Activists Need To Talk Climate Change Without Getting Sued, Top Court Hears

Supreme Court heard arguments this week about strengthening legislation designed to stop strategic lawsuits.

Members of the Tsilhqot'in First Nation hold a rally outside the federal court in downtown Vancouver,...
Members of the Tsilhqot’in First Nation hold a rally outside the federal court in downtown Vancouver, Jan. 30, 2017. The rally was to bring attention ahead of a federal court case involving Taseko Mines. THE CANADIAN PRESS/Jonathan Hayward

When the Wilderness Committee learned that a large Canadian mining company had proposed an open-pit copper and gold mine and tailings pond in the middle of B.C.’s wilderness, it opposed the project with all its might.

For the grassroots, non-profit environmental group that meant getting people fired up.

“We don’t have many tools. We don’t have a lot of money. All we have really is our ideas and words and we are used to fighting it out that way,” Joe Foy, national campaign director, told HuffPost Canada.

The Wilderness Committee published a series of articles in early 2012 about Taseko Mines’ proposed project, and its threat to wild salmon, rainbow trout and grizzly bears, how it would pollute the region’s water and the strong opposition of the nearby Tsilhqot’in Nation.

In response, the multimillion-dollar company slammed the group with a defamation suit, triggering a five-year court battle that cost hundreds of thousands of dollars in legal fees. Taseko claimed in court documents that the online publications portrayed it as having a “callous disregard” to the environment, which damaged its reputation.

The Wilderness Committee was aware of the “chilling effect” the lawsuit could have on it and other groups, so it fought it, said Foy. It argued Taseko had launched a Strategic Lawsuit Against Public Participation, also called a SLAPP suit, and eventually a judge dismissed the case.

SLAPP suits are used by powerful entities, including corporations and individuals, to stop critics, often social and environmental activists, from speaking out, according to the Business and Human Rights Resource Centre. Quebec, Ontario and most recently B.C. have passed legislation to deter SLAPP suits from being filed in the first place, and to allow judges to dismiss cases early in the court process.

Environmental groups say anti-SLAPP laws that protect speech are critical to the fight for climate action. That’s why two prominent organizations, Greenpeace Canada and Ecojustice, went to the Supreme Court Tuesday to argue for more protection.

If climate activists have the threat of being sued over their heads, then our prospects of addressing climate change go way down. —Josh Ginsberg, Ecojustice

Canada’s highest court is currently considering two unrelated defamation cases, which the defendants argue are SLAPP suits. For the first time it is fine-tuning the law and weighing in on how it should be interpreted. Ecojustice and Greenpeace are interveners, alongside civil rights groups, media organizations and a clinic for women experiencing violence.

“Climate change is subject to a huge amount of activism including a lot of speech that is often controversial but essential for us to have a robust debate,” Ecojustice lawyer Josh Ginsberg told HuffPost.

“If climate activists have the threat of being sued over their heads, then our prospects of addressing climate change go way down. It drains their resources and takes the focus off of the real issues.”

Greenpeace is currently fighting what it calls a SLAPP suit by a forestry company, and Ecojustice has represented environmental groups in similar cases.

Under Ontario’s anti-SLAPP legislation, a defendant in a lawsuit can request it be dismissed at any time, if what they said could be considered in the public interest. Then it’s up to the plaintiff to prove how the defence’s argument could fail, and if the damages outweigh the public interest.

During this process, both environmental groups want judges to consider the context in which a disputed statement was made.

“We want the court to think about what the biggest societal implication is here,” said Greenpeace lawyer Priyanka Vittal. “Is this going to create a chilling effect where no other grassroots organizations are going to speak out because they’re too scared?”

The court could look at a company’s history filing lawsuits, the power imbalance, and where the defendant made the claim, such as during a public consultation process, according to Ecojustice’s factum. It wants judges to recognize that statements related to environmental decisions and policymaking are presumptively in the public interest.

The Wilderness Committee, for example, posted its articles when the federal government was considering and requesting comments about Taseko’s proposal, and that should’ve helped their case, Foy said.

“I really worry about the individual who says something at a local meeting about a development next to an elementary school, and then the developer is dragging them through the courts,” Foy said. “It’s terrifying.”

The federal government eventually rejected Taseko’s mine because of the environmental harm it would case, but it’s now permitted to do exploratory drilling.

Even today, however, the Wilderness Committee is still impacted by the lawsuit. Its liability insurance covered close to $200,000 in legal fees, which Taseko doesn’t have to pay back, but it is now saddled with insurance fees nearly $7,000 more than before the lawsuit, Foy said.

But he’s glad they fought it all the way to the end.

“We are really proud of what we did, and how we did it,” said Foy. “It’s our responsibility to speak out clearly and strongly about these industrial projects.” SOURCE

 

Trans Mountain pipeline saga looks set to drag into 2022

Construction may have resumed and Trudeau has promised to see TMX through, but it’s the legal delays that look set to hold everything back

With the Federal Court of Appeal set to hold its second hearing on approval of the Trans Mountain Pipeline in December, it may seem that the end is near for the long-running saga.

But the perception could well be illusory. While Prime Minister Justin Trudeau’s promise that his minority government will see the pipeline through remains fraught with political difficulties, it is the inexorable delays in the legal process that may present the greatest obstacle to the project’s fruition.

In August 2018, the Federal Court of Appeal (FCA) overturned the cabinet’s November 2016 order-in-council approving the pipeline, which was based on recommendations made by the National Energy Board (now the Canadian Energy Regulator) some six months earlier.

While the court found that Canada had acted in good faith and selected an appropriate consultation framework, the duty to consult had not been adequately discharged and “fell well short of the mark” by failing “to engage, dialogue meaningfully and grapple with the real concern of the Indigenous applicants so as to explore possible accommodation of (their) concerns.” SOURCE

Ontario Government Passes Wage Restraint Legislation

Image result for wage restraint legislation

On November 8, 2019, the Provincial Government passed Bill 124, “the Protecting a Sustainable Public Sector for Future Generations Act, 2019” (“Bill 124”). Bill 124 imposes wage restraint in the public sector for both unionized and non-unionized employees. The purpose of this legislation is “to ensure that increases in public sector compensation reflect the fiscal situation of the Province, are consistent with the principles of responsible fiscal management and protect the sustainability of public services.”

Bill 124 applies to certain public sector entities, including not-for-profit entities that received at least $1,000,000 in funding from the Ontario Government in 2018.

Bill 124 creates a 3 year “moderation period” during which time compensation increases for individual positions must be limited to no more than 1% per year. For non-unionized employers the 3 year “moderation period” begins on a date selected by the employer after June 5, 2019 or January 1, 2022, whichever occurs first. Accordingly, employers have some degree of flexibility in determining when the wage restraints begin. For unionized employers, the “moderation period” generally begins after current collective agreements expire. As such, the wage restraint measures do not impact current collective agreements.

The restraint measures in Bill 124 do not apply to prohibit an employee’s salary rate from increasing due to (a) length of employment; (b) an assessment of performance; or (c) the employee’s successful completion of a program or course of professional or technical education. As an example, wage progression grids in a Collective Agreement based on seniority will not be impacted.

The Government included anti-avoidance provisions in Bill 124 to prohibit employers from providing ‘catch-up’ payments to employees (either before or after the “moderation period”).

It is important to note that Bill 124 offers protection for employers against claims made by employees (e.g. constructive dismissal) who may be adversely impacted by the employer’s compliance with the wage restraint measures.

Bill 124 is controversial amongst labour unions who have signalled that they may challenge Bill 124 on constitutional grounds in the Courts. However, as of today, Bill 124 is law and employers are obliged to comply. Accordingly, public sector employers should immediately review their compensation policies and practices. Non-union employers should take advantage of the flexibility offered by Bill 124 in deciding when the “moderation period” should begin. For those employers entering collective bargaining, recognition must be given to the fact that the “moderation period” will apply going forward. As such, negotiations must respect the 1% limit set out in the legislation.

SOURCE

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German wind power blown off course

The German government and wind energy industry representatives have been meeting recently to hammer out a way of reinvigorating the sector. But the future of this once thriving industry is blowing in the wind.

Wind turbine

Hermann Albers, the president of the German Wind Energy Association (BWE), is quite conviced that the government has made a “fatal mistake” with the introduction of a minimum distance for wind turbines of 1,000 meters (1,093 yards) from residential areas. And German consultancy group Prognos believes that the German onshore wind power’s  “success story is currently in danger” amid growing pressure on the sector.

As the warning signs for the German wind power industry are flashing red, the recent meeting between industry and government officials at least created a “better understanding” of the problems BWE said, but key issues remain unresolved.

The share of renewable energy in Germany’s energy consumption reached a record of 43% in the first nine months of 2019, figures from utilities association BDEW and research foundation ZSW show.

But the headline figure conceals the fact that nationwide only 35 new windmills with a combined output of 290 megawatts (MW) were installed in the first half of 2019, down 80% from the same period of 2018 and the lowest in two decades. The last six onshore wind power auctions have also been undersubscribed. In September, bids were submitted for only 35% of the 500 megawatts (MW) on the block.

German wind power construction in the doldrums

Growth but not fast enough?

Marco Lange from Siemens Gamesa Renewable Energy says that the German wind energy market is “historically unique” because it is dominated by more small local project developers compared to other markets.

“With the change to the auction system many of those find it increasingly difficult to participate successfully in the market,” he told DW, which has increased the level of regulation and made permissions from authorities take too long.

“Moreover, often judicial action is taken against the permissions, for example by citizens who do not want turbines in their neighborhood or by environmental activists,” Lange says.

The German Renewables Association (BEE) estimates that an annual installation of 4.7 gigawatts (GW) of onshore wind is needed to meet Germany’s wind power targets.

According to the government’s long-term plan, renewable energy will account for at least 65% of the country’s electricity needs by 2030. Wind energy has accounted for more than a quarter of electricity production so far this year and solar power just 10%. According to a recent study by the Agora Energiewende pressure group, about three-quarters of the additional capacity needed by 2030 will have to come from wind.

Infografik Windkraft Zubau 2018 weltweit EN

Job cuts

Some 27% of jobs in Germany’s wind industry could be lost by 2030 because of a stagnating expansion of onshore wind turbines, according to a study published by VDMA Power Systems. It has estimated that job losses by the end of 2019 will have jumped to 40,000. If problems with the approval of new wind plants continue, the decline in domestic business would reduce annual gross value added in Germany by €700 million ($776.4 million), VDMA says.

Half of Europe’s 300,000 wind energy jobs are in Germany. Enercon, one of the largest German manufacturers of wind turbines, recently cut 3,000 jobs, while the turbine installation slump has also hit rival manufacturers, such as Vestas and Siemens Gamesa.

Just 400 MW of new wind farm permits were awarded in the first quarter of this year, well below historical levels. There are also around 11 GW of wind farm projects stuck in the permitting process in Germany. That’s roughly equivalent to the entire installed wind capacity of Denmark and the Netherlands combined.

Andrew Canning, PR Manager at think tank Wind Europe, told DW that slow permissions “seriously undermines Germany’s ability to meet its 2030 renewables target,” with the new 1,000-meter rule raising even more problems. “Other European countries apply a 500-meter rule or even less,” he says, and adds that an opt-out clause allowing regional states and municipalities to ignore the minimum distance “complicates matters.”

The future looks bright for Germany’s biggest surface coal mine. Even as the country introduces climate protection measures and switches to renewable energy sources, its dependence on coal-fueled power plants is unabated. Continued reliance on coal means Germany is unlikely to meet its 2020 emission goals. That’s not good for the environment, but the view from the Hambach mine remains impressive.

According to Canning, the permitting process for new wind farms was the “underlying problem,” which has led to permissions that used to take just 10 months now taking over two years. “Plus there is a lack of staff to process the applications, especially at the Bundesland level,” he says.

Delays and legal disputes have increased commercial risks for the industry, as they are scaring off potential investors. This is already showing in the number of wind power projects tendered this year. Of the more than 1,350 MW offered by the government so far in 2019, only 746 MW materialized due to a lack of participation in the public auction rounds.

“Economically and technologically, this is totally misguided,” Lange says. “We see already an ongoing decline of companies being active in the wind industry. This has an effect on the value chain in the country up to reduction of local production of key components.”

Josko Radeljic, head of investor relations at the Baywa consultancy, believes that the government must act forcefully now to ensure that “public acceptance of wind power remains high in general.” Government measures to increase offshore wind energy production, and plans to improve benefit schemes for local communities from wind profits are going “in the right direction, he says, just to add: “In sum [they are] not ambitious enough to address the situation.” SOURCE

Teamsters point finger at CN Rail over propane shortage from strike

Garneau says train with propane heading to Quebec, repeats support for collective bargaining


Striking Canadian National Railway workers picket in front of the company’s Taschereau railyard Friday in Montreal. (Ryan Remiorz/The Canadian Press)

The union representing striking Canadian National Railway workers said early Friday there was “no substantive progress” in talks aimed at ending the dispute, and they hit back at what they characterized as a “fabricated” narrative of a propane shortage that has emerged through politician statements and media reports.

As the strike entered its fourth day, the Teamsters Canada Rail Conference (TCRC) said there are still hundreds of employees on the job operating trains, and that what those trains carry is a decision made by CN.

Lyndon Isaak, TCRC president, speculated that the company may be throttling the supply of propane.

“CN is far from operating at full capacity, but we believe there are enough trains going around to allow the company to supply propane to Ontario and Quebec,” said Isaak. “The question is whether CN refuses to transport propane to create a crisis and force a special back-to-work law.”

CN said in a statement it was doing the best it can given the limited resources in a strike scenario.

“CN has a small pool of qualified managers that only allows the company to operate at approximately 10 per cent of normal service across its extensive 22,000-kilometre-long Canadian network safely,” the corporation said. “Currently, very limited amounts of various commodities are moving across the country. This includes container traffic to keep Canada’s ports fluid to be able to return to normal operations after the strike.”

Across the country, politicians and industry leaders have raised the prospect of critical shortages resulting from a prolonged strike that would impact a number of economic sectors. MORE

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Doug Ford ‘proud’ of decision to tear up hundreds of green energy contracts

 WATCH ABOVE: The NDPs are asking Ontario’s auditor general to launch an investigation into the cost of the Ford government ripping up green energy contracts. Travis Dhanraj reports. (Nov. 20, 2019) 

TORONTO – Premier Doug Ford said Thursday he is “proud” of his decision to tear up hundreds of renewable energy deals, a move that his government acknowledges could cost taxpayers more than $230 million.

Ford dismissed criticism that his Progressive Conservatives are wasting public money, telling a news conference that the cancellation of 750 contracts signed by the previous Liberal government will save cash.

READ MORE: Ford government’s cancellation of green energy deals costs Ontario $231 million

“I’m so proud of that,” Ford said of his decision. “I’m proud that we actually saved the taxpayers $790 million when we cancelled those terrible, terrible, terrible wind turbines that really for the last 15 years have destroyed our energy file.”

Later Thursday, Ford went further in defending the cancelled contracts, saying “if we had the chance to get rid of all the wind mills we would.”

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The NDP first reported the cost of the cancellations Tuesday, saying the $231 million figure was listed as “other transactions”, buried in government documents detailing spending in the 2018-2019 fiscal year.

The Progressive Conservatives have said the final cost of the cancellations, which include the decommissioning of a wind farm already under construction in Prince Edward County, Ont., has yet to be established.

The government has said it tore up the deals because the province didn’t need the power and it was driving up electricity rates, and the decision will save millions over the life of the contracts. Industry officials have disputed those savings, saying the cancellations will just mean job losses for small business.

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NDP Leader Andrea Horwath has asked Ontario’s auditor general to investigate the contracts and their termination fees. She called Ford’s remarks on Thursday “ridiculous.”
“Every jurisdiction around the world is trying to figure out how to bring more renewables onto their electricity grids,” she said. “This government is taking us backwards and costing us at the very least $231 million in tearing these energy contracts.” SOURCE

Jane Philpott takes on a new role with Nishnawbe Aski Nation

Jane Philpott, the former Indigenous Services minister, will be a special adviser in health care to Nishnawbe Aski Nation, the organization that represents 49 communities in Treaty #9 and parts of Treaty #5 in northern Ontario.
Jane Philpott is living proof of the adage that when one door shuts, another one opens — and sometimes it opens to the direction you were always meant to travel in.

Philpott, the former Liberal MP who resigned from cabinet over Prime Minister Justin Trudeau’s treatment of now Independent MP Jody Wilson-Raybould during the SNC-Lavalin scandal, is going to work for Nishnawbe Aski Nation.

The former Indigenous Services minister will be a special adviser in health care to the organization, which represents 49 communities in Treaty #9 and parts of Treaty #5 in northern Ontario.

Although it covers an area roughly the size of France, NAN territory includes just one hospital — in Moosonee — and health care services are nearly non-existent. Children who live there have died from strep throat, a treatable illness, due to a lack of qualified health workers and medications. A lack of mental health care has also led to desperately high rates of youth suicide.

“This is about the most meaningful thing I can imagine doing,” Philpott said on Thursday. “I will be at the service of NAN and where they see I can make a contribution.”

Philpott believes the time is right to build a health system in the north that’s run by First Nations.

NAN Grand Chief Alvin Fiddler and Ovide Mercredi, the former national chief of the Assembly of First Nations, have led the drive to wrest control of health care funding away from Ottawa and into the hands of NAN communities. Mercredi has often said that “white men in ties” should not be making decisions on First Nations health care, but it remains a federal responsibility under the Indian Act, a racist piece of legislation that has been on the books since 1876. NAN has been in negotiations for the last several years with the federal and provincial governments on an initiative known as Health Transformation to transfer health-care responsibilities.

Now Philpott will be joining that fight after losing her re-election attempt in the riding of Markham-Stouffville. “This is a good spot for me to jump in to,” she said. “Time will tell if I ever go back to politics as an actual politician.” SOURCE