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.


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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

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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

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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

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