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.


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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.

CARBON ENGINEERING

(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

RELATED:

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.

MORE

RELATED:

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

Canada: Trans Mountain Decision: Application Of Existing Principles Or Evolving Standard?

Expectation  that courts will continue to place an increasing emphasis on the meaningfulness of consultation

two person writing on paper on brown wooden tableNik MacMillan@nikarthur /unsplash

In 2004, the Supreme Court of Canada recognized that there is a duty to consult Indigenous groups whenever the Crown is contemplating conduct that could adversely impact asserted or established Aboriginal or treaty rights. Since this time, there have been hundreds of court cases in which Indigenous groups have gone to court to challenge the adequacy of consultation and/or accommodation for certain Crown decisions, particularly in the context of resource development. This has been a challenging area for proponents, with many feeling that the standard to be met is a continually moving goal post.

In 2018, the most widely discussed duty to consult case was the Federal Court of Appeal’s (FCA) decision to quash the Trans Mountain Expansion Project (TMX Project) based, in part, on inadequate consultation with Indigenous groups. While some feel that the Court simply applied existing duty to consult jurisprudence, a closer examination arguably reveals that the FCA applied a stricter standard on certain issues, including accommodation, the standard of review, and the adequacy of written reasons. While it remains to be seen whether other courts will take a similar approach to these issues in the future, the decision highlights the challenges that proponents can face with an evolving standard and some measures that should be taken to minimize risk going forward.

Background on the TMX Project and the FCA Decision

The TMX Project is a proposed twinning of an existing pipeline from Edmonton, Alberta to Burnaby, B.C. designed to bring more of Alberta’s oil to tidewater for export to Asian markets. The project involves the construction of 987 kilometres of new pipeline segments and associated facilities, with approximately 89% of the pipeline route running parallel to existing disturbances. The operation of the proposed expanded pipeline system would increase overall capacity from 300,000 barrels a day to 890,000 barrels a day. It is also projected to increase the number of tankers at the Westridge Marine Terminal in Burnaby from approximately five per month to 34 per month. The tanker traffic would be within an established shipping route with significant vessel traffic. MORE

Monique Keiran: First Nations deserve a role in species-at-risk strategies

A11-0605-orcas.jpg

VICTORIA, B.C.: OCTOBER 3, 2012-A pod of orcas swim near Pender Island in Victoria, B.C. October 3, 2012. (DARREN STONE, TIMES COLONIST). For City story by Judith Lavoie. Photograph By DARREN STONE, TIMES COLONIST

Half of the plans developed in Canada over the past 13 years for the recovery of threatened and endangered species might lack constitutionally required Indigenous consultation, according to a recent study by Carleton University researchers.

The researchers examined recovery strategies and management plans developed from 2006 to 2017 for species considered endangered, threatened and of special concern under the federal Species at Risk Act. Fifty-two per cent of the documents showed no evidence of Indigenous involvement, despite a legal requirement that governments consult with Indigenous Peoples.

Last year’s ruling by the Federal Court of Appeal is one example. The court reversed approval of the Trans Mountain pipeline expansion and ordered the federal government to re-do parts of its consultation with Indigenous Peoples, as well as have the National Energy Board consider the environmental impacts of increased tanker traffic off the coast resulting from the expanded pipeline. Before the ruling, it became clear that the government had green-lighted the project before its consultations with B.C.’s First Nations were complete.

Learning from that mistake, the B.C. government’s proposed environmental-assessment rules include, for the first time, specific requirements for consultation with First Nations. The proposed legislation refocuses the assessment process on Indigenous consent, early engagement, clear timelines and consideration of other issues related to climate change, pollution targets and the effects of projects on future generations. MORE

 

 

Small Modular Nuclear Reactors – The Pied Piper Strikes Again!


Source: ‘A Canadian Roadmap for Small Modular Reactors’ (NRCan, November 2018).

Without any adequate consultation with Canadians,
including First Nations, the Government of Canada is
unilaterally moving ahead with the development and
deployment of a whole new generation of nuclear reactors
all over Canada, especially in the north, directly impinging
on indigenous lands and rights.

These “small modular nuclear reactors” (SMNRs, or SMRs) will ALL generate post-fission radioactive wastes of all varieties: the high
level waste which is the irradiated nuclear fuel, and the
low & intermediate level wastes such as decommissioning
wastes (radioactive rubble from dismantling shut-down
reactors or — more likely — just grouting them in place.)

Meanwhile we have learned that the CNSC has been trying
to “rig the game” by getting the Canadian Government to
EXCLUDE most of these new reactors from the requirement
of having a FULL PANEL Environmental Assessment
Review. This has been done by CNSC lobbying government
officials behind closed doors without any public process,
debate, oversight or discussion. MORE

RELATED:

Cost to US taxpayers to clean up nuclear waste jumps $100 billion in a year

Ontarians are voicing dissent by the thousands. Take Action!

While the provincial government continues to roll back progress made on environmental protection, Ontarians have made it clear that the vast majority want decisive climate action.

Before the government passed the legislation to eliminate the cap-and-trade system, a consultation process received 11,000 comments with more than 99 per cent in support of putting a price on harmful emissions and maintaining the cap-and-trade system that supports investment and clean energy job creation. Thank you to those who submitted comments. It’s unacceptable for the government to scrap a program that has such overwhelming public support.

You have another chance to tell the government that its new weakened environment and climate plan fails to protect Ontarians from climate risk and sets us on a dangerous path of missed economic, energy and job-creation opportunities. TAKE ACTION!

NB: This consultation closes at 11:59 p.m. on January 28, 2019

The Dzawada’enuxw First Nation files lawsuit against Canada on fish farms dispute

Dzawada’enuxw First Nation community members, including matriarchs, elected and traditional leaders, and artists, were in Vancouver Thursday to announce their decision to sue the Government of Canada.


At a press conference on Jan. 10, 2018, Chief Willie Moon, traditional leader of the Dzwada’enuxw Nation said the ‘zero tolerance’ policy for fish farms in their waters comes from the direction of their matriarchs and membership. Photo by Michael Ruffolo

The First Nation, from Kingcome Inlet, B.C., filed a statement of claim in federal court in Vancouver on Thursday, arguing the federal government authorized licenses for fish farms operating in their waters, without their consultation or consent.

The claim says the fish farm operations pollute and poison wild salmon and infringe on the nation’s constitutionally protected rights. Their case is the first ever rights-based challenge to the federal licensing process that fish farm companies rely on to operate along the coast of B.C. SOURCE