It was then the woman grabbed a glass and smashed it into Shaw’s face. The server was then able to take the woman to the ground.

“I didn’t notice until after she got up and ran out that I was bleeding,” said Shaw.

“I wanted people to know this is happening and I wanted the government to take note of it and make sure that the workers who are working are safe.”

“I’ve had people saying my guardian angels were there. She didn’t break my nose, she didn’t give me a concussion, and she didn’t hurt my eye.”

But Shaw added she is worried about continually trying to help enforce provincial health restrictions.

“If the government wants me to keep policing people still and doing this, then they’re going to need to start paying me.” said Shaw.

Edmonton police are investigating the attack.

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

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Violent Calgary killer on the run

Louis Bear now has more than 80 criminal convictions.

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Calgary police are warning that a violent killer – who was once shot by city police – is on the run.

On Wednesday, Louis Henry Bear, 42, failed to return to his approved halfway house in Calgary, said the Calgary Police Service in a release. Police added Bear’s current whereabouts are unknown, however, it is believed he may still be in the Calgary area.

Bear was previously convicted in the hit-and run deaths of Grant Liu, 26, and Brian Suh, 29, both of Calgary. The two men were standing beside parked cars outside the Whiskey nightclub on August 4, 2007, when Bear ran into them with a stolen vehicle.

He was sentenced to four years in prison, but because of time already served, he was released immediately.

In September of 2010, Calgary police shot Bear twice in the northeast community of Bridgeland. In that incident, he tried to mow several police officers down with his vehical. Police fired, stopping him. Bear survived the shooting.

He served three-and-a-half years in prison for that crime.

In 2018, Bear was put on statutory release even though the Parole Board of Canada said his “risk for violent and general reoffending is assessed as very high.” The parole board called Bear “reckless” and said he has “a pattern of escalation” with “risk-taking” fantasies, Global reported at the time.

The board said he has “historically viewed police and authorities as the ‘enemy,’ therefore justifying the use of violence.”

He now has more than 80 criminal convictions.

Bear is 5-ft.- 5ins., 170 lbs., with black hair and brown eyes. If spotted, citizens are asked not to approach Bear and to call the police immediately. Anyone with information about his whereabouts is asked to contact police by calling the non-emergency number at 403-266-1234.

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

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