Courts deny most First Nations injunctions


Indigenous leaders march on Jan. 8, 2019, in Vancouver, B.C. Rallies were held across Canada to show solidarity with Wet’suwet’en. Photo by Michael Ruffolo

But she was shocked after she and her fellow researchers began crunching numbers.

The team at Yellowhead Institute, an Indigenous-led think tank, reviewed nearly 100 injunction cases. They found corporations succeeded in 76 per cent of injunctions filed against First Nations, while First Nations were denied in 81 per cent of injunctions against corporations.

Similarly, First Nations were denied in 82 per cent of injunctions filed against the government.

The findings were published in a Yellowhead report, called Land Back.

Infographic illustrating Yellowhead Institute’s findings in its report, Land Back. Provided by Yellowhead Institute.

“What we found was even more shocking than we could have imagined,” Pasternak said of what she called “astronomically high” numbers for corporations and governments and “absolutely dismal success” for First Nations.

A small team of researchers at Yellowhead pored through cases across the country, set research parameters (for example, they focused on First Nations instead of Inuit and Métis) and variables and had 10 people conduct a peer review on the methodology.

They concluded the data shows that the court system is skewed toward seeing value and harm in economic terms opposed to Indigenous people asserting their rights and their laws.

“It was a very weird feeling to discover that. On the one hand, I felt vindicated that we had spent so much time on it,” Pasternak said. “And on the other hand, within a moment, I felt so depressed just thinking about how this mechanism had so unlawfully removed people from protecting their own land.”

Michael Toledano@M_Tol

For those who can’t sleep tonight, my video on the RCMP raid on Gidumt’en territory: https://youtu.be/2oand_gk59o 

How an injunction works

Filing an injunction is a very expedited process — so there is not much time to present the courts with extensive or complex evidence.

A party may file an injunction one afternoon and have a hearing the next day, said Sean Sutherland, an associate at Osler, Hoskin and Harcourt LLP in Calgary. The firm has represented Kinder Morgan and Enbridge, as well as renewable-energy companies and companies in other industries.

Injunctions are mostly done by affidavits and are meant to provide temporary relief in a matter of urgency. The party filing for the injunction must prove they cannot wait until a hearing for resolution.

Sutherland explained there are three tests in an injunction: whether it’s a serious issue; whether it may cause irreparable harm; and the “balance of convenience,” which means the court decides whether the party wanting the injunction or the party resisting faces the bigger risk of suffering harm.

He emphasized how the harm must be irreparable, and many injunctions are lost in court at that test.

“You can have very significant harm in terms of magnitude, but it’s still not irreparable,” he said, in which case the courts say the decision can wait for a final hearing. MORE

Making Ecocide Punishable Under International Law

Image result for tar sands ecocide
Alberta’s tar sands toxic tailings ponds
Dear EarthTalk: I’ve heard of suicide, homicide and genocide, but what is ecocide?

—Leslie P., Carrboro, NC

While the concept of “ecocide” may be new to many of us, the practice of willfully destroying large areas of the natural environment has been around about as long as humans — although we got a lot better at it using the machinery we developed during the industrial revolution. Bioethicist Arthur Galston first started batting the term around in the 1970s to describe intentional widespread ecological destruction, especially as it pertained to ruining inhabited environments so people couldn’t live there anymore.

Scottish barrister and activist Polly Higgins led the charge to get “ecocide” recognized as a “crime against peace” by the International Criminal Court. Credit: Elevate Festival, FlickrCC.

One classic example of ecocide in modern history is American troops’ widespread application of the toxic herbicide Agent Orange across Southeast Asia during the Vietnam War in the late 1960s. It was used to clear some 12,000 square miles of tropical rainforest to enable flushing out the “enemy,” despite the toll on civilians and the environment.

There are also plenty of present-day examples, including: mountaintop removal coal mining in Appalachia whereby miners blast through hundreds of feet of earth to access thin seams of coal; the “fracking” for oil and gas across wide swaths of Canada’s Alberta tar sands that has so far destroyed thousands of square miles of boreal forest and peat bogs while releasing hundreds of tons of greenhouse gases into the atmosphere; the dumping of crude oil and toxic waste into Ecuador’s Amazon by oil companies too focused on profits to do the right thing about waste removal; and deep sea mining whereby the use of heavy machinery to ply veins of precious metals from the seabed is ruining marine ecosystems we still know little about.

In recent years Scottish activist Polly Higgins championed the cause of getting the International Criminal Court (ICC), an independent judicial body created by the United Nations in 1998, to recognize ecocide as a “crime against peace” in the eyes of international law. Her work focused on getting the ICC to add ecocide as the fifth prosecutable “core international crime” (along with genocide, crimes against humanity, war crimes and crimes of aggression). Sadly, Higgins succumbed to cancer at age 50 in April 2019, but her efforts to institutionalize ecocide as a major international crime lives on with other activists.

“Destroying the planet is currently permitted,” says Jojo Mehta of the non-profit Stop Ecocide. “That is how ecosystems are being destroyed every day by dangerous industrial activity, exacerbating the climate emergency and destroying our forests, our soils, our rivers and the lands that we love.”

Mehta points out that any of the 122 member states of the ICC can formally suggest adding ecocide as a major international crime. Stop Ecocide is working with small Pacific island nations which are already “feeling the sharp end of climate change” to urge ICC to finally adopt ecocide as another crime it prosecutes.

“Serious harm to the Earth is preventable,” urges Mehta. “When government ministers can no longer issue permits for it, when insurers can no longer underwrite it, when investors can no longer back it, when CEOs can be held criminally responsible for it, the harm will stop.” SOURCE

Are there alternatives to free trade?

Squeezed between nativists who seek to obliterate the world trading system for their own purposes and neo-liberals who want to use trade regimes to erode public power, the ongoing debate is missing a vision of a progressive system of trade rules. Too often, progressives end up rejecting trade agreements instead of proposing avenues for transforming world trade.

To address some of these questions, the Canadian Centre for Policy Alternatives and the Trade Justice Network held a day-long symposium in Ottawa on October 30 titled “Beyond Neo-Liberalism: Toward an Agenda for People and the Planet.”

In a keynote address, Maude Barlow, Honorary Chairperson of the Council of Canadians, set the scene for the discussion. She asked, “What would trade agreements look like if they prioritized the needs and rights of workers over corporations? What would they look like if they promoted a more sustainable model of food production that protects soil and water and respects farmers? What would they look like if they had to take into account their water and environmental footprints at home and in other countries? What would they look like if they promoted alternative, more sustainable sources of energy? What would they look like if, instead of giving preferential treatment to global corporations, they established binding human rights and environmental obligations on corporations and placed capital controls on runaway speculation of the kind that caused the 2008 crash? What would they look like if they took into account the free, prior and informed consent of local indigenous people now enshrined in the UN Universal Declaration on the Rights of Indigenous Peoples?”

For example, it is evident that investor state dispute settlement systems give multinational corporations power over what countries can legislate. And this has cost us money. Regulatory cooperation and trade rules have been used to ensure that public policy is measured by how it enhances trade rather than public welfare. It leads governments to favour multinational suppliers over local production.

As Barlow says, “Modern free trade agreements, along with deregulation and privatization, have led to the greatest wealth disparity since the robber barons of the turn of the 20th century. Of the world’s top economies, 31 are countries and 69 are corporations. Apple’s revenues exceed the GDPs of two-thirds of the world’s countries. Walmart’s annual revenues exceed the GDPs of 157 countries. BP is bigger than Russia. Exxon is bigger than India.”

Workshops at the symposium discussed drug pricing, environmental policy and the Green New Deal, overhauling dispute mechanisms to address environmental and human rights concerns, digital rights, Indigenous rights, food sovereignty, labour standards, cultural diversity and human rights in general.

Howard Mann, an advisor on international law, concluded by saying that trade agreements have little to do with trade, itself. Countries are told they are adapting poorly to trade agreements, he noted, but it is trade agreements themselves that in fact create social problems such as income and gender inequality, unemployment and environmental degradation. SOURCE

This new calculator tells billionaires how much tax Elizabeth Warren would make them pay


[Photo: The New York Public Library]

For the billionaires out there who are confused about how much they’d pay in taxes under Elizabeth Warren’s Ultra-Millionaire tax plan, the Warren campaign has a new calculator to help. “Are you a billionaire?” it asks, and then prompts users to enter their net worth.

If you’re Bill Gates, for example, who criticized Warren’s plan yesterday—prompting Warren to reach out on Twitter and clarify how much he would actually pay—the calculator explains that you’d owe $6.379 billion next year:

WOW — YOU’VE GOT A LOT OF MONEY!
Your wealth puts you in the top 0.0002% of Americans.

Now you have the opportunity to invest some of it back into our society so everyone has a chance to succeed.

You’d pay $6.379 billion next year under Elizabeth’s wealth tax. This amount, which you likely won’t even feel, will help us invest in education from birth through college and help finance health care for everyone.

Good news – you’ll still be extraordinarily rich! And if history is any guide, if you do nothing other than invest your wealth in the stock market, it’s likely that your wealth will continue to grow.

For those of us who aren’t billionaires, the calculator offers links to examples of others, including Jeff Bezos (who would owe $6.697 billion next year under the plan, but who has a net worth of  $112,300,000,000) and Mark Zuckerberg (who would owe $4.249 billion but has a net worth of $71,500,000,000). SOURCE

 

There’s huge potential energy savings hiding in our air conditioners

Bluon, with investment from Leonardo DiCaprio, can replace the usual refrigerants in AC units with something much better.


[Source Photo: tiler84/iStock]

Leonardo DiCaprio has become known for his environmental activism in recent years, donating money to causes and investing in companies helping to fight the climate crisis. It might seem unlikely that one of those companies would be a not-at-all glamorous, obscure startup that makes a new refrigerant for air conditioners. But the company, called Bluon, has technology that provides a relatively simple way to make big cuts in energy use. “He recognized quickly how impactful it could be in the real world fight for the reduction of greenhouse gases,” says Peter Capuciati, Bluon’s founder and CEO.

Swapping out the new refrigerant—called TdX 20—in place of old refrigerants in an HVAC system in a 100,000-square-foot office building can save enough electricity to eliminate 120 metric tons of CO2 per year, as much as the energy savings from converting 40 gas-powered cars to Teslas.

In the U.S. alone, residential and commercial buildings used about 377 billion kilowatt-hours of electricity to stay cool last year, or about 9% of total electricity use. Globally, by the middle of the century, energy demand from air conditioners is projected to triple as people buy the equivalent of 10 new air conditioners every second for the next 30 years. Ironically, the increase in extreme heat from climate change is leading to more sales of air conditioners and more energy use, adding to the climate pollution that leads to more extreme heat.

[Source Photo: tiler84/iStock]

Refrigerants first drew attention in the 1980s, when the growing hole in the ozone layer was linked to the chemicals, called CFCs, and governments agreed to put the Montreal Treaty in place to slowly phase them out. By 2013, new equipment no longer used this type of refrigerant. By the end of this year, no new CFC refrigerants, such as R-22 (better known as Freon), will be manufactured. But most of the refrigerants designed to replace them actually create some other problems—including the fact that they use more energy.

Capuciati, a physicist-turned-real estate entrepreneur-turned investor, saw an opportunity in 2012 to find a better solution. “All the replacements that I was aware of at the time were pretty poor replacements . . . they would decrease efficiency, meaning the equipment would burn more electricity doing the same job, they would cause the unit to run harder and longer,” he says. “Therefore, they break down more often. So you had this huge infrastructure that at the time was close to $1.5 trillion worth of equipment sitting around on rooftops across the country that was going to be in trouble when R-22 finally got phased out in 2020.”

His team studied the other products on the market and realized that the software that had been used to predict how they would work was flawed. After a couple of years, they were able to develop a more efficient product, and a couple of years later, they had EPA approval to sell it. Then, realizing that all new refrigerants require retraining the technicians who install them, they developed a training program and app for technicians to use. (Traditionally, the common method for determining if enough refrigerant has been added to an HVAC system involves touching the equipment to see if it has reached a temperature of “beer can cold,” but with any of the new refrigerants, not using a more precise method can blow up a very expensive piece of equipment.)

Now, as the supply of R-22 dwindles, the company is hoping that building owners who need replacement refrigerant in old systems will turn to its product and save energy in the process. The company also wants to address the problem of refrigerants leaking from systems; if the chemicals escape, they impact climate change far more than CO2. R-22 has a “global warming potential” of 1,810, meaning that it’s nearly 2,000 times as potent at CO2 as a climate pollutant. Most of the chemicals designed as replacements are even worse. Bluon’s new product still has issues if it leaks, with a global warming potential of 1,564. But the company says that its retrofit process focuses on eliminating leaks. It also argues that the total impact of its energy savings is much larger than what could come from leaks. Its goal is to recruit and train as many HVAC technicians as possible. “You’ve got several hundred thousand technicians, that, if you think about it, are the biggest army of energy consumption on the planet,” says Capuciati. SOURCE

 

 

Energy giants face 35 per cent output cut to hit Paris climate goals: watchdog

Pollution

The 2015 Paris deal enjoins nations to limit temperature rises to “well below” two degrees Celsius (3.6 Fahrenheit) and to a safer cap of 1.5 C if at all possible. (AFP)

The biggest listed oil and gas giants must slash production by more than a third by 2040 to keep emissions within targets laid out in the landmark Paris climate deal, an industry watchdog said Friday.

Carbon Tracker, a Britain-based think tank, said that current rates of emissions from the energy majors would see the world’s carbon budgets surpassed within decades due to an inexorable rise in oil and gas output.

The 2015 Paris deal enjoins nations to limit temperature rises to “well below” two degrees Celsius (3.6 Farenheit) and to a safer cap of 1.5C if at all possible.

In order to hit these targets, the world must undergo a drastic drawdown in emissions of planet warming greenhouse gases.

Because carbon dioxide contributes to global warming at a known and predictable rate, scientists can calculate Earth’s “carbon budget” for a range of temperature rise scenarios.

Carbon Tracker estimated that a current emissions rates — and emissions are still rising annually — the carbon budget for a 1.5C temperature rise will be exceeded in 13 years.

For 1.75C — already a level deemed far from safe by the world’s leading scientists — that budget gets exceeded in 24 years, according to the watchdog.

It used the International Energy Association’s BD2S climate scenario to predict a rise of 1.6C, then compared that to data assessing the emissions trajectories of major oil and gas projects. The analysis showed that the listed majors on average needed to cut production by 35 percent within two decades to stick to the 1.6-C path.

“There’s a finite limit for any carbon that can be released for any given level of global warming and that implies that if we are going to have a good result under Paris or any other climate target, fossil fuel production is going to need to shrink,” Andrew Grant, senior oil and gas analyst at Carbon Tracker, told AFP.

“While companies may all say they support Paris — whatever that means — they still plan to keep producing more oil, gas and coal.”MORE

 

 

 

Nova Scotia, B.C. groups pair up on court challenge to overturn Canada’s electoral system

A sign points voters to the polling station at St. James Anglican Church on Joseph Howe Drive in Halifax on Monday, Oct. 21, 2019.
A sign points voters to the polling station at St. James Anglican Church on Joseph Howe Drive in Halifax on federal election day, Monday, Oct. 21, 2019. – Ryan Taplin

OTTAWA, Ont. — A Nova Scotia charitable organization wants the courts to force Canada to abandon its winner-take-all electoral system in favour of one that awards seats in Parliament according to the popular vote.

Halifax-based Springtide Collective and Fair Voting B.C. filed an action with the Ontario Superior Court of Justice in Toronto earlier this month arguing that Canada’s first-past-the-post system violates the Charter of Rights and Freedoms’ guarantee of fair representation.

Springtide executive director Mark Coffin said the case has been in the works since 2017. By August of 2019 the groups had raised enough money to cover the costs of preparing a court application and securing expert testimony.

“This is a civil rights issue like any other civil rights issue. It’s always best when politicians take steps in lawmaking that would protect and enhance our civil rights, but when we don’t get that from our politicians, and in this case, when we see time and time again politicians really not enthusiastically supporting or championing reform to ensure that everybody’s votes count, it’s time for the courts to intervene,” Coffin said.

Coffin added there’s a pattern of behaviour where campaign on electoral reform, then back off when elected. Justin Trudeau’s Liberals promised that 2015 would be the last election under first-past-the-post, but abandoned the idea of electoral reform a year later.

The applicants hope the courts will now take the issue into their own hands.

The case alleges that Canada’s current electoral system does not comply with the Canadian Charter of Rights and Freedoms, as well as subsequent rulings on electoral issues, on multiple grounds. Specifically, the application argues that it violates section 3, by denying Canadians effective representation, meaningful participation, and fair and legitimate elections, and section 15, by discriminating against voters and candidates on the basis of political belief.

“The court has in past rulings decided that every Canadian has the right to effective representation and meaningful participation,” Coffin said. “For many Canadians based on their political beliefs, they’re denied effective representation and meaningful participation in the electoral process. . . .Effective representation in the courts means having a voice in the deliberations of government. When more than half of the people vote for candidates that don’t end up in parliament, they’re certainly not represented.”

This election makes the case, the groups argue: 51 per cent of voters cast ballots for candidates that did not end up in Parliament, there were a quarter-million more Conservative voters than Liberal voters but Liberals took 36 more seats than the Conservatives, and NDP voters outnumbered Bloc voters by two to one nationally, yet the NDP will hold fewer seats than the Bloc. Furthermore, they argue, the disproportionate representation of certain political beliefs are concentrated in different regions of the country in ways that are now adding fuel to the fire around national unity.

The two groups involved in the court challenge have hired experienced Toronto-based constitutional lawyer Nicolas Rouleau to represent them. They’re hoping the case will eventually find its way to the Supreme Court of Canada.

If the courts agree with the claims made in the case, they can go as far as to declare Canada’s current electoral system unconstitutional, and order the government to develop a system that complies with the Charter, the applicants say. SOURCE

Court to hear case on whether asylum agreement with U.S. violates charter

OTTAWA — A long-awaited legal look into whether the U.S. remains a safe country for refugees begins today at a Federal Court in Toronto.

At issue is the Safe Third Country Agreement that prohibits people from entering Canada from the U.S. —  and vice versa — at official border crossings and asking for asylum. It was signed by the two countries 17 years ago on the grounds that both are safe places and so those seeking sanctuary should apply in the first country they arrive in.

But as the U.S. has tightened its asylum rules and regulations in recent years, the deal has come under intense scrutiny over concerns that actions taken by the Trump administration no longer make the U.S. a safe harbour for those seeking asylum.

In turn, when Canada rejects people at the border, their charter rights are being violated, advocacy groups and the individual litigant in the case will argue this week as the Federal Court finally hears the challenge begun in 2017.

“Refugee claimants are being detained indefinitely, in conditions that are nothing short of cruel and unusual, simply for seeking protection,” reads one of the memos submitted to the court.

The legal challenge to the agreement was filed after a Salvadoran woman tried to enter Canada at an official border crossing to seek asylum, arguing she was being brutally targeted by gangs at home. She was told she was inadmissible because of the deal. MORE

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