Terence Corcoran: The Trudeau Liberals will have to live with being in breach of a UN declaration they should never have adopted

In other words, says the UN, Canada should stop all work on its three largest energy projects worth billions in new investment

Canada’s Prime Minister Justin Trudeau welcomes Members of Parliament to the House of Commons as parliament prepares to resume for the first time since the election in Ottawa, Ontario, Canada December 5, 2019.Patrick Doyle / Reuters

According to an ancient political proverb, governments that pander to the globalist sword fighters at the United Nations run a grave risk of getting their policy necks lopped off. And so, as prophesied, that object now rolling across the Canadian West toward Ottawa is the Trudeau government’s self-righteous 2016 decision to wrap its arms around UNDRIP — the 2007 United Nations United Declaration on the Rights of Indigenous Peoples.

With Canada now signed on to the United Nations’ feel-good indigenous agenda, UN operatives are back and claiming, as is their practice, that Canada is failing to live up to the full meaning of the declaration, which among other things requires Ottawa and the provinces receive full agreement from Indigenous peoples before proceeding with economic development.

Through a subgroup called the Committee on the Elimination of Racial Discrimination (CERD), the UN has drafted a two-page decision calling on Canada to “immediately cease” construction of the Trans Mountain pipeline expansion, to “immediately suspend” construction on the Site C dam in British Columbia and to “immediately halt” all work on the Coastal Gas Link LNG pipeline.

In other words, says the UN, Canada should stop all work on its three largest energy projects worth billions in new investment. According to the “decision”— following typical global bureaucratise — CERD said it is “concerned” about the pipeline plans, “disturbed” by forced removal and harassment of protesters and “alarmed” by what it calls escalating threats of violence against Indigenous people.

Had the Trudeau government refrained from enthusiastically adopting the UN Indigenous rights declaration in 2016, the quick answer to these insistent directives would be to tell the global agency to look to parts of the world where rights are actually being trampled on. China, for example. Or how about Venezuela? Iran, anyone?

The only option is to let the pipelines be built and to hell with the UN.

But having signed on to the declaration, Canada is an easier target, a goose with its self-righteous neck sticking out for easy political removal. When Canada adopted the declaration in May of 2016 — nine years late — the formal announcement by Indigenous Relations Minister Carolyn Bennett was greeted with a standing ovation at the UN. Canada, she said, is “now a full supporter of the declaration, without qualification.”

Well, not quite. There are a couple of clauses in the declaration that most legal scholars and clear-eyed politicians view as all but impossible to adopt within Canada’s constitutional framework.

Even former Trudeau justice minister Jody Wilson-Raybould sounded more than skeptical about the UNDRIP adoption. In a 2016 speech, she said much as she would like to cast Canada’s Indian Act into the fire of history, “simplistic approaches, such as adopting the UNDRIP as being Canadian law, are unworkable.” In another comment, she said “it is important to appreciate how come it cannot be simply incorporated, word for word, into Canadian law.”

But that is exactly what the UN wants Canada to do. In its decision calling for the shutdown and suspension of Trans Mountain and Coastal Gas Link pipelines, CERD insists that Canada constitutionally adopt a UNDRIP legal concept that requires Canadian governments to seek the “free, prior and informed consent” of Indigenous people over large-scale economic development projects that may impair their rights, culture and way of life.

Free, prior and informed consent — known in the business as FPIC — is imbedded in UNDRIP and was for a decade the major reason Canada did not sign the 2007 declaration. Canada was so strongly opposed to the idea that it was the only UN member to refuse the UN’s FPIC principles.

Even after the Trudeau government adopted UNDRIP, it continued to fudge the issue. A recent paper in the International Indigenous Policy Journal says the latest Trudeau government pronouncement on FPIC is weak. The best Ottawa can do is claim that it “recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior and informed consent.”  A policy that “aims to” do something is not a hard policy.

Canada’s Supreme Court has ruled that governments, including provinces, have a “duty to consult” Indigenous peoples, but legal experts say FPIC takes the concept several steps beyond mere consultation to requiring full “free will” agreement.

The province of British Columbia has also embraced UNDRIP, so it will have to find a way to respond to the UN criticisms of the Site C hydro project.

The Trudeau Liberals are now in a bind of their own making. Ottawa moved to adopt UN principles that are incompatible with Canadian constitutional law, and now the UN is knocking at Canada’s door demanding action.

Alberta has firmly responded: “With all the injustice in the world,” said Minister of Energy Sonya Savage, “it’s beyond rich that the unelected, unaccountable United Nations would seemingly single out Canada — one of the greatest champions of human rights, democracy and the rule of law.”

What will Ottawa do? In his post-election mandate letter to Carolyn Bennett as minister of Indigenous relations, the prime minister instructed her to “support the minister of justice and attorney general of Canada in work to introduce co-developed legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples by the end of 2020.”

If legal scholars and Jody Wilson-Raybould are right, introducing “free and prior consent” into Canadian law is a legal impossibility, which means that the Trudeau Liberals will have to live with being in breach of a UN declaration they should never have adopted.

The only option is to let the pipelines be built and to hell with the UN.

Alberta Utilities Commission Releases Interim Direction on Indigenous Consultation

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The Alberta Utilities Commission (the “AUC”) recently announced that it will review its application requirements for consultation with Indigenous communities. The AUC has released an Interim Direction on Indigenous consultation for proponents to follow while this review is undertaken. “[T]o ensure that application requirements for consultation with First Nations and Métis are clear”, it is separating its review of other AUC application requirements. The commission’s goal is to have clear requirements for Indigenous consultation completed by the fall of 2020.

What the AUC Does

The AUC regulates the construction and operation of utility projects such as transmission lines, substations, power plants, hydro projects and gas utility pipelines, all of which may have the potential to impact Aboriginal and Treaty rights protected by section 35 of the Constitution Act, 1982.

The former AUC approval process did not specifically address Indigenous consultation or the assessment of impacts on Aboriginal and Treaty rights. Instead, Indigenous consultation was included in the general participant involvement program and there was no requirement to assess impacts on rights.

In 2017, the Supreme Court of Canada confirmed that the application process of a regulatory body, such as the AUC, can trigger the duty to consult in certain circumstances (Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40). The duty to consult must be fulfilled before a decision is made to approve a project that could have adverse impacts on Aboriginal or Treaty rights. If not, the approval could be overturned by the courts.

The AUC’s Review

In June 2019, the AUC announced that it was undertaking a review of its stakeholder consultation process. On December 2, 2019, through AUC Bulletin 2019-20, Interim direction on Indigenous consultation the AUC has decided to conduct additional engagement “to ensure that application requirements for consultation with First Nations and Métis are clear” before releasing their updated procedures.

The AUC has released interim requirements for Indigenous consultation for project proponents to follow while it works with Indigenous communities and industry stakeholders to create new application requirements. This interim consultation process will apply to all new applications for transmission lines, substations, power plants, hydro projects, industrial system designations and gas utility pipelines made on or after March 1, 2020.

The AUC has also launched a pilot project to create a statement of intent to participate form specific for Indigenous groups. The AUC is piloting the use of the new form and is seeking feedback on its format and its effectiveness. 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

A Comparative Analysis: Public Consultation for Bill 4, the Cap and Trade Cancelation Act, 2018, and the Federal Duty to Consult Aboriginal Peoples under s.35

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Photo: Bruce MacLean
On October 11, 2018, the Supreme Court of Canada released its decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 [Mikisew], in which the Court held that the Federal Government does not have a duty under s.35 of the Constitution Act, 1982 to consult Aboriginal Peoples in the development of legislation. Mikisew was an application by the Applicant Indian Band to the Federal Court for judicial review of Parliament’s introduction of two omnibus Bills in 2012 that had significant effects on Canada’s environmental protection regime and had the potential to adversely affect the Mikisew’s treaty rights to hunt, trap and fish. The Mikisew had not been consulted on either of the omnibus bills at any stage in their development or prior to the granting of royal assent. The Mikisew argued that the Crown had a duty to consult it on the development of the legislation.

While the Federal Court at the first level allowed the Mikisew’s Application, the Federal Court of Appeal granted the Crown’s appeal. In granting the appeal, the Federal Court of Appeal found that the reviewing judge had erred by conducting a judicial review of what amounts to a legislative action contrary to the Federal Courts Act, RSC 1985, c F-7.

The Issues before the Supreme Court of Canada were twofold:

  1. Did the Federal Court have jurisdiction under ss. 18 and 18.1 of the Federal Court’s Act to hear the Application?
  2. Does the development of legislation by Ministers trigger the duty to consult Aboriginal Peoples under s.35 of the Constitution Act, 1982?

On the first issue, the SCC found that while s.17 of the Federal Courts Act gives the Federal Court concurrent original jurisdiction where relief is claimed against the Crown, this jurisdiction does not extend to the review of the exercise of legislative power by executive actors. The SCC also found that ss. 18 and 18.1 of the Federal Courts Act only grant the Federal Court jurisdiction to judicially review action taken by a “federal board, commission or other tribunal”, which is defined in s. 2(1) of the Act as a body exercising statutory powers or powers under an order made pursuant to a prerogative of the Crown.

The SCC noted that s.2(2)  of the Federal Courts Act specifies that the Senate, the House of Commons, or any committee or member of either House is not a federal board, commission or other tribunal within the meaning of s.2(1). Moreover, the SCC reasoned that Ministers do not act pursuant to statutory powers when developing legislation; rather, they act pursuant to powers under Part IV of the Constitution Act, 1867. The SCC held that Ministers, when developing legislation, do not act as a federal board, commission or other tribunal and their actions are immune from judicial review. The SCC outlined its reasons as follows:

“… the separation of powers and parliamentary privilege apply to parliamentary proceedings and to the process leading to the introduction of a bill in the House of Commons. The development, drafting and introduction of the omnibus bills are immune from judicial interference.” 1

[Emphasis added]

According to the SCC, “the entire law-making process — from initial policy development to and including royal assent — is an exercise of legislative power which is immune from judicial interference”. 2

On the second issue, the SCC held that the duty to consult under s.35 applies only to executive, not legislative action. The SCC reasoned that the duty to consult doctrine is ill suited for legislative action, and that it is rarely appropriate for courts to scrutinize the law making process. According to the SCC, this judicial reluctance to supervise the legislative process derives from the Constitutional principle of the separation of powers, as Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority.

The SCC emphasized, however, that simply because the duty to consult doctrine is inapplicable in the legislative sphere, this does not mean the Crown is absolved of its obligation to act honorably. Despite its finding that legislation cannot be challenged on the basis of the duty to consult, the SCC left open the possibility for future case law to recognize another remedy where Aboriginal or treaty rights may be adversely affected by legislation.

Bill 4, the Cap and Trade Cancellation Act, and Public Consultation

On July 3, 2018, the Ontario Provincial government introduced O. Reg. 386/18 (“Regulation”) under the Climate Change Mitigation and Low-carbon Economy Act, SO 2016, c 7 (“CCMLE Act”). The Regulation revoked the operational elements of Ontario’s cap and trade system for reducing greenhouse gas emissions. Subsequently, on July 25, 2018, the Ontario Provincial Government introduced Bill 4, Cap and Trade Cancellation Act, 2018 (“Bill 4”) into the legislature, which, if enacted, would repeal the CCMLE Act.

On September 11, 2018, Greenpeace Canada filed an Application under s. 6(2) of the Judicial Review Procedure Act in the Superior Court of Justice challenging the Province’s introduction of O Reg 386/18 and Bill 4, arguing that the Province had failed to comply with its public consultation obligations under ss. 15 and 16 of the Environmental Bill Right Rights (“EBR”), which state:

s.15(1) “If a minister considers that a proposal under consideration in his or her ministry for a policy or Act could, if implemented, have a significant effect on the environment, and the minister considers that the public should have an opportunity to comment on the proposal before implementation, the minister shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented.”

s.16(1) “If a minister considers that a proposal under consideration in his or her ministry for a regulation under a prescribed Act could, if implemented, have a significant effect on the environment, the minister shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented”

On September 12, 2018, the day after Greenpeace initiated its Application, the Provincial Government announced that it would provide for a 30-day public consultation period regarding Bill 4. Greenpeace has declared this to be a “partial victory”, but has implied that it intends to proceed with its Application, stating that “the Ford government still must answer in court for its violations of Ontarians’ rights under the Environmental Bill of Rights”.

Mikisew’s Implications for the requirement of Public Consultation under the EBR

The Supreme Court’s decision in Mikisew raises the question of whether the Superior Court would grant a remedy for the Province’s failure to comply with the EBR in its introduction of Bill 4. The Supreme Court in Mikisew was clear that legislative action, i.e., the development of legislation, is not normally subject to judicial scrutiny.

Of course, an obvious difference between Greenpeace’s Application and Mikisew, is that Mikisew was decided in the context of the Federal Courts Act, which circumscribes the Federal Court’s jurisdiction to hear applications for judicial review. Unlike the Federal Court, the Ontario Superior Court of Justice is a court of inherent jurisdiction whose jurisdiction to judicially review governmental action is a common law right as opposed to a statutory grant of power.

Nevertheless, the common law of judicial review of administrative action dictates that the development of primary legislation does not generally attract administrative rights. 3 Recently, for instance, the Honourable Justice Belobaba in City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 [City of Toronto], reiterated this principle:

“The provincial legislature has no obligation to consult and no obligation of procedural fairness. The doctrine of legitimate expectations, an aspect of procedural fairness, does not apply to legislative enactments” 4

Similarly to Greenpeace in its Application, the Applicant in City of Toronto had argued that the City of Toronto Act, 2006, SO 2006, c 11, Sch A imposed on the Province a duty to consult the Applicant in the creation of Bill 5, Better Local Government Act, 2018. To this argument, Justice Belobaba replied in obiter as follows:

“A federal or provincial legislature is sovereign and cannot bind itself. The provincial legislature can over-rule or contradict a previously enacted law. A subsequent enactment that is inconsistent with an earlier enactment is deemed to impliedly repeal the earlier enactment to the extent of the inconsistency. Thus, the argument that the City of Toronto Act somehow imposed an immutable obligation to consult cannot succeed. The Province was entitled to enact Bill 5 and ignore completely the promise to consult that was set out in the previous law.”5

It could be argued that the EBR, like the City of Toronto Act, is merely a Provincial statute with which the Province need not comply in enacting new legislation. Moreover, the ruling in Mikisew suggests that even a Constitutional duty to consult may not bind a government in the enactment of primary legislation. Mikisew’s iteration of this principle renders it uncertain whether the Province did indeed have a legal obligation to consult the public in introducing Bill 4. By contrast, however, the promulgation of regulations under primary legislation is subject to judicial review,6 and it is possible that the portions of Greenpeace’s Application concerning the introduction of O Reg 386/18 could lead to a finding that the Province did indeed breach its obligations to consult under the EBR.

The 30-day public consultation period regarding Bill 4 closed on October 11, 2018 and Bill 4 is currently awaiting its third reading before the Legislative Assembly of Ontario. It remains to be seen if and how the public consultation period will affect the content of Bill 4 and whether Greenpeace’s Application will proceed. SOURCE

First Nations renew court battle to stop Trudeau and Trans Mountain


Members of Tsleil-Waututh Nation gather around, with lawyer Merle Alexander, Tsleil-Waututh Chief Leah George-Wilson and Skeetchestn Indian Band Kukpi7 Ron Ignace at centre front row in Vancouver, B.C., on July 9, 2019. Photo by Stephanie Wood

First Nations have taken their first step to bring the federal government back to court over its approval of the Trans Mountain expansion project.

Six First Nations, including Squamish Nation, Tsleil-Waututh Nation and Coldwater Indian Band, announced today they have officially petitioned the Federal Court of Appeal to review Prime Minister Justin Trudeau’s second approval of the pipeline.

Chief Leah George-Wilson of Tsleil-Waututh Nation said Canada was “not responsive” to concerns that came up during the consultation process, including those relating to the risks and costs of an oil spill, the impacts on southern resident killer whales and encroaching on Indigenous rights and title.

“Tsleil-Waututh participated in the consultation in good faith, again. But it was clear that Canada had already made up their mind as the owners of the project,” she said. “We have no choice but to appeal again, and we expect the same result: that the approval will be overturned.”

The nation will also argue that the government’s $4.5-billion purchase of the west coast pipeline system created a conflict of interest.

“Canada is biased. The federal government is in a conflict of interest as the owner, the regulator and enforcer, as well as the fiduciary for First Nations,” George-Wilson said.

Under Canada’s Constitution, federal government has a legal duty to consult First Nations on decisions that could affect their rights or way of life. But the Trudeau government failed to do this the last time it tried to approve the pipeline in November 2016.

As National Observer reported in April 2018, government insiders say senior public servants privately ordered them to find a way to approve the project before Trudeau announced his decision, despite telling Indigenous leaders the government was still consulting them. MORE

Trudeau’s paradoxical definition of Indigenous consent

The federal government’s skewed view of Indigenous consent, and its apparent conflict of interest on the pipeline, could pose a legal problem.

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Photo: Indigenous drummers perform a drum circle prior to a demonstration against the approval of the Trans Mountain pipeline, in Victoria on June 22, 2019. THE CANADIAN PRESS/Dirk Meissner

he latest cabinet approval of the Trans Mountain pipeline came less than a day after the federal government declared a climate emergency. While the irony was a dream for satirists, it wasn’t the biggest contradiction of the day. Instead, it was Prime Minister Justin Trudeau’s bizarre definition of free, prior, and informed consent (FPIC) with regard to projects that will impact Indigenous land and rights: “[FPIC] is what we engaged in doing with Indigenous communities over the past number of months. It is engaging, looking with them, listening to the issues they have and responding meaningfully to the concerns they have wherever possible.”

By Trudeau’s definition, consent is: listening to issues, responding to concerns wherever possible, and then forging ahead. As Indigenous lawyer and scholar Pam Palmater pointed out, imagine if that definition of consent was applied in the context of sexual relations?

The prime minister’s comments largely went unnoticed in the mainstream media, but his government’s skewed understanding of FPIC and half-hearted attempts at consultations with Indigenous communities remain the core reason it will be unable to move the project forward. Moreover, Ottawa’s purchase of the pipeline created an inherent conflict of interest as it purported to sit down for meaningful consultations.

“Listening to the issues”

So, what exactly was the government “engaged in doing” with Indigenous communities since last August, when the Federal Court of Appeal found that “Canada did not fulfil its duty to consult” on the pipeline and quashed the National Energy Board’s approval of it?

Many of the First Nations that had appealed to the court expressed their dissatisfaction with the renewed Stage III consultation process that the court had mandated.

The Squamish First Nation said it had been assured there were no time limits for the consultations, only to discover that cabinet did have an end date in mind. Khelsilem, a Squamish Nation spokesperson, told a news conference that they had been sent documents for feedback after May 22, the federal government’s self-imposed deadline for comments.

“What we experienced was a shallow attempt at consultation that resulted in a failure to address our concerns,” said Khelsilem. “The failure to meaningfully engage with rights holders means this government is either not serious about building this pipeline or not serious about respecting Indigenous rights.”

Chief Lee Spahan of Coldwater Indian Band said, “The meaningful dialogue that was supposed to happen never happened.” A study of the community’s aquifer had not yet occurred, and an existing pipeline spill has yet to be remediated.

Chief Leah George-Wilson of the Tsleil-Waututh Nation said that consultation once again fell well below the mark set by the Supreme Court of Canada in a number of key decisions, including Tsilhqot’in. This constitutional obligation of the Crown’s was re-emphasized in the Federal Court of Appeal ruling. George-Wilson also noted that the federal government was in a conflict of interest – that its multiple hats as proponent, decision-maker, enforcer of laws and fiduciary to First Nations and all Canadians made it impossible to make an open-minded, unbiased decision.

Indigenous leaders warn of protests, halting developments over shale gas exemption

‘It is our job to ensure the protection of lands and waters for our future generations’: Chief Ross Perley


Assembly of First Nations Regional Chief Roger Augustine says ‘the blueprint’ for government to consult Indigenous groups is there. (Radio-Canada)

Top Indigenous leaders are warning that the Higgs government has made “a serious mistake” on shale gas that may reignite protests like those seen in the Rexton area in 2013.

They say the province’s duty to consult Indigenous people is clearly defined, and the government should have known how to proceed as it tries to restart the industry in one part of the province.

“It’s not as if this is all new,” said Roger Augustine, the regional chief for the Assembly of First Nations in New Brunswick and Prince Edward Island. “The blueprint is there.”

“There’s a lot of case law,” said Chief George Ginnish of Natoaganeg First Nation. “There are actual court cases. … If he needs clarity, we’ll certainly provide clarity if that’s what he needs.”

‘Reckless voice’

Augustine said the Progressive Conservative government’s decision to lift the moratorium on fracking in the Sussex area risks alarming members of First Nations communities.

“When a reckless voice speaks out, be it the premier or the prime minister, they should realize what could happen, what it causes in communities,” he said. “Once we’ve got outrage out there, and we’ve got roadblocks, we’ve got cars burned.”

He was referring to anti-shale gas protests near Elsipogtog First Nation in 2013 that saw violent confrontations between protestors and police. MORE

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