In PEC, the Blanding’s Turtle Killed the White Pines Windfarm. Now It’s Back in the News

The Blanding’s turtle (a threatened species) was the excuse used by the Ford government to kill the White Pines Windfarm. Long time landowners said they had never seen a Blanding’s Turtle on the proposed White Pines Windfarm site. Flat and dry, the habitat  simply didn’t provide  a habitat for the turtle. But, of course, that didn’t stop Todd Smith and Doug Ford from axing the windfarm proposal. Look at the habitat that DOES support Blanding’s turtles in the article bel ow.

Northern Ontario’s turtle tussle pits scientists against quarry builders, with a threatened species caught in the middle

When ecologists found a haven for Blanding’s turtles on a patch of Crown land, they waded into a conflict that is testing the Ford government’s new policy on endangered species protection. Then things got really ugly.


Masters student Gabriella Zagorski carries a Blanding’s turtle through a Northern Ontario wetland alongside field technician Shannon Millar. The species once ranged widely across the Great Lakes and U.S. Midwest, but roads and agriculture disrupted their habitat and their numbers dwindled.

To her colleagues, Gabriella Zagorski is the “turtle whisperer.”

In the wetlands of Northern Ontario, she can approach a turtle with such stealth that it won’t see her coming. “If you move really slowly, then they think you’re a tree or something,” said the 24-year-old field biologist. “It can take up to an hour sometimes.”

Ms. Zagorski’s patience paid off two years ago when she was working on her masters degree at Laurentian University in Sudbury and began looking for Blanding’s turtles – a rare and globally endangered species – in a soggy pocket of provincial Crown land about 150 kilometres west of the city. Over two summers, she and her teammates found 56 Blanding’s turtles concentrated in an area that measures about three kilometres across. The unexpected find makes the site one of the richest and most densely populated refuges for the species ever found in Canada.

Zoom/Pan

North Shore, Ont.
100 km

Leaflet | © OpenStreetMap

Now, Ms. Zagorski’s turtles are caught in a showdown between a company that is seeking to turn the site into a quarry and local residents who oppose the project. The dispute has divided the township of North Shore, a picturesque stretch of rocky inlets and forested wetlands along the northern rim of Lake Huron where Ms. Zagorski’s study site is located.

This week, North Shore’s municipal council is expected to ratify a 3-2 vote to rezone the area for mineral extraction. If the rezoning is approved, it will be up to the province to say whether the quarry can go forward. The decision will become an early test of how species protection in Ontario is likely to be conducted under new legislation passed by Ontario Premier Doug Ford’s government last June.

In the meantime, the brewing controversy has already taken some strange turns, including one last year when Ms. Zagorski and her supervisor, biologist and professor Jacqueline Litzgus, found themselves accused of falsifying their data about turtles at the site.

Laurentian University biologist Jaqueline Litzgus, right, discusses a project with student Stephanie Delay at a turtle study site in Sudbury, Ont. IVAN SEMENIUK/THE GLOBE AND MAIL

Those charges were levelled by a consulting firm that was hired to conduct an environmental assessment of the site on behalf of the quarry company. In a letter to Laurentian’s vice-president of research, the company wrote that the scientists had committed research misconduct and asked the university to investigate. The letter was copied to municipal and provincial officials connected to the approval process for the quarry.

The university determined the complaint to be without merit and did not launch a misconduct investigation. Dr. Litzgus, a long-time faculty member who is known for her work in turtle ecology, saw the broadside as an attempt to undercut the scientists’ credibility with decision makers. “It’s mind-boggling to me that this could have happened,” she said. “Researchers shouldn’t be attacked for collecting data that might protect a species at risk in accordance with the law.”

Without naming their accusers, the scientists included mention of a “defaming attack” when they published their findings in October’s edition of research journal Global Ecology and Conservation. They noted that “after several exchanges between lawyers, a letter of apology and a retraction of the accusations was received from the consultant.”

Public documents obtained by The Globe and Mail show that Tulloch Engineering was the consulting firm that made the allegations in March, 2018, on behalf of the quarry company, Darien Aggregates, and its majority owner, Rankin Construction Inc. of St. Catharines, Ont.

Researchers spent more than two years tracking this Blanding’s turtle across the Northern Ontario wilderness with a radio transmitter attached. Now, it is ready for release.

Ms. Zagorski, right, Ms. Millar, middle, and field technician Heather Van Den Diepstraten, go out on the water during their research PHOTOS: GINO DONATO/THE GLOBE AND MAIL

The matter is playing out against a shifting landscape of provincial regulations.

Under Ontario’s Endangered Species Act, proponents of a project that could negatively affect a listed species can apply for an “overall benefit permit.” To obtain such a permit, the proponent must take specific actions that helps the species elsewhere to an extent that outweighs any negative effects the project might cause.

This year, the Ford government amended the act to provide another way for a project to get a green light. In principle, the change would allow the quarry to proceed as long as the company contributes money to a provincial conservation fund – an approach that critics have dubbed “pay as you slay.” Conservation groups say the change has dangerously weakened Ontario’s species laws. MORE

Naomi Klein and Youth Environmental Leaders to Join Sanders and Ocasio-Cortez in Iowa for Climate Crisis Summit

“We’ve never seen something like this in U.S. history. In 2020, Green New Deal voters could determine who wins the Iowa caucuses, and from there the presidency.”


“The climate crisis is an international challenge and we are ready to take it on with a Green New Deal,” Sen. Bernie Sanders, a 2020 Democratic presidential candidate, tweeted Monday. (Photo: Bernie Sanders/Twitter)

Author and environmentalist Naomi Klein, U.S. Youth Climate Strike co-founder Isra Hirsi, and Sunrise Movement leader Zina Precht-Rodriguez are among those slated to join Sen. Bernie Sanders and Rep. Alexandria Ocasio-Cortez in Iowa on Saturday for a “Climate Crisis Summit” focused on the urgent need for a Green New Deal.

“The climate crisis is an international challenge and we are ready to take it on with a Green New Deal,” Sanders, a 2020 Democratic presidential candidate, said Monday in a tweet promoting the summit, which is set to take place at Drake University in Des Moines
.

The event, as Vox reported Monday, is part of the Sanders campaign’s push to win the Feb. 3 Iowa caucuses with an ambitious climate message and policy platform. In August, Sanders unveiled a sweeping Green New Deal proposal calling for a 10-year mobilization to transition the U.S. economy to 100 percent renewable energy while creating 20 million decent-paying union jobs in the process.

“Sen. Bernie Sanders wants to be the new climate candidate of the 2020 presidential race—and his campaign is betting it can win them Iowa,” Vox reported Monday.

The youth-led Sunrise Movement tweeted in response to Vox‘s story that the country has “never seen something like this.”

“In 2020, Green New Deal voters could determine who wins the Iowa caucuses, and from there the presidency,” the group said.

The Sanders campaign said in a statement that the summit on Saturday “is set to be one of the largest gatherings in Iowa to confront climate change.” The event will feature national climate leaders like Hirsi and Precht-Rodriguez as well as local Iowa activists.

“Sen. Sanders probably has the most intensive climate plan on the circuit right now,” Hirsi told Vox. “I think a lot of young people are hearing Sanders’ message and waking up.”

“The climate crisis is everything,” Hirsi added. “It’s healthcare, it’s racial justice, it’s criminal justice—everything. It’s our lives on the line; lives are already being lost because of it.”

The day after the Climate Crisis Summit, Sanders plans to go on a “Green Jobs Tour” across Iowa’s conservative fourth congressional district.

Bill Neidhardt, the Sanders campaign’s deputy state director in Iowa, predicted the Vermont senator’s bold climate message will have broad appeal among Iowa voters.

“Climate is typically seen as an issue for young voters but we reject the notion that climate only engages young voters,” Neidhardt told Vox. “We think a strong focus on climate, especially on the economic issues, can really turn the tide.” SOURCE

RELATED:

Sanders, Ocasio-Cortez at ‘Climate Crisis’ summit

NEW VIDEO “INVASION” IS NOW AVAILABLE

Watch INVASION Now!


In this era of “reconciliation”, Indigneous land is still being taken at gunpoint. INVASION is a new film about the Unist’ot’en Camp, Gidimt’en checkpoint, and the larger Wet’suwet’en Nation standing up to the Canadian government and corporations who continue colonial violence against indigenous people.

The 18 minute film is powerful and covers many of the events of the last year.

Organize a community screening of INVASION

This fight is far from over. Getting this story out to the larger public is critical and you can do that by sharing INVASION with friends and hosting a screening in your community!

Simply download the film here, make a Facebook event using this graphic, and download and print the poster designed by Gord Hill and plaster around your town. You can host anywhere from a living room to a local theater.

You can pass the hat for donations to send to the camp and hold a discussion about how people can help further Indigenous movements for self-determination. If you plan to fundraise at your screening please use the fundraising guide and let us know about your event so we can help promote it!

If you need any help organizing an event or have any questions please shoot us an email!

Donate
The struggle at Unist’ot’en continues forward and financial support is needed to maintain the camp and fund legal challenges. You can support the Unist’ot’en financially here: http://unistoten.camp/support-us/donate/

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Supporters who can stay 2 weeks or longer are needed on an ongoing basis! Register today!

Canada treats mining companies like the goose that laid the golden egg. What we get in return looks more like a goose egg.

View of Greek mine site

Mining enjoys massive government support in Canada. Politically, it’s treated as a preferred development option for remote communities and Indigenous peoples. Former Saskatchewan premier Brad Wall once said, “The best program for First Nations and Métis people in Saskatchewan is not a program at all—it’s [uranium mining company] Cameco.” The law backs this up. Mining companies still have rights to “free entry” in much of Canada, since mining is legally considered the “highest and best” use of land. Though these laws are being challenged by First Nations, today prospectors can stake claims and even drill or trench without any consideration for other land users, or in some cases, even private landowners.

There are also financial incentives to mine. The federal and provincial governments and territories spend hundreds of millions on road and power corridors to support mining projects, while supporting training for mining skills that are often not highly transferrable. Already low corporate tax rates are further reduced by accelerated capital cost allowances and deductions for exploration and development costs. “Flow-through” shares allow mining companies to pass exploration costs onto investors as tax deductions. And while they’ve been slowly getting better, Canadian jurisdictions still dramatically undercharge mining companies when it comes to setting aside money to clean up spills or for long-term environmental monitoring and rehabilitation.

All of this is justified publicly by the creation of jobs, contribution to GDP and exports—and taxes paid. Mining does create “good pay” jobs, though more of these are displaced from other sectors than the industry will admit. Mining does generate export earnings and boost GDP, though economists will argue about whether these really represent development, especially when what is being exported is raw materials with little value added. So, what of the taxes?

On paper, mining operations pay corporate tax and sales tax, among others, along with royalties (sometimes called “mining tax”) intended to compensate the state for the permanent loss of whatever resource is being extracted. Depending on the audience, mining companies will either brag or complain about the amount of tax they pay. They rarely explain how those amounts are calculated, much less compare them to what they might have had to pay if it weren’t for the lowered tax rates, tax holidays and exemptions. More egregiously, they also like to take credit for the taxes that their workers pay.

James Wilt, writing in The Narwhal in July last year, found that Canadian governments collect a smaller percentage of mineral value than almost any other jurisdiction in the world. There are a number of explanations for this, ranging from low tax rates to grace periods and tax holidays, as mentioned, to using a variable base for calculating royalties. Canada is unusual internationally, for example, in the extent to which it charges royalties based on profits rather than on the amount of mineral extracted, allowing for deductions and “profit-shifting” to diminish the amount owed.

In an extreme example, the CBC’s Rita Celli reported in May 2015 that in 2013-14, De Beers Canada paid the Ontario government $226 in royalties from its Victor Mine in Attawapiskat, the only diamond mine in the province. “The diamond royalty stirred a huge debate when the Ontario government suddenly introduced it in 2007,” wrote Celli. “Then-premier Dalton McGuinty promised it would enrich all Ontarians. He promised the money would be used to hire more nurses and keep class sizes small in schools.”

The low figure was due to De Beers having been allowed to write down its capital investment against the royalties. Tom Ormsby, De Beers’ vice-president of external and corporate affairs, told Celli the company started to pay millions in 2014. Its reports under Canada’s Extractive Sector Transparency Measures Act (ESTMA), in force since 2015, show it paid US$15.8 million in royalties in 2016 (on earnings of US$79 million) and US$11.3 million in 2017 (on earnings of US$205 million). The mine closed in early 2019. In other words, the mine probably generated almost nothing for the province for the entire first half of its production, and probably less than $100 million over its 11-year life.

Any assessment of the millions in taxes and royalties from mining operations has to include the overall value of the resource, as they remove many times more millions of dollars’ worth of metals. Any honest calculation also has to include not only the overall flow of money to governments, but also the subsidies, costs and liabilities, including social disruption and damage to local economies and the environment.

***

Internationally, the Canadian government takes the promotion of Canadian mining companies very seriously indeed. This is demonstrated by the fact that while Canadian and international civil society has been pushing for almost two decades for restrictions on the international activities of Canadian companies, the federal government has refused to recognize that illegal activity and human rights and environmental abuses are even happening, much less restrict them—or enforce the sole piece of legislation we do have, the anti-bribery Corruption of Foreign Public Officials Act.

At the same time, Canada provides massive support for transnational mining investment, both politically and economically. It helps explain why so many mining companies are domiciled in Canada, even if they have no Canadian operations, or even no Canadian directors, and regardless of who actually owns the majority of their shares.

Our embassies contribute “economic diplomacy,” which includes pressuring foreign governments to support favourable legislation and policies and helping build relationships between mining executives and foreign officials, such as mining ministers and state presidents. Canadian diplomats also provide support directly to companies, going so far as to help them comply with regulations and apply for permits. Even our development aid is skewed toward rewarding countries and regions that are willing to host Canadian mining projects, and assisting governments in administering mining laws so as to smooth the way for Canadian investment.

Economic support is both direct (investment from the Canada Pension Plan and Canadian Investment Fund for Africa, for example, or loans and political risk insurance from Export Development Canada) and indirect. Canada has built a massive network of tax treaties, bilateral investment treaties and free trade agreements that all serve to facilitate and protect Canadian investment, as well as allowing profits to be shifted through subsidiary companies to avoid taxation. It’s all perfectly legally, if you do it right.

The result is a ballooning offshore pool of wealth sitting in tax havens and secrecy jurisdictions in the Caribbean, Channel Islands, and even some U.S. states—wealth that is not taxed to benefit the countries it was extracted from, or even the country that worked so hard to facilitate it (in this case, Canada). Governments that try to protect their own people and ecosystems from mining destruction face the threat of multimillion-dollar lawsuits through arbitration provisions in those investment agreements.

To pick just one example, Eldorado Gold has been struggling for years to overcome committed local opposition to its planned Skouries open-pit gold mine in Halkidiki, northern Greece. Local people opposed to the massive project have raised objections over the destruction of a forest that is of immense cultural and historic significance—it is where local partisans gathered to strategize and mobilize against the fascists, and now serves as a focus for tourism, beekeeping, etc.—and the contamination of freshwater supplies (the ore is loaded with arsenic, among other things).

Chart showing Eldorado Gold profits from sites

They have also questioned the promised benefits for the Greek state—with good reason. A study led by the Dutch organisation SOMO (the Centre for Research on Multinational Corporations) found the company has structured its investment with tax avoidance in mind. Subsidiaries in the Netherlands will allow Eldorado to shift profits from Greece to the Netherlands and Barbados, minimizing exposure to taxes and leaving Greeks with little to show for the mine’s ecological, social and economic disruption. SOMO calculated this arrangement had cost Greece 1.7 million euros in lost tax in 2013-14 alone (nearly $2.5 million based on the exchange rate at the time).

A look at Eldorado Gold’s payments to governments, as disclosed under ESTMA, shows that as of 2018, the company made significant payments in Turkey, where most of its gold production is, but nowhere else. Not even Canada, where it is supposedly headquartered, but also where it now operates the Lamaque Mine outside of Val-d’Or, Quebec.

What we don’t know is how much the company should have paid in the absence of what the accountants call “aggressive tax planning,” or what the rest of us call tax dodging. Nor does this accounting show how much has been set aside as security bond for closure, cleanup, and possible spills and accidents.

It makes sense that Turkey, as the primary host of Eldorado Gold’s operations, should benefit most. It’s an open question whether the country benefits enough to compensate for the loss of its gold-bearing ore, not to mention the various forms of damage occasioned by mining or the liabilities it leaves behind. And it’s more than likely that the company has minimized its exposure to Turkish taxes.

But at the same time, there is clearly no direct return for Canada from all of the support we provide. If share value increases or the company pays dividends we can benefit as shareholders—through our pensions, RRSPs or the Canada Pension Plan. But clearly the loot is mostly being scooped up by others: well-paid company executives, the banks that finance all of this, and the legal, accounting and investment houses.

At the end of the day, the notion that mining is good for Canada is pretty dubious. The reality within Canada is much more complex than our governments and most of the media are willing to admit. In other parts of the world, the reality is that Canadian mining primarily benefits the mining companies, their local backers, and their financiers. Its contributions to “host” countries are variable and on balance generally negative. Despite all the effort from public officials, Canada hardly benefits at all. It’s past time we started to dismantle the legal, regulatory, financial and political support that feeds and sustains this false narrative. SOURCE

Tax Fairness Now!

Image result for the monitor: tax fairness now

Taxes are the foundation of a healthy democracy. They fund the public services we depend on every day: roads, schools, community and social services, health care, justice, environmental protection and much more. But over two decades now, governments have undermined the progressivity of our tax system by cutting corporate and top income tax rates and letting tax loopholes proliferate. The top 1% of Canadians by income now pay a lower overall rate than all other income groups, including the poorest 10%.

Emerging from its 43rd federal election, Canada faces no shortage of urgent domestic and global challenges. We can afford to fund solutions to crises like poverty, housing and climate change, but substantial progress will require more funding and that should come from making our tax system fairer. This special edition of the Monitor explores how we can do that.

Here’s a sample of what you’ll find in the issue.

We can’t do this without you! Please consider donating to the CCPA to get the Monitor delivered to your home or workplace.

Cover illustration by Michael Haddad.

DOWNLOAD THE MONITOR (4.7 MB)

 

Ontario renewed funding push for Ring of Fire roads as viability of venture questioned

 

Image result for ring of fire chromite

The Ontario government appealed to Ottawa this summer to split a $1.6-billion construction bill for roads into the Ring of Fire region, despite mounting evidence the minerals project in the province’s North isn’t economically viable.

Documents reviewed by The Globe and Mail show that Greg Rickford, Ontario’s Minister of Energy, Northern Development and Mines, sent an e-mail in July to a number of federal ministers asking for Ottawa to kick in as much as $779-million to roughly match Ontario’s contribution.

As part of his business case for investing in the Ring of Fire, Mr. Rickford referenced a number of often-cited huge financial projections about the project that have no supporting evidence.

Last month, a Globe investigation uncovered serious cracks in the investment case for any branch of the government to invest in the Ring of Fire, an area that contains an undeveloped nickel and chromite discovery in a giant swamp in Northern Ontario about 550 kilometres northeast of Thunder Bay.

“The combined gross value of known nickel and chromite deposits has been estimated at over $60-billion,” wrote Mr. Rickford in the e-mail that went to federal ministers responsible for infrastructure, environment and Indigenous services.

James Franklin, a well-known geologist who came up with the $60-billion estimate in 2013 in reference to the value of minerals in the ground at the site, has backed away from the figure. He told The Globe it was no more than an educated guess, didn’t account for mineral extraction costs and should not be used by Ontario to pitch the project.

In a September interview, Mr. Rickford said some of the estimates around the Ring of Fire’s potential “have been too big for anybody to believe.” But his recent correspondence to Ottawa also contains statements that appear to hype the project.

The Ring of Fire, he wrote, has the potential to be “one of the most significant mineral developments in Ontario in over a century,” represents “an unparalleled opportunity” for Canada’s mining sector, and is a project that could support mining in the region “for upward of 200 years.”

When asked both about the $60-billion valuation and the pronouncements about the Ring’s prospects, Sydney Stonier, a spokesperson for Mr. Rickford, wrote in an e-mail that “mining opportunities in the Ring of Fire region represent unprecedented opportunities of national significance.”

Discovered in 2007 and 2008, the Ring of Fire contains mostly early stage deposits of chromite – a mineral used in the production of stainless steel. The area also contains small amounts of nickel, platinum and palladium. While it was once the epicentre of a prospecting rush, the Ring’s fortunes have faded in the past five years.

The investment case has become increasingly shaky in the face of multibillion-dollar cost hurdles, a worldwide supply glut in the chromite market, and environmental concerns from First Nations in Ontario.

The engineering challenge alone to build access roads and bridges connecting the swampy, boggy region of Ontario to the provincial highway network, some 300 kilometres south, is considered immense.

In his e-mail to federal ministers, Mr. Rickford said the latest cost projections on roads are based on a “preliminary estimate,” prepared by engineering consultants Hatch Ltd. and Morrison Hershfield. Their work builds on a previous early stage study done by Cleveland-Cliffs Inc., formerly Cliffs Natural Resources, a senior mining company that gave up on the Ring about five years ago.

While Ontario has been a long-term champion of the Ring of Fire, the federal government has so far refused to kick in major funds. MORE

Trump makes it official: U.S. will withdraw from the Paris climate accord

“It’s a sad reminder of where the world’s former leader on climate change now stands,” one critic said.

View the Video

The Trump administration notified the international community Monday that it plans to officially withdraw from the Paris climate accord next fall, a move that will leave the world’s second-largest emitter of greenhouse gases as the only nation to abandon the global effort to combat climate change.

President Trump has long criticized the 2015 accord and insisted that the United States would exit it as soon as possible. As recently as last month, Trump called the agreement “a total disaster” and argued that the Obama administration’s pledges to cut carbon emissions under the deal would have “hurt the competitiveness” of the United States.

In a statement Monday afternoon, Secretary of State Mike Pompeo said the administration had sent official notification of its plans to the United Nations.

“In international climate discussions, we will continue to offer a realistic and pragmatic model — backed by a record of real world results — showing innovation and open markets lead to greater prosperity, fewer emissions, and more secure sources of energy,” Pompeo said. “We will continue to work with our global partners to enhance resilience to the impacts of climate change and prepare for and respond to natural disasters.”
RELATED:

A Comparative Analysis: Public Consultation for Bill 4, the Cap and Trade Cancelation Act, 2018, and the Federal Duty to Consult Aboriginal Peoples under s.35

Image result for Mikisew’
Photo: Bruce MacLean
On October 11, 2018, the Supreme Court of Canada released its decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 [Mikisew], in which the Court held that the Federal Government does not have a duty under s.35 of the Constitution Act, 1982 to consult Aboriginal Peoples in the development of legislation. Mikisew was an application by the Applicant Indian Band to the Federal Court for judicial review of Parliament’s introduction of two omnibus Bills in 2012 that had significant effects on Canada’s environmental protection regime and had the potential to adversely affect the Mikisew’s treaty rights to hunt, trap and fish. The Mikisew had not been consulted on either of the omnibus bills at any stage in their development or prior to the granting of royal assent. The Mikisew argued that the Crown had a duty to consult it on the development of the legislation.

While the Federal Court at the first level allowed the Mikisew’s Application, the Federal Court of Appeal granted the Crown’s appeal. In granting the appeal, the Federal Court of Appeal found that the reviewing judge had erred by conducting a judicial review of what amounts to a legislative action contrary to the Federal Courts Act, RSC 1985, c F-7.

The Issues before the Supreme Court of Canada were twofold:

  1. Did the Federal Court have jurisdiction under ss. 18 and 18.1 of the Federal Court’s Act to hear the Application?
  2. Does the development of legislation by Ministers trigger the duty to consult Aboriginal Peoples under s.35 of the Constitution Act, 1982?

On the first issue, the SCC found that while s.17 of the Federal Courts Act gives the Federal Court concurrent original jurisdiction where relief is claimed against the Crown, this jurisdiction does not extend to the review of the exercise of legislative power by executive actors. The SCC also found that ss. 18 and 18.1 of the Federal Courts Act only grant the Federal Court jurisdiction to judicially review action taken by a “federal board, commission or other tribunal”, which is defined in s. 2(1) of the Act as a body exercising statutory powers or powers under an order made pursuant to a prerogative of the Crown.

The SCC noted that s.2(2)  of the Federal Courts Act specifies that the Senate, the House of Commons, or any committee or member of either House is not a federal board, commission or other tribunal within the meaning of s.2(1). Moreover, the SCC reasoned that Ministers do not act pursuant to statutory powers when developing legislation; rather, they act pursuant to powers under Part IV of the Constitution Act, 1867. The SCC held that Ministers, when developing legislation, do not act as a federal board, commission or other tribunal and their actions are immune from judicial review. The SCC outlined its reasons as follows:

“… the separation of powers and parliamentary privilege apply to parliamentary proceedings and to the process leading to the introduction of a bill in the House of Commons. The development, drafting and introduction of the omnibus bills are immune from judicial interference.” 1

[Emphasis added]

According to the SCC, “the entire law-making process — from initial policy development to and including royal assent — is an exercise of legislative power which is immune from judicial interference”. 2

On the second issue, the SCC held that the duty to consult under s.35 applies only to executive, not legislative action. The SCC reasoned that the duty to consult doctrine is ill suited for legislative action, and that it is rarely appropriate for courts to scrutinize the law making process. According to the SCC, this judicial reluctance to supervise the legislative process derives from the Constitutional principle of the separation of powers, as Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority.

The SCC emphasized, however, that simply because the duty to consult doctrine is inapplicable in the legislative sphere, this does not mean the Crown is absolved of its obligation to act honorably. Despite its finding that legislation cannot be challenged on the basis of the duty to consult, the SCC left open the possibility for future case law to recognize another remedy where Aboriginal or treaty rights may be adversely affected by legislation.

Bill 4, the Cap and Trade Cancellation Act, and Public Consultation

On July 3, 2018, the Ontario Provincial government introduced O. Reg. 386/18 (“Regulation”) under the Climate Change Mitigation and Low-carbon Economy Act, SO 2016, c 7 (“CCMLE Act”). The Regulation revoked the operational elements of Ontario’s cap and trade system for reducing greenhouse gas emissions. Subsequently, on July 25, 2018, the Ontario Provincial Government introduced Bill 4, Cap and Trade Cancellation Act, 2018 (“Bill 4”) into the legislature, which, if enacted, would repeal the CCMLE Act.

On September 11, 2018, Greenpeace Canada filed an Application under s. 6(2) of the Judicial Review Procedure Act in the Superior Court of Justice challenging the Province’s introduction of O Reg 386/18 and Bill 4, arguing that the Province had failed to comply with its public consultation obligations under ss. 15 and 16 of the Environmental Bill Right Rights (“EBR”), which state:

s.15(1) “If a minister considers that a proposal under consideration in his or her ministry for a policy or Act could, if implemented, have a significant effect on the environment, and the minister considers that the public should have an opportunity to comment on the proposal before implementation, the minister shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented.”

s.16(1) “If a minister considers that a proposal under consideration in his or her ministry for a regulation under a prescribed Act could, if implemented, have a significant effect on the environment, the minister shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented”

On September 12, 2018, the day after Greenpeace initiated its Application, the Provincial Government announced that it would provide for a 30-day public consultation period regarding Bill 4. Greenpeace has declared this to be a “partial victory”, but has implied that it intends to proceed with its Application, stating that “the Ford government still must answer in court for its violations of Ontarians’ rights under the Environmental Bill of Rights”.

Mikisew’s Implications for the requirement of Public Consultation under the EBR

The Supreme Court’s decision in Mikisew raises the question of whether the Superior Court would grant a remedy for the Province’s failure to comply with the EBR in its introduction of Bill 4. The Supreme Court in Mikisew was clear that legislative action, i.e., the development of legislation, is not normally subject to judicial scrutiny.

Of course, an obvious difference between Greenpeace’s Application and Mikisew, is that Mikisew was decided in the context of the Federal Courts Act, which circumscribes the Federal Court’s jurisdiction to hear applications for judicial review. Unlike the Federal Court, the Ontario Superior Court of Justice is a court of inherent jurisdiction whose jurisdiction to judicially review governmental action is a common law right as opposed to a statutory grant of power.

Nevertheless, the common law of judicial review of administrative action dictates that the development of primary legislation does not generally attract administrative rights. 3 Recently, for instance, the Honourable Justice Belobaba in City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 [City of Toronto], reiterated this principle:

“The provincial legislature has no obligation to consult and no obligation of procedural fairness. The doctrine of legitimate expectations, an aspect of procedural fairness, does not apply to legislative enactments” 4

Similarly to Greenpeace in its Application, the Applicant in City of Toronto had argued that the City of Toronto Act, 2006, SO 2006, c 11, Sch A imposed on the Province a duty to consult the Applicant in the creation of Bill 5, Better Local Government Act, 2018. To this argument, Justice Belobaba replied in obiter as follows:

“A federal or provincial legislature is sovereign and cannot bind itself. The provincial legislature can over-rule or contradict a previously enacted law. A subsequent enactment that is inconsistent with an earlier enactment is deemed to impliedly repeal the earlier enactment to the extent of the inconsistency. Thus, the argument that the City of Toronto Act somehow imposed an immutable obligation to consult cannot succeed. The Province was entitled to enact Bill 5 and ignore completely the promise to consult that was set out in the previous law.”5

It could be argued that the EBR, like the City of Toronto Act, is merely a Provincial statute with which the Province need not comply in enacting new legislation. Moreover, the ruling in Mikisew suggests that even a Constitutional duty to consult may not bind a government in the enactment of primary legislation. Mikisew’s iteration of this principle renders it uncertain whether the Province did indeed have a legal obligation to consult the public in introducing Bill 4. By contrast, however, the promulgation of regulations under primary legislation is subject to judicial review,6 and it is possible that the portions of Greenpeace’s Application concerning the introduction of O Reg 386/18 could lead to a finding that the Province did indeed breach its obligations to consult under the EBR.

The 30-day public consultation period regarding Bill 4 closed on October 11, 2018 and Bill 4 is currently awaiting its third reading before the Legislative Assembly of Ontario. It remains to be seen if and how the public consultation period will affect the content of Bill 4 and whether Greenpeace’s Application will proceed. SOURCE