Supreme Court to rule on how unionized workforces deal with human rights issues

The Supreme Court of Canada will hear an appeal on a Manitoba court case that could have implications for employers dealing with a human rights issue in a unionized workforce.

The resulting decision could settle whether labour arbitrators or human rights tribunals have jurisdiction over human rights issues in unionized workforces in certain provinces.

The case concerns a health-care worker for the Northern Regional Health Authority, who was terminated after she was found to be intoxicated at work. The NRHA and the employee’s union entered into a settlement that allowed her to return to work if she followed certain conditions, including abstinence from alcohol. However, she was found intoxicated on the job for a second time and was terminated again. The union didn’t file a grievance, but the employee filed a complaint with the Manitoba Human Rights Commission alleging discrimination on the basis of a disability.

Read: B.C. tribunal finds reduced benefits for older workers not age discrimination

The NRHA argued the complaint was within the purview of a labour arbitrator and, as such, the tribunal had no jurisdiction over the case. The tribunal’s chief adjudicator dismissed the objection on the grounds that the nature of the dispute was an alleged violation of the employee’s human rights and ultimately ruled the health authority had acted discriminatorily.

Upon judicial review of the decision, the judge ruled in the health authority’s favour, saying the nature of the dispute was whether there was just cause to terminate the employee, which would bring it under a labour arbitrator’s purview. However, the Manitoba Court of Appeal — ruling on an appeal from the provincial human rights tribunal — disagreed. The court said the reviewing judge had erred when overturning the adjudicator’s decision, as the dispute centred on accommodating a disability.

According to Sarah Iaconis, an associate at Hicks Morley Hamilton Stewart Storie LLP, the impact of the Supreme Court decision will not be as significant in some provinces. In Ontario, for example, labour arbitrators and the human rights tribunal have concurrent jurisdiction over human rights issues.

“It’s going to ultimately come down to the legislation in each province,” she says. “Where the law is not as settled, such as provinces where human rights schemes are commission-based it could have an impact on whether disputes can be addressed in a human rights forum where the employee is unionized and the nature of the dispute arises directly from the employment relationship.”

However, adds Iaconis, anything the Supreme Court says may affect how these issues are litigated across the country.

Depending on how the court rules, provinces that don’t have settled concurrent jurisdiction could end up seeing labour arbitrators have exclusive jurisdiction if the nature of the dispute rises out of the collective agreement or the employment relationship, she speculated. “That would be something to keep an eye out for.”

Iaconis says the case itself is very fact specific. “While we are seeing that this could have an impact on how human rights issues are litigated in a unionized context, it is so important to remember that this case does come down to a lot of the specific facts. The impact of the [Supreme Court] decision might turn on the fact specifics of this case.” SOURCE

U.S. JUDGES TOSS LANDMARK YOUTH CLIMATE CASE, SEND PLAINTIFFS BACK TO THE BALLOT BOX

Our Children’s Trust/Twitter

After a five-year push just to secure a trial date, the landmark Juliana v. United States youth climate justice case is hanging by a thread, after two out of three judges who heard the case before the federal Court of Appeals for the Ninth Circuit concluded that it didn’t belong in court.

Our Children’s Trust, the legal charity managing the case, said it would appeal for an en banc hearing before a panel of 11 judges, the New York Times reports.

Even though the Juliana plaintiffs “made a compelling case that action is needed,” wrote Judge Andrew Hurwitz, he and Judge Mary Murguia determined that climate change is not an issue to be decided by the courts. “Reluctantly, we conclude that such relief is beyond our constitutional power,” he concluded in a 32-page opinion. “Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.”

“They want to leave the key decisions to the ballot box,” said Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law. “So for now, all three branches of the federal government are sitting on their hands as the planet burns.”

Even so, the decision was “a disappointment but not a surprise,” Gerrard added, since “many U.S. judges have vigorously enforced the environmental laws written by Congress but won’t go beyond that.”

“If ever there were a case where your heart says yes but your mind says no,” said University of Michigan law professor, former head of the environmental crimes section at the U.S. Justice Department, “Juliana unfortunately is that case.”

None of which stopped District Judge Josephine Staton from writing what Grist calls a “searing dissent” that “lacerated the U.S. government” and argued that the 21 youth plaintiffs, ages 12 to 23, had standing to go to trial.

“In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity,” she wrote. “It is as if an asteroid were barreling toward the Earth and the government decided to shut down our only defences. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.”

The judgement “reverses an earlier ruling by a district court judge, Ann Aiken, that would have let the case go forward,” the Times writes. “Instead, the appeals court gave instructions to the lower court to dismiss the case.” U.S. Assistant Attorney General Jeffrey Bossert Clark said the Trump administration was “pleased with the outcome,” contending that it “fell squarely outside the parameters” of Article 3 of the U.S. Constitution, which defines the role of the federal courts.

Our Children’s Trust Executive Director and Chief Legal Counsel maintained the case is “far from over”, telling the Times the request for an en banc hearing would be the next step. Olson “originally filed the federal suit in 2015 against the Obama administration, demanding both that the government drop policies that encouraged fossil fuel use and take faster action to curb climate change from a president already seen as friendly to environmental interests,” the Times recalls.

“Working under a legal principle known as the public trust doctrine, which can be used to compel the government to preserve natural resources for public use, the initial complaint stated that government officials had ‘willfully ignored’ the dangers of burning fossil fuels.”

Climate law specialist Ann Carlson of the UCLA Law School said she’d “always thought this case was creative and interesting but a long shot,” given “just how big the remedy was that the plaintiff were seeking in the case”, to “get the United States to stop emitting carbon into the atmosphere.” At a hearing in June, the Times recalls, Hurwitz pressed Olson on the lead role she was asking the courts to take: “You’re asking us to do a lot of new stuff, aren’t you?” he asked.

But Carlson pointed to the strongly sympathetic note the two justices took in a majority opinion that acknowledged the need for climate action. “There really is a giant dilemma here about the lack of political will to address the problem, the lack of judicial comfort in stepping in to solve the problem,” she told the Times.

Olson said the sweeping remedy described in the court decision wasn’t the only option available to it. “It doesn’t have to be the whole shebang,” she said. But for the Juliana kids, “the idea that their only recourse is to go to the very branches of government that are violating their rights when half of them can’t even vote is a preposterous notion.”

In a Friday evening e-blast to supporters, Our Children’s Trust stressed that “we’re not done!” and laid out the process and prospects for seeking an en banc review.“Given the strength of the dissenting opinion of Judge Staton, articulating the apocalyptic conditions, the strength of the evidence, and the proper role of the government and the courts, we are optimistic that the 11-judge panel will reverse today’s majority decision and finally set the case for trial,” the organization stated. “Assuming the Ninth Circuit grants the en banc review, we expect briefing and argument of the case to be complete by year end.” SOURCE

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Carbon tax and TMX pipeline dominate top court’s winter session

The Supreme Court of Canada building, located in downtown Ottawa. Jan. 3, 2020. Jolson Lim/iPolitics

Just as it did when it ruled on Senate reform, prostitution and medically assisted death, the Supreme Court of Canada, as it begins its winter session, will take a leadership role on nation-building issues that could profoundly change Canada.

If dealing with climate change is the imminent crisis of the next decade, then three major cases are pivotal in determining how Canada manages emissions reduction and deals with the threat of a warming globe in the years to come.

Two of the cases, to be heard in March, are about the federal government’s carbon pricing scheme, a law that some say has already deeply divided the country.

Saskatchewan and Ontario are arguing that the federal government’s 2018 Greenhouse Gas Pollution Pricing Act is unconstitutional.

The top court will have to determine if the so-called carbon tax is such an issue of national concern that it falls under Parliament’s constitutional authority to ensure peace, order and good government.

Saskatchewan, in its brief to the top court, states its own plan — a provincial responsibility, it says — is based on reducing emissions from its largest industrial emitters. The federal law imposes a fuel surcharge on consumers and producers

Saskatchewan lost at court of appeal in a 3-2 decision that found the federal law didn’t impose taxes, but regulatory charges meant to regulate behaviour, not raise revenues.

Ontario also lost at the Ontario Court of Appeal. Alberta is waiting for its own appeal court’s decision.

“The provinces are fully capable of regulating greenhouse gas emissions themselves, have already done so, and continue to do so,” Ontario’s brief says.

The third case about the conflict between environmental regulation and federal-provincial jurisdiction is to be heard next week at the top court.

British Columbia is asking whether it can regulate aspects of the environmental impact of the proposed Trans Mountain pipeline extension, designed to transport oil from Alberta through B.C. to the coast for export to other countries.

A pipeline has existed for almost 40 years and has been pumping about 300,000 barrels of oil a day, an amount that will nearly triple with the expansion.

At the B.C. court of appeal, B.C. lost as that court unanimously ruled the proposed amendments by the B.C. government were aimed more at stopping the pipeline than regulating the environment. MORE

 

Next federal government needs to amend Cannabis Act, say First Nation chiefs

Some leaders worry status quo could lead to conflict


The Pot Shoppe advertises its wares in Tyendinaga, near Kingston, Ont. (Jorge Barrera/CBC)

The next federal government needs to amend the Cannabis Act so First Nations can have jurisdiction over the industry on their territories, to seize its economic potential and avoid potential conflicts, according to some Indigenous leaders.

First Nations were left out of the jurisdictional equation when the Liberal government passed its cannabis law, which put regulation of distribution and retail in the hands of the provinces while Ottawa oversees production.

This left them at the mercy of provincial decisions when it came to opening dispensaries on reserve — a situation rejected by many bands who see provincial governments as interlopers in a nation-to-nation relationship they believe should be strictly with Ottawa.

Alderville First Nation Chief Dave Mowat, whose community near Peterborough, Ont., has 13 unlicensed cannabis shops, said the next federal government needs empower band councils.

“There has to be a political will to amend the [Cannabis Act] so we can have a firmer footing, one that recognizes our jurisdiction and recognizes who we are,” he said.

Mowat said he worries that the status quo would lead to police action and conflict.

“I don’t want to see a raid happen on the reserve. Someone will get hurt if that happens,” he said.

“There are sizeable investments that have been made in some of these shops that could lead to serious altercations if that happens.”

Mowat, who was elected in July, said his band council is working on a law to regulate the industry in the community.

In Mowat’s view, the province has no jurisdiction on his First Nation. He said their law will be as strong or stronger than Ontario’s.

“Everyone wants to live in a safe community and I also want to see the community itself reap some of the benefits as well,” he said. MORE

 

Pipelines over People: Canadian First Nations Policing Comes under Scrutiny


Unist’ot’en.camp

Declarations and pledges are all well and good, but when it comes to protecting rights and safety, action is what counts. And where the rights and safety of Canada’s indigenous populations are concerned, so far, the government and the Royal Canadian Mounted Police (RCMP, often known as “Mounties”) have shown a preference for protecting pipelines over people.

Earlier this month, NPQ reported that Canada’s two-year National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) released a report, representing many hours of work and hundreds of pages of data and recommendations. The report confirmed for Canada’s settler government what indigenous peoples already knew: that the violence against indigenous (or First Nations) women and girls, and the failure of government and police to prevent or investigate these crimes, was tantamount to genocide.

Among the report’s 231 Calls for Justice were five demands related to the extractive and development industries, pursuant to the report’s recognition that “resource extraction projects can exacerbate the problem of violence against Indigenous women and girls.”

At the same time, the dispute over the fracked gas pipeline planned through Wet’suwet’en territory in British Columbia proceeds as though this context—the tradition of colonial violence against First Nations people—were not relevant. NPQ has covered this dispute since January, when RCMP invaded unceded lands to enforce an injunction against the checkpoint constructed by the Unist’ot’en clan to protect their land. The Wet’suwet’en challenged the injunction in court, and this week, judges will announce their decision.

It has not been lost on First Nations that the government seems to spend more resources on protecting the pipeline than protecting their people. Dylan Mazur, a community lawyer with the BC Civil Liberties Association, says northern BC communities often complain they are “over-policed and under-protected.”

First Nations member Jacquie Bowes and hereditary chief Na’Moks both remember investigations of MMIWG that lasted months with little visible action, while within days of a threat to the pipeline, trucks full of police streamed into their communities. A “Community-Industry Safety Office” has been established on Wet’suwet’en land and is consistently staffed by over a dozen officers, says Na’Moks, whose English name is John Ridsdale.

“They’ve put more money into watching us, labelling us and monitoring us than into searching for local murdered and missing women,” he said. “They’re out there 24 hours a day, seven days a week, and they’re not helping our people.” Almost half of missing persons cases in northern British Columbia have not been investigated properly.

The tribe’s court case against the injunction is pending this week, and land defenders at the Unist’ot’en camp have issued calls for support. Their head lawyer Michael Lee Ross issued a nine-part argument for the BC Supreme Court to uphold indigenous law on unceded lands. His points acknowledge important contextual information about indigenous disputes, including:

  • “The existing interim injunction should be dissolved because it already has caused irreparable harm by…interfering in hereditary governance by funding and consulting with divisive groups.”
  • “Indigenous legal orders have jurisdiction on Indigenous lands, Aboriginal Rights and Title have not been ceded or surrendered on Wet’suwet’en Yintah and it is the responsibility of a just and equitable court to reconcile Wet’suwet’en law with the common law and accept some of the burden for this reconciliation. For most of Canada’s legal history Indigenous people have been forced to translate and shape their legal rights in a court system that has repeatedly dispossessed them of those same rights. The burden of reconciliation now falls upon the court, to recognize and affirm Indigenous laws that predate Canada and to reconcile these with non-Indigenous legal perspectives.” MORE

How Indigenous leadership is protecting communities from climate disasters

Image result for the conversation: How Indigenous leadership is protecting communities from climate disasters
A wildfire burns on a logging road in central British Columbia in August 2018. THE CANADIAN PRESS/Darryl Dyck

“The fires were never a threat to us. It was the state that was the threat.”

In two short sentences Chief Joe Alphonse, Tribal Chair of the Tsilhqot’in National Government, conveyed to a House of Commons committee a central insight of disaster studies. The environment does not create disasters — people do.

In 2017, British Columbia experienced the first of two successive years of record-breaking wildfires. On July 7, following 130 lightning strikes, fires (amplified by climate change) tore through the B.C. interior, consumed 760,000 hectares of Tsilhqot’in territory and engulfed three of six Tsilhqot’in communities.

The provincial wildfire response that followed revealed how people — through policies, practices and laws — leave some communities more vulnerable to disasters. It was a striking example of law’s role in disaster, which I mapped in relation to the 2016 Fort McMurray wildfire. After the 2017 wildfires, I worked with the Tsilhqot’in Nation to document its communities’ experiences with wildfire.

Unequal vulnerability

Decades of research has documented that social factors such as race, gender, ability and poverty contribute to the harms suffered during disasters. Laws and policies that continually marginalize people and communities during ordinary times make these same people vulnerable to disaster.

Wildfire map for the Tsilhqot’in territory during the summer of 2017. Tsilhqot’in National GovernmentAuthor provided

This theory was tested the summer of 2017 when fires raged through Tsilhqot’in territory. The wildfires revealed the inadequacy of existing laws and the ongoing legacy of colonial policies as key culprits in the vulnerability of the Tsilhqot’in during the wildfire response. Confusion and conflict over legal jurisdiction were central and enduring themes of the wildfire response.

Read more: How will Canada manage its wildfires in the future?


Jurisdiction is fundamental to self-determining Indigenous peoples. It is also fundamental to understanding how multiple levels of government and agencies involved in emergency management work together to keep people safe during a crisis. Jurisdiction answers the question: Who gets to decide? MORE

Tsilhqot’in leaders get standing ovation at United Nations forum in New York City

First Nations have to go to the UN to try to implement their 2014 Supreme Court of Canada title victory, attain jurisdiction, and secure basic human rights. The Trudeau government continues to try to define and implement reconciliation in a purely colonial framework. 

The opportunity allowed the chiefs to advocate for the Tsilhqot’in people on the international stage


Chief Joe Alphonse speaks at the United Nations’ Permanent Forum on Indigenous Issues (UNPFII) in New York City Wednesday, May 1. Photo submitted

Representatives from the Tsilhqot’in Nation took centre stage Wednesday in a rare opportunity to speak before the United Nations — and they knocked it out of the park.

View image on TwitterView image on TwitterView image on TwitterView image on Twitter

Tsilhqot’in@tsilhqotin

The Tsilhqot’in Nation was proud to take the floor at the @UN Permanent Forum on Issues, honouring their ancestors and the sharing their spirit and culture with Indigenous Nations from around the world.

“I was taken back by the responses from all the delegates that were in attendance as I (the Tsilhqot’in) got the loudest applause and a standing ovation,” TNG Tribal Chair Chief Joe Alphonse said Thursday, thrilled by the response of the crowd.

“Our case gives hope beyond what we could have ever imagined on a world stage.”

Alphonse presented to the Permanent Forum and to hundreds of visiting Indigenous Nations, countries and UN Delegates, speaking about how the Tsilhqot’in War Chiefs of 1864 continue to guide and give strength to the Tsilhqot’in as they seek to implement their 2014 Supreme Court of Canada title victory, and to secure recognition of title and jurisdiction to their Territory.

Alphonse said the chiefs attended the UN to advocate for the Tsilhqot’in people on the international stage, forge alliances and hold the governments accountable for fully implementing their title, jurisdiction and human rights. MORE

Liberals’ Indigenous child welfare bill just about ‘politics,’ says prof who saw draft

Draft bill suggests only Indigenous groups with provincial, federal agreements could create own rules


Dennis McPherson, associate professor of Indigenous learning at Lakehead University, said the draft child welfare bill does not recognize true Indigenous jurisdiction over child welfare or guarantee any funding for communities. (Submitted)

Ottawa’s promised “turning point” Indigenous child welfare legislation seems to have been designed with politics in mind because it sounds good but doesn’t change much, according to an Ojibway academic who reviewed a draft version of the bill.

Dennis McPherson, associate professor for Indigenous Learning at Thunder Bay’s Lakehead University, said the draft version of the bill does not recognize true Indigenous jurisdiction over child welfare or guarantee any funding for communities.

“It doesn’t change a whole lot as far as I can see, in that the ultimate voice is still the minister,” said McPherson. MORE

B.C. First Nations back in court over whether governments can restrict their fishing rights

Image result for B.C. First Nations back in court over whether governments can restrict their fishing rights

VANCOUVER—Five Nuu-chah-nulth First Nations are in court this week appealing a 2018 B.C. Supreme Court decision they say unduly limits their right to a commercial fishery.

The First Nations are looking to the B.C. Court of Appeal to recognize not just the right to a commercial fishery but one that is sustainable, economically viable and allows “widespread participation of our people.” MORE

Saskatchewan, Ottawa carbon tax case ‘monumental’ for Constitution: expert

REGINA — Legal experts, government officials and industry leaders will all watch this week as Saskatchewan and Ottawa head to court over the constitutionality of a federally imposed carbon tax.

The federal government is set to impose a carbon levy on provinces that do not have one of their own starting in April.

Ottawa’s price on pollution starts at a minimum of $20 a tonne and rises $10 annually until 2022.

The Saskatchewan Party government has always been opposed to the idea. The province says the tax would hurt the economy and feels its own plan for emissions reductions is sufficient. SOURCE

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