Editorial: To avoid blockades in the future, stop the waffling

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Protesters block the Johnson Street Bridge on Feb. 8. They said they were acting in support of Wet’suwet’en hereditary chiefs who oppose construction of a natural gas pipeline in northern B.C. Photograph By DARREN STONE, TIMES COLONIST

With the Wet’suwet’en protests now largely behind us, for the time being at least, there is an urgent need for a serious discussion about how such matters should be handled in future. It seems quite likely there will be more to come.

We say that partly because when police forces stand aside and allow roads and rail lines to be blocked, it emboldens protesters to ramp up such tactics. But it is also a reality that our governments, provincial and federal, have communicated a sense of unwillingness to become actively involved.

The starting point for any such discussion should be how much is due to Aboriginal groups when resource projects are being planned. The Supreme Court of Canada has said that consultation is obligatory, and that it must be meaningful, not cursory or perfunctory.

But the court has also ruled that First Nations do not have a veto over such projects. That is to say, while they must be heard in a respectful manner, and every effort made to mitigate whatever concerns are raised, their consent is not constitutionally required.

However, in a commentary on this page two weeks ago, a First Nations negotiator wrote that consultation is no longer by itself deemed adequate or sufficient. Consent is now a necessity if there is to be genuine reconciliation.

It is essential that our political leaders make clear where they stand on this. There are 198 First Nations in B.C., and 634 nationwide. If consent, rather than consultation, is to become the ruling principle, that must be said.

In our view, this policy would be tantamount to hanging a “going out of business” sign at the border. What is the likelihood that foreign resource companies will invest in Canada if such a labyrinthine approval process were adopted? Recently, American billionaire Warren Buffett pulled out of a liquid natural gas pipeline project in Quebec, citing “the current Canadian political context.” But what cannot be allowed to happen is continuing confusion as to what the rules are. That merely invites further blockades as protesters test the will and resolve of governments to call a halt.

There is a precedent here. In 1990 an armed standoff between police and members of the Mohawk First Nation in Oka, Ont., led to a police officer being killed. Ownership of land was at stake.

Two factors played a part in this tragedy. First, law-enforcement agencies, seeking to avoid a confrontation, stood aside in the early stages. But that merely allowed the situation to reach a boiling point.

Second, some of the protest leaders began believing their own rhetoric, which became increasingly violent as things dragged on for 78 days. Arguably, had police taken a firm stance earlier, this might not have happened.

There is also a necessity for leaders within the Aboriginal community to talk this matter through. Some of that is already happening.

For First Nations groups cannot complain about high levels of unemployment on remote reserves, with the accompanying dysfunction that causes, if some remain adamantly opposed to projects that can bring jobs to their region.

We understand the sensitivities involved. Numerous land title claims have gone unresolved for decades. Impatience and distrust are entirely reasonable given this fact.

But by slamming the door on resource projects, Aboriginal leaders are not only depriving their own people of much needed work. They are undermining the Canadian economy upon which we all ultimately depend for services such as health care and education. There is no future in that.

First and foremost however, Parliament and provincial legislators must stop waffling and make clear how future blockades will be dealt with. Until that happens, there is an open invitation for more of the same. SOURCE

Vaughn Palmer: Veil of secrecy over Wet’suwet’en deal extends to elected chiefs

VICTORIA — New Democrats remain confident that the agreement with the Wet’suwet’en hereditary chiefs is in good hands, though one of the elected chiefs has yet to even see a copy.Still on the outs is

He’s one of several elected leaders who put out a statement last week complaining that they had been left out of the talks among hereditary chiefs and the federal and provincial governments.George says he’s still being kept in the dark by the hereditary chiefs, before a meeting scheduled for the end of this week.

Wet’suwet’en hereditary leader Chief Woos, centre, Crown-Indigenous Relations Minister Carolyn Bennett, and B.C. Indigenous Relations Minister Scott Fraser arrive to speak to reporters in Smithers on March 1. JONATHAN HAYWARD/THE CANADIAN PRESS 

“I’ve seen part of it that got leaked out,” George told host Carol Off on CBC’s As it Happens, Monday. “But I’m not sure if it’s the right one. They’re keeping it confidential until our meeting on Friday.”

The B.C. minister of Indigenous relations and reconciliation, Scott Fraser, helped negotiate the agreement with his federal counterpart, Carolyn Bennett.

But he’s refused to discuss the contents, saying it was negotiated in camera and it is up to the Wet’suwet’en chiefs to share it with their people.Now it turns out that a prominent Wet’suwet’en leader can’t see a copy either.Is the NDP government comfortable with that?“The Wet’suwet’en hereditary chiefs committed to bringing the proposal to all Wet’suwet’en clan members through their Wet’suwet’en governance process,” said the reply Tuesday from Fraser’s ministry.

“They have advised us that they are engaged in those conversations with their clans, and have held several community meetings to date.”

But in any event, as the ministry made it clear, Fraser does not regard himself as accountable for the ratification process.“It is our expectation that any decision on the proposed arrangement will be based on a legitimate process consistent with Wet’suwet’en laws and governance systems, that is recognized by Wet’suwet’en peoples as representing their nation.“The chiefs are accountable for that ratification process and we do not intend to interfere,” said the ministry in its statement.

Chief George is rightly suspicious of the hereditary chiefs who negotiated the agreement. He is one of the founders of the First Nations LNG Alliance and a strong supporter of the Coastal GasLink project (“of course, I do”) having negotiated a generous benefit sharing agreement with the company.

Most of the hereditary chiefs oppose the pipeline. Nor did the federal and provincial governments oblige them to give up their opposition as part of the one-sided negotiations that led to the agreement.“I don’t think they’re representing the best interests of our people,” said George when asked about the hereditary chiefs. “I think the province and the federal government were wrong to go in there without us elected chiefs.”Now that the process of consulting the Wet’suwet’en people is underway, how does the ministry feel about the continued exclusion of elected leaders like George?“This question would be better directed to the hereditary chiefs,” said the statement. “We are not aware of the specifics of this circumstance. As we understand it, not all clan meetings have yet occurred.

The hereditary chiefs are working to have full conversations and dialogue at their clan meetings, the ministry maintains. “It is our expectation that that process will include elected chiefs. “George is approaching Friday’s meeting without knowing what to expect, both in terms of the contents of the agreement and the attitude of the hereditary chiefs.“I’m not sure of the position of the hereditary chiefs until I start meeting with them and where their stance is going to be,” he told the CBC.“My position is that I’m not signing no title and rights agreement. We need to figure out our governance structure within the hereditary chief system first and foremost. All these protests started because of our governance system. So it must end with our governance system also.”

Still, he tries to remain optimistic. “If we can come together and create a governance system and work together, I think that’s the only silver lining that can come out of this.”Time is running out. In hailing the agreement as a major step forward last week, Fraser said he’d been assured by the hereditary chiefs that the ratification could be concluded in two weeks — meaning by this weekend.But when I asked if that were still the date for completing the process, his ministry hedged.“It was not a hard and fast deadline,” said the statement. “We respect that this is a very important community conversation, and intend to be responsive to the ratification process of the hereditary chiefs, however long it takes.”

Officially, the federal and provincial governments remain optimistic about ratification. But even there, the statement from the B.C. ministry hedged slightly.“If the proposal is ratified by the Wet’suwet’en clan members, we would proceed with the negotiation process, as agreed, on how to implement rights and title and how we will work together as the three orders of government going forward.“Another important piece of this work would be consultation with stakeholders and the public.”Yes, the public.

If and when the deal has been reviewed and ratified by the Wet’suwet’en people — “however long it takes” — the federal and provincial governments plan to make the terms public.

Only then will British Columbians discover what Fraser negotiated and signed on their behalf. SOURCE


Disagreement continues over who speaks for the Wet’suwet’en

How the Wet’suwet’en crisis could have played out differently

Amid escalating tensions and armed RCMP responses, leaders say Canada must abide by the ‘rule of law.’ But what about Indigenous law?

RCMP Unist'ot'en camp arrests red dresses Wet'suwet'en Coastal GasLink

Freda Huson, a matriarch and chief of the Wet’suwet’en, puts charcoal on a supporter’s face at the Unist’ot’en camp in preparation for ceremony. Huson and supporters were awaiting arrest by the RCMP during the enforcement of a Coastal GasLink injunction. Photo: Amber Bracken / The Narwhal

Dozens of arrests. A week-long raid on Wet’suwet’en camps. Grainy videos of armed officers. Doors blocked at the B.C. legislature. Railways stalled across the country.

For a conflict that began in a remote place, the impacts of the Wet’suwet’en hereditary chiefs’ opposition to the Coastal GasLink pipeline are now reverberating across the nation.

As tensions flare and politicians seize on the moment to criticize their adversaries, one has to ask: was this escalation inevitable, or could it have been avoided?

Molly Wickham, or Sleydo, from the Cas Yex House of the Gidimt’en Clan of the Wet’suwet’en, said the escalation around Coastal GasLink “definitely” could have been avoided if the province adapted its decision-making processes to acknowledge and honour Indigenous law and legal customs.

“The province and the federal government have to come to the table and say ‘okay, this is how we are going to adapt our policies and our laws to include, or to adjust for, how you’re living your laws out on your land,” Wickham told The Narwhal on a phone call from Smithers.

“It’s not something we can come and negotiate. It’s something that they need to make space for.”

A 2018 decision released by federal court Justice Sébastien Grammond emphasized that Indigenous law does not exist in opposition to Canadian law, but is a part of it: “Indigenous legal traditions are among Canada’s legal traditions. They form part of the law of the land.”

Indigenous law and ‘the rule of law’

While Premier John Horgan and Prime Minister Justin Trudeau have both responded to the crisis saying Canada must remain a country under “rule of law,” some critics say they are excluding Indigenous legal systems from the equation.

For Chief Nick XEMŦOLTW̱ Claxton of Tsawout First Nation, the persistent failure of colonial governments and project approval processes to incorporate Indigenous perspectives was also on display in the approval of the Trans Mountain pipeline.

Several First Nations argued the federal government failed to engage in good-faith consultations in the pipeline project’s review, but the Federal Court of Appeals struck down their legal challenge.

Claxton said the issue comes down to how Indigenous governance continues to be treated as secondary.

“It’s really that deeper, fundamental recognition and respect for Indigenous laws, Indigenous sovereignty, Indigenous nationhood that needs to happen. And [Wet’suwet’en] is just one example of that not happening,” he said.

Indigenous communities are often forced to fight expensive and protracted battles against major natural resource projects on their territories in the courts. In many cases, projects forge ahead while legal questions of Aboriginal rights and title are still being addressed.

Unist’ot’en Wet'suwet'en RCMP injunction arrest

A woman is arrested as police enforce Coastal GasLink’s injunction at Unist’ot’en Healing Centre near Houston, B.C. on Monday, February 10, 2020. Photo: Amber Bracken / The Narwhal

No ‘cookie cutter’ solution: lawyer

Lawyer Jack Woodward, well-known for drafting Section 35 which enshrines Indigenous rights in the Constitution, has represented numerous First Nations in landmark cases.

Although imperfect, Woodward said Canada’s courts have some of “the most extensive accommodation for Indigenous laws in the world.”

“It’s hard to criticize — we’re in its infancy,” he said. “But it’s as enlightened as you’re likely to get in democratically elected societies in the modern world.”

To Woodward, the Wet’suwet’en crisis could have been avoided had the new trial that the court called for after the 1997 Delgamuukw decision simply taken place to resolve unanswered questions.

In Delgamuukw, the Supreme Court of Canada recognized the Wet’suwet’en and Gitxsan Peoples had never surrendered their land or had their title extinguished. The decision recognized Aboriginal title, the right to actively manage the land and benefit economically from its use, but that such title must be proven in the courts. The decision also ruled Aboriginal title is a communally held right that the province does not have the power to extinguish.

But the Delgamuukw decision left some room for infringements on Indigenous title for industry — agriculture, forestry, mining, hydroelectric power and infrastructure — and general economic development if these infringements can be justified (it’s complicated).

These infringements must be justified through the courts, which has not happened for the Coastal GasLink project.

The court also did not rule on the question of self-government or where exactly the Wet’suwet’en and Gitxsan hold title.

“The appellants effectively argued on appeal, as they did at trial, that by virtue of their social and land tenure systems — consisting of Chief authority, Houses, feasts, crests, and totem poles — they acquired an absolute interest in the claimed territory, including ownership of and jurisdiction over the land,” ruled Chief Justice Antonio Lamer. “The problem with this approach is that it requires proof of governance and control as opposed to proof of general occupation of the affected land. Only the latter is the sine qua non of ‘Aboriginal title.’ “

Lamer said this “substantive defect” in the Chiefs’ arguments required a new trial, which the court welcomed but the Wet’suwet’en have yet to bring forward.

So while the Delgamuukw decision set precedent for recognizing title, other questions were left unanswered in terms of how provincial and federal policy might adapt.

But Woodward brings insight to the Wet’suwet’en situation from another, similar case: Tsilhqot’in Nation v. British Columbia.

That 2014 decision granted the Tsilhqot’in Nation title to 438,000 hectares of its traditional territory. It took the Tsilhqot’in a quarter century to see its legal challenge all the way through to the Supreme Court of Canada. Both the province of B.C. and the federal government fought against the claim.

While it was one of the longest and most expensive court cases in Canadian history, Woodward said since B.C. and Ottawa were ordered to pay their legal fees in the end, the case didn’t wind up costing the Tsilhqot’in.

Woodward said the provincial and federal governments face a “legal revolution” in their ongoing efforts to recognize and incorporate Indigenous governance. For him that makes conflict unsurprising, especially as communities wrestle with the uncomfortable legacy of the Indian Act and jurisdictional issues that can only be resolved internally — such as disagreement within Wet’suwet’en about who are the rightful hereditary chiefs.

Woodward said there is no “cookie cutter” solution going forward, since First Nation governance and customs vary.

He said some of the conflict in B.C. could be resolved if the province and federal government let go of their “urgency” to push forward Coastal GasLink, especially in light of decades-old questions of jurisdiction.

“The gas has been underground for tens of millions of years,” he said. “It could wait a year or two, and the government could offer assistance that has risen from decades of neglect.”

RCMP Unist'ot'en camp arrests red dresses Wet'suwet'en Coastal GasLink

Supporters stand along a sign built across the Morice River bridge near the Unist’ot’en camp near the route of the Coastal GasLink pipeline, Feb. 8. Photo: Amber Bracken / The Narwhal

The B.C. government’s approval of LNG subsidies

MLA Adam SȾHENEP Olsen, the first W̱SÁNEĆ (Saanich) citizen to be elected to the B.C. legislative chamber, and the interim leader of the Green Party, also agrees the Wet’suwet’en conflict was avoidable.

“It is important that people understand that what we see across Canada and on the steps of our legislature was neither inevitable nor unavoidable,” he said to his colleagues in the house on Feb. 12.

Olsen said votes in the spring of 2019 to support the Income Tax Amendment Act, which provides tax breaks to LNG Canada, the project the Coastal GasLink pipeline is needed to feed, fuelled the Wet’suwet’en controversy.

“Every member of this chamber, with the exception of the B.C. Greens and our independent colleague [Andrew Weaver], voted to ignite the tragic situation that we face.”

Olsen, the only party leader to visit Wet’suwet’en territory this year, chastised his colleagues at the legislature after parliament opened Feb. 11 with a speech from the throne, written by the premier’s office but delivered by Lt.-Gov. Janet Austin.

The speech referenced steps towards “meaningful reconciliation” with Indigenous Peoples in B.C., including the passage of Bill 41 to implement the United Nations Declaration on the Rights of Indigenous Peoples.

Austin delivered these words as hundreds of members of the public gathered outside the legislature, supporting a group of Indigenous youth occupying the building’s steps for the previous days in support of Wet’suwet’en hereditary chiefs. The crowd blocked every entrance to the legislature, forcing the cancellation of a red carpet ceremony and gun salute traditionally conducted at the opening of a new session.

In a response speech the following day, Olsen accused the Liberals and NDP of choosing to “barrel ahead, knowing full well that there were existing long-standing and unresolved matters relating to rights and title in the area.”

“Honestly, what did you all expect?” he asked. “Did you really think that after decades of fighting for recognition, the Wet’suwet’en hereditary chiefs would just step aside and let you do whatever you want in their territory?”

“Every vote to prematurely proceed with this project backed the Wet’suwet’en hereditary chiefs into a corner.”

“I will not let them rewrite history to pretend that they are anything but responsible for the painful situation we are seeing playing right now in our landscape, leveraging Indigenous people against each other,” Olsen said.

Indigenous-led environmental assessments could ease tensions

Divides over natural resource projects could also be avoided by bringing Indigenous communities more thoughtfully into the environmental assessment process, where project impacts and environmental concerns can be discussed in the early stages of a project’s life, rather than post-approval or during construction.

Yet recent research found that environmental assessment policies in Canada have failed to adapt in the wake of important legal decisions like Delgamuukw and Tsilhqot’in.

A new study published by Laruen Eckert, Raincoast Conservation Fellow and PhD student at University of Victoria, Chief Claxton and co-authors found Indigenous knowledge has largely been left out of decision-making processes, even after the controversial Impact Assessment Act was passed by the Liberal government in 2019.

The authors analyzed the bill and related literature to see how it engages with Indigenous knowledge. Eckert said the law does mandate the inclusion of Indigenous knowledge but offered “few progressive changes” in how to execute that shift.

The paper concludes “top-down colonial environmental assessment processes” are “inherently at odds with equitable knowledge sharing.”

Eckert said while procedural changes, such as better funding and training opportunities for Indigenous participation in the assessment process, are within reach, the fundamental obstacles of shifting government to treat Indigenous knowledge as equal remains a daunting task.

“The deep-seated stuff is going to take a ton of political will and profound systemic change,” Eckert said.

The research also recommends more Indigenous-led environmental assessments.

Indeed, Tsawout First Nation carried out its own environmental assessment of Trans Mountain that included both data-driven and traditional knowledge. The Tsleil-Waututh First Nation also commissioned its own assessments on topics overlooked in the Trans Mountain like danger to southern resident killer whales, and the Federal Court of Appeals largely dismissed these studies.

“If we accepted those submissions, as a practical matter there would be no end to consultation, the project would never be approved, and the applicants would have a de facto veto right over it,” ruled the court.

But as Claxton addressed the National Energy Board voicing Tsawout First Nation’s opposition to Trans Mountain, he framed things a different way.

“The fact that we, as Saanich, have to testify our concerns to the National Energy Board in a process that was imposed on us about our lands and waters that were literally stolen from us, just to ultimately allow the continued expansion of the colonial capitalistic empire … it seems to me like the colonial mission is still driving forward relentlessly,” he said at a hearing in Victoria in November 2018.

Claxton says changing assessment policies will give space for Indigenous worldviews and respect for non-humans relations like salmon and southern resident killer whales.

“First Nations leading their own environmental assessment processes is a tangible way the state can engage with Indigenous legal systems,” he said.

The Impact Assessment Agency of Canada told The Narwhal the new act includes considerations for Indigenous-led assessments and they are working with First Nations to create a policy framework to ensure consistency across project reviews.

For Wickham, the Wet’suwet’en are doing their part by living out their law on the land. For now, she says the province and the federal government lack the political will to acknowledge, formally and into law, that Indigenous title is not extinguished.

“It’s not going to be easy. It fundamentally challenges the whole system that Canada is based on,” she said. “But there are ways to do it. It’s time the governments put in the time and the efforts to make it work. They have to start somewhere, and this is the most appropriate place to start right now.”



Federal Court to decide fate of Trans Mountain expansion

Judges to rule whether Ottawa did enough to consult with Indigenous peoples before approving project

Pipe for the Trans Mountain Pipeline is unloaded in Edson, Alta., on June 18, 2019. Four First Nations filed court challenges last fall asking justices to overturn approval of the project. (Jason Franson/The Canadian Press)

The Federal Court of Appeal will decide on Tuesday whether the Trans Mountain expansion project lives or dies when it rules on an appeal from Indigenous communities who have long opposed its construction.

Four First Nations from B.C. filed court challenges last fall asking justices to overturn the federal cabinet’s second approval of the project.

The court will issue its decision at 1 p.m. ET.

While construction has already begun on key segments of the expansion, a ruling that sides with the Indigenous applicants would effectively halt all of that work. The court could order the federal government do more to bring Indigenous peoples onside with the $7.4 billion project, among other possible rulings.

The Indigenous communities challenging the project maintain that the Liberal government’s consultation efforts, led by former Supreme Court justice Frank Iacobucci and dozens of Crown consultants, were insufficient because they did not adequately consider their concerns about the risk of an oil spill.

The Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of small First Nations have said the constitutionally necessary consultations were akin to “window-dressing, box-ticking and nice-sounding words.”

The government has said the project, which will twin an existing line and carry nearly a million barrels of oil a day to the B.C. coast for export, is in the national interest and must be built to get Canadian oil to markets overseas.

Ottawa met with more than 117 communities along the project’s route and imposed conditions on the project — based on its consultations — to mitigate environmental risks and assuage worried Indigenous communities.

The Trans Mountain expansion project went through a years-long federal review by the National Energy Board (NEB) and the Canadian Environmental Assessment Agency (CEAA) and has been approved by the federal Liberal cabinet — twice.

Prime Minister Justin Trudeau has said the project is needed because it would help deliver Canadian oil to tidewater for shipment to lucrative markets in Asia, reducing price pressures on Alberta oil producers.

“To the hard-working men and women in natural resource sector — I know you’re facing tough times. We hear you. We’re going to keep working hard to get resources to market,” he said at a recent news conference.

The Federal Court of Appeal has already quashed cabinet approvals once before. In a stunning ruling in August 2018, judges nullified construction permits citing inadequate Indigenous consultation.

Justice Eleanor Dawson, who wrote the decision, did not mince words in her ruling, describing the Trudeau government’s first attempt at consultation a “failure” — and using that word well over 100 times in a 272-page decision.

Dawson called previous federal consultants glorified “note-takers” who recorded concerns without acting.

The previous Crown consultation team believed, erroneously, that it could not add more conditions to the project than those the NEB already imposed.

This time, Iacobucci and his team were empowered to turn feedback into action.

The project has already cleared one major legal hurdle at the Supreme Court. Last month, the top court dismissed B.C.’s appeal of a lower court decision that quashed provincial legislation designed to block the project.

B.C. Premier John Horgan has sought to stop construction of the expansion. His NDP government had drafted amendments to provincial environmental law to all but ban interprovincial shipments of heavy oil — bitumen and diluted bitumen — and other “hazardous substances” through pipelines, including the Crown-owned Trans Mountain.

The amendments would have required companies transporting these substances through B.C. to first obtain provincial permits.

The top court ruled that sort of legislation is unconstitutional because it sought to regulate a project that is clearly under the jurisdiction of the federal government. SOURCE

Indigenous community rejects nuclear waste bunker near Lake Huron

Ontario Power Generation signage is seen facility at the Darlington Power Complex, in Bowmanville, Ont., on May 31, 2019. File photo by The Canadian Press/Cole Burston

An Indigenous community has overwhelmingly rejected a proposed underground storage facility for nuclear waste near Lake Huron, likely spelling the end for a multibillion-dollar, politically fraught project years in the making.

After a year of consultations and days of voting, the 4,500-member Saugeen Ojibway Nation announced late Friday that 85 per cent of those casting ballots had said no to accepting a deep geologic repository at the Bruce nuclear power plant near Kincardine, Ont.

“We were not consulted when the nuclear industry was established in our territory,” SON said in a statement. “Over the past 40 years, nuclear power generation in Anishnaabekiing has had many impacts on our communities, and our land and waters.”

The province’s giant utility, Ontario Power Generation, had wanted to build the repository 680 metres underground about 1.2 kilometres from Lake Huron as permanent storage for low and intermediate-level radioactive waste. The project was tentatively approved in May 2015.

While Kincardine was a “willing host,” the relative proximity of the proposed bunker to the lake sparked a backlash elsewhere in Canada and the United States. Politicians, environmentalists and scores of communities expressed opposition.

Successive federal governments have withheld final approval. In August 2017, then-environment minister Catherine McKenna paused the process — the last in a string of delays for the project — to ensure buy-in from Indigenous people in the area.

The generating company, which insisted the stable bedrock would safely contain the waste, items such as contaminated reactor components and mops, said it respected SON’s decision.

“OPG will explore other options and will engage with key stakeholders to develop an alternate site-selection process,” Ken Hartwick, head of OPG, said in a statement shortly after the vote was announced. “Any new process would include engagement with Indigenous peoples as well as interested municipalities.”

The apparent end of the road for the project comes shortly after the federally-mandated Nuclear Waste Management Organization said it was making progress toward choosing a site for storing millions of far more toxic spent nuclear fuel bundles.

The organization, comprising several nuclear plant operators, said it had struck deals with landowners in South Bruce — about 30 minutes east of Kincardine — that will allow it to begin site tests. The only other site under consideration for high-level waste storage is in Ignace in northern Ontario.

Despite the rejection of OPG’s proposal, the utility said it planned to continue a relationship “based on mutual respect, collaboration and trust” with the Saugeen Ojibway Nation, which comprises the Chippewas of Saugeen First Nation and the Chippewas of Nawash Unceded First Nation.

Chippewas of Saugeen Chief Lester Anoquot called the vote — 170 for and 1,058 against — a “historic milestone and momentous victory” for the community.

“We worked for many years for our right to exercise jurisdiction in our territory and the free, prior and informed consent of our people to be recognized,” Anoquot said. “We didn’t ask for this waste to be created and stored in our territory.”

At the same time, Anoquot said, the vote showed the need for a new solution for the hazardous waste, a process he said could take many years.

Ontario depends heavily on nuclear power for its electricity but a permanent storage solution for the increasing amounts of waste now stored above ground has proven elusive. The radioactive material, particular from used fuel, remains highly toxic for centuries.

The utility insists exhaustive science shows a repository in stable and impermeable rock offers the best solution.

“Permanent and safe disposal is the right thing to do for future generations,” Hartwick said. SOURCE

Consultation or consent?

What is adequate consultation? When has consent been given?

You may have heard the news that the Federal Court of Appeal will soon hear six legal challenges to the approval of the Trans Mountain pipeline project. The challenges will once again focus on the “consultation” with Indigenous peoples directly impacted by this project.

Before taking power in 2015, Justin Trudeau promised his government would not only consult First Nations, but would obtain consent from communities before projects like this one could proceed.

There has never been clear consent for the Trans Mountain pipeline.

The Federal Court has already ruled once that public consultation for this 1,150 km pipeline expansion, which would take bitumen from the tar sands in Alberta to British Columbia for export, was inadequate, and it overturned the original approval for the project.

The federal government, now owner of the pipeline thanks to the use of more than $4.5 billion of public money (with another $9.3 billion expected to be spent on construction costs), started a second consultation process in June. But when the government announced it was approving the pipeline project again, Indigenous peoples argued that the outcome of that consultation was predetermined. They say the government, as owner of the pipeline, has a financial interest that overshadows the public interest.

We should all ask: what is adequate consultation? When has consent been given? Should consultation that simply gathers the feedback people provide be accepted, or does the government have a responsibility to act on when impacted Indigenous nations say no?

These legal appeals are examples of the lengths Indigenous peoples need to go to prove their rights are being trampled and how difficult it is to hold the government and corporations accountable to the law. On the flip side, land and water defenders are being unjustly jailed and fined for simply voicing their dissent. This is a double standard of law enforcement that is difficult to reconcile.

The court ordered the legal challenges be heard quickly and rulings are expected within months.

Thanks to the generous support of people like you, the Council of Canadians is working in solidarity with Indigenous peoples and concerned people and communities to stop this pipeline.


Using Police to Belittle Indigenous Rights


A tiny tweak in California law is creating a strange thing: carbon-negative oil

Photo: Carbon Engineering

There is a set of technologies, scientists say, without which the world is unlikely to avert climate crisis. These so-called “negative-emissions technologies” have been discussed by climate scientists in academic journals for many years. But now, entrepreneurs at three startups—one each in the US, Canada, and Switzerland—are vying to bring the most promising of those technologies to market. They will potentially offer the world a new set of tools to stave off climate catastrophe—a reverse gear on a car headed for the cliff.

…Canadian startup Carbon Engineering is pairing with US oil giant Occidental Petroleum to build a plant by 2022 that will capture and bury 500,000 metric tons each year. The plant is expected to cost hundreds of millions of dollars.

Rarely have energy or climate technologies scaled up at that pace—many orders of magnitude in less than five years. Rarer still is the likelihood that this plant will make money. Most early energy technologies lose money. Pulling it off took the genius of a Harvard professor, the climate ambition of an oil CEO, and the long-term thinking of California lawmakers.

Sucking it up

David Keith is a professor at Harvard University working on geoengineering. SOURCE: Carbon Engineering

David Keith is a no-nonsense academic at Harvard University studying geoengineering, a set of ideas to manage the Earth’s climate on a planetary scale. In 2009, he co-founded Carbon Engineering with Geoff Holmes, a student from his research lab.

The idea that carbon dioxide can be captured from the air we breathe is decades old. Such systems have been used in submarines for a long time. The Harvard pair’s innovation was to make the technology cheap enough to deploy it at scale, and maybe help dial down the temperature of the planet.

Carbon Engineering first set up shop in Squamish, a small town north of Vancouver in Canada. Bill Gates became one of its earliest backers. By 2015, Keith, Holmes, and a handful of employees had built a working prototype that could capture up to one metric ton of carbon dioxide each day.

While six years is a long time in a software company’s life, it’s not very long for a chemical-engineering startup. To get there so fast, Carbon Engineering did two things. First, it used known technologies and combined them to handle different aspects of the capture process. Second, it designed its plant to use off-the-shelf equipment instead of custom-built parts.

Here’s how the plant works: A large fan sucks in huge volumes of air and passes it over corrugated sheets. A chemical solution, which reacts with carbon dioxide in the air, is poured onto the sheets. The carbon-rich solution is then transported to a container where it’s brought in contact with quicklime (or calcium oxide) that reacts with the mixture to form pellets of limestone (or calcium carbonate). In a third container, these limestone pellets are heated to about 1000°C to create quicklime that can be reused and release carbon dioxide as a pure stream of gas. The greenhouse gas can then be injected underground in depleted gas fields or converted into something useful.


(To heat the kiln to 1000°C, natural gas is burned in pure oxygen and the carbon dioxide produced in the process is also captured. There are also plans to use renewable electricity to heat the kiln, cutting out the use of any fossil fuels.) MORE

Trans Mountain approval met with promised resistance by First Nations

Trans Mountain
Justin Trudeau announced Tuesday the government has fulfilled its duty to consult Indigenous peoples and will move ahead with the Trans Mountain pipeline despite opposition from several First Nations who say they do not consent to the project.

The Trudeau government has approved the Trans Mountain pipeline expansion and is promising to have shovels in the ground this summer.

But First Nations are responding swiftly with commitments to resist the pipeline in order to protect the land, Indigenous rights, and to address the climate emergency.

The long-awaited decision was announced Tuesday in Ottawa, following months of renewed consultations with Indigenous communities as ordered by the Federal Court of Appeal last August.

Prime Minister Justin Trudeau justified the government’s decision on the basis it “has the potential to create thousands of solid middle class jobs for Canadians,” and that expanding the existing Trans Mountain pipeline’s oil sands output remains within the government’s carbon emission targets under the Paris agreement.

On Monday parliament passed a non-binding motion from Environment and Climate Change Minister Catherine McKenna declaring a climate emergency in Canada.

Trudeau announced Tuesday the government will work with Indigenous stakeholders who have expressed interest in purchasing the pipeline in part or in whole.

He said up to 100 per cent of the pipeline could end up in Indigenous investors’ hands.

But the government’s consultations with First Nations, and its interpretation of free, prior and informed consent — a principle it has vowed to respect to through its commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) — fall far short of Indigenous peoples expectations.’

Speaking at a press conference in Vancouver Tuesday, Tsleil-Waututh Nation (TWN) Chief Leah George-Wilson responded to the government’s decision to approve the pipeline with a promise of renewed litigation in the Federal Court of Appeal.

“We believe that the consultation, once again, missed the mark set by the Supreme Court of Canada — and we will defend our rights,” she said.

“TWN continues to withhold our free, prior and informed consent and are prepared to use all legal tools to ensure our governance rights are respected.”

First Nation leaders in B.C. also predicted a swell of grassroots resistance if the government attempts to begin construction in territories where consent has not been granted. MORE


Trans Mountain approval comes with eight new accommodations to address First Nations concerns
Protests, legal challenges planned to block Trans Mountain pipeline expansion
Angry protesters in Vancouver slam approval of “devastating” Trans Mountain pipeline expansion
B.C. government open to continuing Trans Mountain fight in court, premier says
Trans Mountain pipeline: will it happen?
Tsleil-Waututh Nation to appeal Trans Mountain expansion once again
Vaughn Palmer: Down to the last tool in the tool box, the legal bills keep climbing for Horgan in pipeline fight

Trans Mountain consultation approach ‘fatally flawed’ even with extension, says First Nations leader

The Trudeau government is in a clear conflict of interest as owners of the TransMountain pipeline and their duty to consult with the traditional legitimate title holders. Expect litigation and more delay.

‘Extending the timeline doesn’t address all these issues and approach to consultation,’ says Judy Wilson

Kukpi7 Judy Wilson, elected leader of the Neskonlith band and a member of the executive branch of the Union of B.C. Indian Chiefs, sent a letter to Prime Minister Justin Trudeau critical of the consultation process on the Trans Mountain pipeline. (Chantelle Bellrichard/CBC)

Even if the time period for consultation with Indigenous groups over the expansion of the Trans Mountain pipeline is extended by a few weeks, “it still doesn’t make up for the approach and the flawed way the consultations are being done,” says one B.C. First Nations leader.

Kukpi7 Judy Wilson, elected leader of the Neskonlith band and a member of the executive branch of the Union of B.C. Indian Chiefs, sent a letter to Prime Minister Justin Trudeau earlier this week in which she described the consultation process as “fatally flawed” and detailed several critiques of the process that’s currently underway.

Amarjeet Sohi, Minister of Natural Resources, announced Thursday the consultation timeframe would be extended by a month, based on requests from Indigenous groups and advice from former Supreme Court of Canada justice Frank Iacobucci who is leading the government’s efforts on consultation for the proposed expansion.

“Extending the timeline doesn’t address all these issues and approach to consultation,” said Wilson.

Among her criticisms is that Canada is in a “clear conflict-of-interest” when it comes to fulfilling its obligations to Indigenous groups, especially since it purchased the project from Kinder Morgan.

“As pipeline owners, they have a constant bias now because they’re looking at the interest of the pipeline as a national interest versus their Crown role for consultation to our Indigenous Peoples,” said Wilson in an interview Thursday.

She is also critical of the consultation process itself, because “it’s still bypassing our proper title holders, who are our people … they’re relying mainly on the band construct, which the federal government created,” she said.



British Columbia Court of Appeal Reaffirms Duty to Consult not a Duty to Agree

Image result for new prosperity mine

In a unanimous decision, William v. British Columbia (Attorney General), 2019 BCCA 74, the British Columbia Court of Appeal affirmed that a proposed exploratory drilling program associated with the New Prosperity Mine could proceed after its approval by the Provincial government was found to be reasonable.

In dismissing the appeal, the Court commented that not accepting the position of an Indigenous group who holds an honest belief that a project should not proceed does not mean that the process of consultation is necessarily inadequate or that the Crown did not act honourably in reaching a decision.

Sometimes parties are unable to resolve their differences and work towards reconciliation because of fundamental disagreements. MORE