The Problematic Legal Tools Party Leaders Would Use To Build Pipelines

Declaratory powers, constitutional powers and rule of law can be used to push projects through in the national interest.

Steel pipe to be used in the oil pipeline construction of the Trans Mountain Expansion Project in Kamloops,...
Steel pipe to be used in the oil pipeline construction of the Trans Mountain Expansion Project in Kamloops, B.C. on May 29, 2018.  DENNIS OWEN / REUTERS

Many Canadians can recall the $4.5-billion Trans Mountain pipeline that Liberal Party leader Justin Trudeau’s government purchased in what appeared to be a last-ditch effort to save the expansion project from B.C. opposition. What those living outside Alberta may forget is that Trudeau’s government also cancelled the proposed Northern Gateway Pipeline at an expense of nearly $15 million.

It was this Northern Gateway Pipeline, that would have stretched across the northern part of the Alberta-British Columbia border, that Conservative Party leader Andrew Scheer invoked during the first MacLean’s/CityTV leadership debate. When the debate focused on Conservative senators’ attempts to kill C-262, which opposition view as giving Indigenous communities the final say on resource projects, Scheer said, “We cannot create a system in this country where one group of individuals, one Indigenous community, can hold hostage large projects that employ so many Indigenous Canadians.”

It’s telling that the “one group” Scheer singles out are Indigenous communities opposing pipeline projects. These conversations about energy and pipelines, and who decides how, when and where they get built, highlight the need for clarity about the federal government’s constitutional powers to push projects through.

Constitutional powers and rule of law

You’ll often see terms like “declaratory powers,” “constitutional powers” or “rule of law” thrown around by politicians like Trudeau, Scheer and Alberta Premier Jason Kenney. Confusing at best, all three fall under the heading of constitutional law, but look or operate differently. They are legal tools that could potentially allow federal or provincial governments alike to rely on the vague concept of the public interest (sometimes a purely economic test) when companies seek approval for projects.

In the context of resource projects, the outcome is that the rights of groups directly impacted by the thousands of kilometres of pipelines running or planned across our country are ignored as politicians seek to assert their jurisdiction over an issue. This jurisdiction that political leaders refer to is found in Canada’s Constitution, section 92(10).

Justin Trudeau  @JustinTrudeau

Canada is a country of the rule of law, and the federal government will act in the national interest. Access to world markets for Canadian resources is a core national interest. The Trans Mountain expansion will be built. https://twitter.com/jimcarr_wpg/status/983109315958484992 

Jim Carr @jimcarr_wpg

See my statement regarding the Trans Mountain Expansion. https://www.canada.ca/en/natural-resources-canada/news/2018/04/minister-carr-issues-statement-regarding-trans-mountain-expansion.html 

Relying on their declaratory powers, the federal government may use legislation to declare specific works as being to the general advantage of Canada — particularly when there is uncertainty over infrastructure or networks, or the interprovincial works have an international component or connection. Canada’s constitution provides that Parliament can exercise its declaratory power over works, like pipelines, that extend beyond a province’s boundaries or connect with another province. This can prevent a province declaring its jurisdiction over a pipeline, possibly providing some certainty over the project.

Indigenous groups and others demonstrate against the expansion of the Trans Mountain pipeline project...
Indigenous groups and others demonstrate against the expansion of the Trans Mountain pipeline project in Burnaby, B.C. on March 10, 2018. JASON REDMOND VIA GETTY IMAGES

While the federal government is free to declare a pipeline such as the Trans Mountain expansion under its declaratory powers, the remainder of the Constitution does not fade away. Other sections in the Constitution include Canada’s duty to consult and accommodate, or Section 35. To non-Indigenous Canadians and politicians, the duty to consult and accommodate may be seen as a barrier to completing projects. In theory, this shouldn’t be the case if relationships between Indigenous and non-Indigenous groups, including companies, are built meaningfully before projects are granted approval from their respective regulators.

The federal government is using declaratory power to sidestep its duty to consult.

The federal government might desire jurisdiction over a pipeline, relying on its declaratory powers, because there is some international component with some integral element involving an interprovincial work. This would be similar to the Trans Mountain Pipeline connecting Canada’s products to an international market, together with the pipeline’s interprovincial infrastructure. Yet, the rule of law says that no one is above the law. One power seems to operate at the bidding of another.

Sometimes, declaratory powers are confused with the rule of law, chiefly when talking about pipelines. Political leaders may cite the rule of law to say that no group, like those Scheer refers to, is above the law — opposing groups must fall in line with the federal government’s objective to complete a work. At the same time, the federal government is using declaratory power to sidestep its duty to consult, a law which applies to everyone.

Indigenous consent is nuanced and necessary

Indigenous peoples and communities are best suited for understanding their communities’ needs, but often left out when it comes to resource projects. They want a seat at the table. Consent is key. MORE

 

Lawless Trump-Canada Connections

Canada recently seized and sold $30 million worth of Iranian properties in Ottawa and Toronto, a gross hypocrisy explains Yves Engler in light of oversights of more flagrant US and Israel terror victims. See this.

But the behaviour of Canada Foreign Affairs in joining the lawless US war of sanctions, embargos and military threats against Iran goes deeper than hypocrisy.

It is another vassal-state violation of international law on behalf of US rogue policies around the world against majority world societies not fully subjugated to US corporate-profit rule – now against China, against Venezuela, and against Iran and Yemen most ec0-genocidally.

The US backed and armed Saudi bombing of Yemen and mass famine as a weapon of war is more brutal to civilians than in Vietnam, and on behalf of the more despotic and anti-democratic Islamic theocracy of Saudi Arabia.

Yet how many know that it is this same illegal US embargo war against Iran and accompanying armed terror against its oil trading partners that has caused Canada’s disastrous rift with China and its refusal to purchase long-time major Canada agricultural exports to China now ruining Western farmers?

We have been told the story-line by Canada’s government and the media that the now long imprisonment of lead China businesswoman Meng Wanzhou is “strictly abiding by the rule of law” and “China cannot or does not want to understand how the rule of law works”.

In fact, the detention is of the CFO of China’s world-leading telecommunications giant, Huawei, occurred as Huawei was surpassing the long US monopoly giants in global sales, and while the Trump administration was – and remains – in the midst of other strong-arm trade sanctions on China to recover lost market shares to now more competitive Chinese industries.

The fact that it is US corporations themselves which have shipped American jobs en masse to China – predicted by critics of the borderless transnational corporate trade regime throughout – is reverse-blamed on China as the US is silently in trouble even in cell-phone communications where it has long dominated world trade.

Trump has implicitly acknowledged that the US demand for extradition of Meng Wanzhou is part of his trade war with China, and that – mighty white of him – he might work for the release of two Canadians imprisoned in response (for which pervasive Foreign Affairs  Minister Freeland, who has presided over this whole disaster for Canada, unctuously – and futilely – thanked him for nothing).

Minister Freeland has long pretended the fit-up arrest and detention of Huawei’s CEO Meng Wanzhou in transit at a Canadian airport has been to uphold ‘the rule of law’ as sacred. Yet the extraterritorial state arrest is in fact only obeying a US extradition warrant for Huawei’s alleged violation of the US’s illegal trade war on Iran!

That this extra-territorial demand is for no offense committed under Canada or international law is not reported even by the press. That the offense alleged is against an illegal US embargo of Iran by export controls to which Canada is not a party is deleted across government accounts and the media.

At the same time, Trump’s royal love-in with new Saudi tyrant Muhammad bin Salman (with Boris Johnson joining in) backs and arms the eco-genocidal destruction of neighboring Yemen, now the poorest and most war-oppressed country in the world

Needless to say, background editors of what can be spoken on the public stage ensure at every level that no joining of the dots here is allowed.  That Canada has supplied the Saudi war of aggression and mass starvation with billions worth of armored trucks, once a front-end issue, disappears from what accounts there are of the genocidal war presented by acting Saudi-king bin Salman as quick national victory.

Even although the establishment media and politicos may hate Trump, they know that US bully and vassal Canada waging corporate state war on poorer, not-fully-capitalist countries is taboo to know even for them.

It is one more dirty-secret accumulation of interconnected evils and lies out of sight under which the Creation increasingly groans. SOURCE

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US Enemies and the Lawless ‘Rule of Law’

Andrew Coyne: The question of what is Trudeau hiding is not going to go away

The issues involved in the SNC-Lavalin affair are too important to be treated flippantly. This isn’t some question of policy on which people of goodwill can differ

Another campaign begun in the shadow of scandal. The first weeks of the 2015 election campaign were dominated by the trial of Sen. Mike Duffy, at much subsequent cost to Stephen Harper’s re-election chances. Whether or not the latest revelations in the SNC-Lavalin affair prove to be as consequential to the current campaign, the implications are deeply troubling.

Not only is the RCMP reported to have been inquiring into the affair, in which the prime minister and other government officials attempted to interfere in a criminal prosecution, as a possible case of obstruction of justice, but investigators have apparently been prevented from gathering evidence from key witnesses — obstructed, if you will — by the government’s continuing refusal to release them from the bonds of cabinet confidentiality.

No, it’s not yet a formal criminal investigation, and yes, whatever else you want to call it has been “paused” until after the election — a protocol installed after the 2006 campaign, which was knocked sideways by the revelation that the RCMP was investigating the then minister of finance. No doubt that will be of some relief to the Liberal campaign, but it does leave the public in a bind: it would be a hell of a thing to re-elect the government only to have its top officials charged afterward with serious crimes.

And the questions — the first from a reporter, immediately after Justin Trudeau’s opening statement: “what is your government trying to hide?” — are not going to go away. Seven months after the scandal first came to light, they boil down to one: why not lift the obligation to keep cabinet conversations secret if it will help police get to the bottom of the matter?

This is not, after all, the first time the subject has come up. While the prime minister made a great show of waiving cabinet confidentiality earlier this year with regard to his former attorney general, Jody Wilson-Raybould, the waiver applied only to discussions that took place while she was still in the job, and only to those in which she took part. The ethics commissioner reported last month that nine witnesses with evidence relevant to his inquiry had been kept silent by the same restriction.

Cabinet confidentiality is an important principle — ministers could not otherwise speak frankly on sensitive matters — that ought not to be taken lightly. But it is not as important as the rule of law. It might be invoked for reasons of state — or, more often, to spare governments political embarrassment — but it cannot be extended to cover discussions of potential crimes.

Or at any rate it should not. Maybe Trudeau, as he insists, did nothing wrong, legally or ethically. If so, the witnesses will presumably exonerate him. But if not, all the more reason why they should be allowed to tell police what they know.

Former Canadian Justice Minister Jody Wilson-Raybould arrives to give her testimony about the SNC-LAVALIN affair before a justice committee hearing on Parliament Hill in Ottawa on Feb. 27, 2019. LARS HAGBERG / AFP/GETTY IMAGES

Certainly it is within his power to do so. The explanation, offered both to the ethics commissioner and the RCMP, that it was a decision of the clerk of the privy council, even if true, will not wash. The clerk works for the prime minister, not the other way around. Whatever power the prime minister chooses to delegate he can also choose to take back.

The prime minister, in any event, long ago undermined any principled defence of his position by his readiness to go public with his side of the same conversations. It is no part of the doctrine of cabinet confidentiality that it should be strictly applied to material that might incriminate government officials, but may be relaxed where it shows them in a better light.

I say all this in the vain hope that the question will be considered on its merits, and not merely as a matter of optics, or polling, or tactics. We have an unfortunate tendency in our trade to cover the campaign, rather than the election — who’s up, who’s down, how the parties are or should be positioning themselves on a given issue, as opposed to what’s right, what’s wrong, and which party’s position is closest to the truth.

Cabinet confidentiality is an important principle. But it is not as important as the rule of law

But the issues involved in the SNC-Lavalin affair are too important to be treated so flippantly. This isn’t about whether to raise or lower taxes or some other question of policy on which people of goodwill can differ, but whether we are to have an impartial system of justice, or one in which powerful corporations can wriggle out of prosecution by lobbying the right politicians. MORE

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Pacific Islands States Commit to Advancing International Criminal Justice

 

Laying the groundwork to make ecocide a crime against humanity under the authority of the International Criminal Court

Group Photo

On 31 May 2019, more than 40 members of parliament, government representatives, and senior diplomats convened at a strategic high-level event in Port Vila, Vanuatu, to promote the advancement of international criminal justice in the Pacific Islands region. The Roundtable was hosted by the Government of Vanuatu and organised by Parliamentarians for Global Action (PGA), a worldwide network of legislators committed to promoting justice and the rule of law, with the invaluable cooperation of the International Criminal Court (ICC), the Republic of Korea, and the European Union.

The Pacific Islands Roundtable on the ratification and implementation of the Rome Statute of the International Criminal Court brought together representatives of the executive and legislative branches of the governments of Fiji, Kiribati, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu; senior ICC officials; representatives of the diplomatic community; academic experts and members of civil society, united in their objective to promote international justice, including through the universality of the Rome Statute system.

Universality of the ICC: Moving Closer

“Now, more than ever, it is the time for our great region to join this universal system of international justice and take a decisive stand in the world fora. We are very hopeful that the example of my country will inspire all the remaining States that have still not taken this step.” — Hon. Ralph Regenvanu, Minister of Foreign Affairs, International Cooperation and External Trade of Vanuatu

The universality of the Rome Statute and effectiveness of the ICC system are essential prerequisites for accountability and lasting global deterrence for the most serious crimes of international concern; namely, genocide, crimes against humanity, war crimes, and the crime of aggression, which shall not be left unpunished. Of the 16 independent and self-governing States that comprise the Pacific Islands Forum, only eight are States parties to the Rome Statute and only three have effectively implemented the provisions of the Statute of the ICC on complementarity and cooperation with the Court. MORE

RCMP invasion of Wet’suwet’en Nation territory breaches Canada’s ‘rule of law’

“Canada is not a country that follows the rule of law. Canada makes and breaks laws to suit its own economic and political interests, which run counter to those of Indigenous peoples. It is time to be honest about it, and call out Canada as an outlaw, and take action to support the Wet’suwet’en Nation, who have occupied their lands since time immemorial.” – Prof Pam Palmater

While Prime Minister Justin Trudeau makes flowery public speeches about respecting the rights of Indigenous peoples and reassures the international community that there is no relationship more important that the one with Indigenous peoples, Canada invaded sovereign Wet’suwet’en Nation territory. When questioned about this aggressive move at a Liberal fundraiser in Kamloops, British Columbia, he responded: “No, obviously, it’s not an ideal situation… But at the same time, we’re also a country of the rule of law.”

Canada’s invasion of Wet’suwet’en territory through its national police force, the Royal Canadian Mounted Police (RCMP), is an example of the blatant violation of the rule of law in favour of corporate interests. Canada has consistently failed to follow the rule of law when it comes to Indigenous peoples, and the violent arrests of the Wet’suwet’en people at the Gidimt’en checkpoint, set up in support of the Unist’ot’en homestead, is a glaring example of Canada’s lawlessness.

The people of Wet’suwet’en Nation, as represented by their traditional government, have long asserted their sovereign jurisdiction over their Nation’s lands which span about 22,000 square kilometres in northwest British Columbia. These lands have never been ceded, nor have their rights to use, manage, protect or govern these lands been extinguished in any way. The Nation has never signed any treaty or constitutional agreement that has specifically surrendered their sovereignty as a Nation. While there have been many federal and provincial laws that have interfered with First Nation laws in general, there has never been an explicit extinguishment of Wet’suwet’en laws and jurisdiction over their Nation’s sovereign territory. Their land rights are not only recognized in Canada’s Constitution Act, 1982, but they are also protected in numerous international treaties and declarations, like the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In other words, there was no legal basis for Canada to invade their territory. MORE

Wilson-Raybould slams feds for ‘incremental’ progress on Indigenous rights recognition

 

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Former justice minister Jody Wilson-RaybouldOTTAWA — Former Liberal justice minister Jody Wilson-Raybould is slamming the federal government she was once a part of for making only “incremental” progress on the Indigenous justice file and their promise to “decolonialize” Canadian laws and policies.

“My fear and disappointment is that despite sounding the alarm, providing the advice, pushing and challenging, sharing perspectives of lived Indigenous experience… the federal government has fallen back once again into a pattern of trying to ‘manage the problem’ with Indigenous peoples and make incremental shifts rather than transforming the status quo,” Wilson-Raybould said during a keynote address on Wednesday at the First Nations Provincial Justice Forum in Vancouver. They were invited by the B.C.-based First Nations Justice Council.

She appeared alongside fellow newly-Independent MP Jane Philpott to deliver a joint address called: “From denial to recognition: the challenges of Indigenous justice in Canada.”

“Since I spoke to the leadership of British Columbia this past November, there have been a few developments, things have changed a bit,” Wilson-Raybould said early in her remarks, to laughter. “Perhaps not fully unexpected but certainly an eventful time,” she continued, appearing to reference the months-long controversy surrounding her allegations that she faced a sustained effort from senior government officials to attempt to pressure her to interfere in a criminal case against the Quebec engineering and construction giant SNC-Lavalin.

Wilson-Raybould framed her comments as her reflections and insights from her nearly three years as Canada’s first-ever Indigenous justice minister and attorney general, presented with the aim of informing these Indigenous leaders’ ongoing efforts to change the current justice system.

She said that she had “no illusion” about the reality of the system she was taking the helm of, but said that over the course of her time in cabinet she fought to challenge the way things had been done. MORE

Andrew Coyne: The real scandal in the Lavalin affair is Trudeau’s attempts to pretend it’s not a scandal

The real scandal is the determined — and, it would appear, largely successful — campaign on the part of the prime minister and his officials to normalize their conduct


In this file photo taken on March 07, 2019 Canadian Prime Minister Justin Trudeau speaks to the media at the national press gallery in Ottawa, Ontario.Lars Hagberg / AFP

Where is the scandal here, ask the worldly-wise? No money changed hands, no crimes were committed, not even a whiff of sex. When it comes down to it, isn’t this all just a disagreement between a couple of cabinet ministers?

This is the scandal in the SNC-Lavalin affair. It isn’t just that the prime minister and a phalanx of other senior government officials — including his principal secretary, Gerry Butts, his chief of staff, Katie Telford, and the clerk of the Privy Council, Michael Wernick — quietly tried to derail the prosecution of a company with a long history of corruption and an even longer history of donating to the Liberal party; that they pressured the former attorney general, Jody Wilson-Raybould, to have prosecutors drop charges of fraud and corruption against the company in favour of a “remediation agreement” for which it had already been deemed ineligible; or that they did so, by the former attorney general’s account, for explicitly partisan reasons.

It isn’t that the crimes of which the company is accused — bribing officials in the bestial Gaddhafi regime in Libya, to the tune of tens of millions of dollars — makes this one of the most serious cases of alleged corporate corruption in Canadian history; or that the case is regarded as an important test of Canada’s willingness to prosecute companies alleged to have engaged in corruption overseas, as a signatory to the OECD Convention on Combating Bribery of Foreign Public Officials, after years in which we were regarded as international scofflaws.

It isn’t that the legislation providing for remediation agreements — also known as deferred prosecution agreements, they are a kind of plea bargain wherein a company admits guilt, pays a fine and restitution, but avoids a criminal conviction — had only just been passed, tucked deep inside an omnibus bill, in response to a massive public and private lobbying campaign by SNC-Lavalin; or that, when the director of Public Prosecutions, Kathleen Roussel, declined to offer the company the escape hatch it had spent so much money to obtain, it mounted yet another furious lobbying campaign to have her decision overturned.

It isn’t normal. More, it must not become normal

It isn’t that when caught Justin Trudeau and his people lied about it (“the allegations are false”); that when they were done lying about it stonewalled, deflected and obfuscated; that they repeatedly smeared, or encouraged others to smear, both the former attorney general and the former Treasury Board president, Jane Philpott, who resigned from cabinet rather than participate in this sordid campaign; that they muzzled both women by selective application of solicitor-client privilege and cabinet confidentiality, even as they ignored these constraints themselves; that they shut down two parliamentary committees rather than hear all the evidence from these and other relevant witnesses; and that after all this, when there was nothing to be achieved by it but sheer humiliation, kicked them both out of caucus.

No, the real scandal is the determined — and, it would appear, largely successful — campaign on the part of the prime minister and his officials to normalize their conduct: as if monkeying around with criminal prosecutions was all part of the usual give and take of cabinet government, or at worst a misunderstanding between people who “experienced situations differently.” MORE