Supreme Court of Canada will not hear B.C. groups’ challenges against Trans Mountain pipeline expansion

Groups argued a previous judicial review of project’s approval was unfairly denied

Workers are pictured at the Trans Mountain pipeline construction site in Burnaby, B.C. last June. The Supreme Court of Canada has declined to hear five B.C.-based challenges against the approval of the pipeline expansion project. (Ben Nelms/CBC)

The Supreme Court of Canada has declined to hear five B.C.-based challenges against the approval of the Trans Mountain pipeline expansion project.

Groups determined to overturn the project — two First Nations, environmental organizations and teenage activists — had argued a previous judicial review of the pipeline’s re-approval by the federal government was unfairly denied by a single judge from the Federal Court of Appeal in September.

The Squamish and Tsleil-Waututh First Nations, the Raincoast Conservation Foundation, B.C. Nature and several youth climate activists applied to the country’s highest court for leave to appeal the dismissal last fall.

The Supreme Court declined to grant the leave in a decision posted Thursday. As is custom, the court did not provide reasons for its decision.

For one of the groups, the ruling marks the end of its six-year legal fight against the pipeline.

5 groups were originally among 12

Twelve groups originally filed challenges against the project with the Federal Court of Appeal last year.

On Sept. 4, the court only agreed to take up six of those appeals. It chose just to hear challenges based on the issue of whether the federal government consulted Indigenous peoples adequately before approving the project for a second time in June.

The federal court declined to hear the second part of the overall dispute: arguments centred on environmental concerns and claims of government bias. Several of the applicants argued the National Energy Board didn’t do enough to address environmental and marine concerns when it green-lit the project, while the two First Nations said the federal cabinet couldn’t objectively approve or deny the project because they own it.

The four teenaged activists had said Ottawa did not fully consider the pipeline’s potential impact on climate change before approving the project.

Protesters against the Trans Mountain pipeline expansion project gather in downtown Vancouver on June 18, 2019. (Maggie MacPherson/CBC)

 

The Squamish Nation and the Tsleil-Wautuh Nation were among the groups who succeeded at the federal court in September, but pressed ahead to the Supreme Court of Canada because they thought concerns around bias and the environment should be heard.

“Obviously, this pipeline has become a political issue as much as a legal or economic issue,” said lawyer Eugene Kung, who was not named in the application to the Supreme Court but has previously worked to stop the expansion project.

“What the applicants are looking for is just that the laws of Canada be applied when this project is approved. They’ve said that it hasn’t, and that has very real consequences.”

Killer whales are seen in Chatham Sound near Prince Rupert, B.C. in June 2018. (Jonathan Hayward/The Canadian Press)

 

The Raincoast Conservation Foundation, one of the groups which lost its bid Thursday, has long been fighting the pipeline on the basis that the project would further threaten B.C.’s southern resident killer whales.

The foundation cannot pursue its legal challenge further, as there’s no court higher than the Supreme Court of Canada.

“This scenario should serve as a wake-up call,” Margot Venton said in a statement Thursday. “If the government is allowed to shirk its responsibilities [to at-risk species], then there is something fundamentally wrong with how Canadian species protection works in practice.”

Rebecca Wolf Gage, 13, said she and the other activists were “devastated” they will not have their day in court.

“I feel like I have failed the generations of the future by not being able to stop this pipeline,” Wolf Gage said in a statement.

The sixth group whose challenges were dismissed in federal court in September did not join the other five in pursuing leave to appeal with the Supreme Court.

The proposed Trans Mountain pipeline expansion would carry nearly a million barrels of refined oil products and crude oils from Alberta to the B.C. coast every day. The Crown corporation that now owns the line has previously said the expansion will be finished by mid-2022.

A statement from Alberta Energy Minister Sonya Savage said Thursday’s decision “clears the way” for the project to be finished, though she said recent blockades at pipeline and rail sites elsewhere in Canada “continue to be a concern” for the national economy. SOURCE

Industry, government pushed to abolish Aboriginal title at issue in Wet’suwet’en stand-off, docs reveal

Documents obtained by The Narwhal reveal representatives of resource industries and government sought the ‘surrender’ of Indigenous land rights in the wake of the precedent-setting Delgamuukw decision, which affirmed Aboriginal title on unceded territory

RCMP helicopter Wet'suwet'en Unist'ot'en

An RMCP helicopter takes off after Unist’ot’en spokesperson and founder, Freda Huson, refused to negotiate surrender with the police on Feb. 8. Photo: Amber Bracken / The Narwhal

he B.C. government and corporate lobbyists representing major resource industries sought the “surrender” of First Nations land rights immediately following the Delgamuukw decision, a precedent-setting legal ruling that established Aboriginal title to unceded land, according to Freedom of Information (FOI) documents obtained by The Narwhal.

The records, from B.C.’s Ministry of Aboriginal Affairs, provide a glimpse for the first time of a corporate lobbying effort urging government to push First Nations to surrender their newly recognized title rights through modern treaties to achieve “certainty” for commercial interests.

Internal emails, memos and confidential briefing notes also show that, immediately after the Delgamuukw decision came down from the Supreme Court of Canada on Dec. 11, 1997, B.C. government officials discussed tactics to fight land rights with legal challenges, to curb direct action or litigation by First Nations and to use federal money intended for the healing of residential school survivors to make treaty negotiations more attractive.

The push for “certainty” for industry operating in B.C. remains a strong focus for government to this day.

The Delgamuukw decision — prompted by a case launched in the 1980s by Wet’suwet’en hereditary chiefs and the neighbouring Gitxsan Nation — cuts to the heart of the Wet’suwet’en nation’s on-going opposition to Coastal GasLink’s plan to build a 670-kilometre fracked gas pipeline through the nation’s traditional territory to LNG export facilities in Kitimat.

In the decision, Supreme Court justices declared that nations like the Wet’suwet’en, who had never signed treaties, still hold unceded rights to their lands.

A supporter at Unist’ot’en camp in Wet’suwet’en territory

A supporter at Unist’ot’en camp in Wet’suwet’en territory Jan. 15. Arrests of supporters at the camp are expected to take place Sunday, Feb. 9. Photo: Amber Bracken / The Narwhal

The threat of Aboriginal title

In early January Wet’suwet’en hereditary chiefs issued an eviction notice to Coastal GasLink after the B.C. Supreme court extended an injunction against members of the Wet’suwet’en and their supporters who are preventing the company from accessing contested work sites along the pipeline corridor near Houston, B.C. A year earlier, in January 2019, the RCMP enforced the injunction and arrested 14 people in a controversial move that drew international attention

Days after the eviction notice was served, Wet’suwet’en hereditary chiefs met with the B.C. RCMP’s commanding officer, deputy commissioner Jennifer Strachan.

Hoping to avert a repeat of last year’s much-criticized police action, Chief Hagwilnegh (Ron Mitchell) of the Wet’suwet’en’s Small Frog clan offered the deputy commissioner a piece of advice: consult the Delgamuukw decision.

“Read that, before you give out your orders,” he recalled telling her.

Although the Delgamuukw ruling happened almost 25 years ago it is still considered one of the most important rulings on Indigenous land rights in Canadian history.

For 150 years prior to the ruling, all levels of government insisted Aboriginal title had been extinguished and thus had no impact on decision-making.

“If the government had taken the approach of co-existence advocated by the court, we wouldn’t be dealing with what we’re dealing with today.”

The Delgamuukw ruling found Aboriginal title is a unique, collectively held interest in the land that could grant Indigenous peoples exclusive occupation and require consent prior to resource development or other activities that could affect their territory.

The ruling sent shockwaves through the country, promising a transformation in Indigenous peoples’ rights to govern their ancestral territories.

Hagwilnegh, who worked as a translator for Elders testifying in court in their Wet’suwet’en language, remembered being hopeful that Aboriginal title would be reconciled with Crown title, as the federal Supreme Court judges had directed.

“If the government had taken the approach of co-existence advocated by the court, we wouldn’t be dealing with what we’re dealing with today,” he told The Narwhal.

But the government and resource companies had other ideas.

Freda Huson Brenda Michell RCMP Unist'ot'en

Freda Huson, centre, and her sister, Brenda Michell, stand in ceremony while they wait for police to enforce Coastal GasLink’s injunction. Photo: Amber Bracken / The Narwhal

‘The decision makes the need for certainty through surrender all the more clear’

In a committee formed by the B.C. NDP government of Glen Clark — to allow oil and gas, forestry, cattle, real estate and mining associations to offer advice about treaty negotiations — various lobbyists pushed the government to limit the consequences of the Supreme Court decision, according to the FOI documents.

According to one memo, detailing a meeting that took place one day after the Delgamuukw ruling, Marlie Beets, then vice-president of the BC Council of Forest Industries, remarked that she had spent the previous hour “trying to calm” the CEOs she represented.

“[Delgamuukw] has only created more uncertainty and we are very concerned by how governments will react to the court’s findings,” Beets said. “The decision makes the need for certainty through surrender all the more clear. We see no other alternative.”

Marlie Beets, certainty through surrender

A document released through Freedom of Information rules quotes Marlie Beets relaying the anxiety of CEOs with the BC Council of Forest Industries in response to the Delgamuukw decision. Beets notes the ruling makes the need for economic “certainty through surrender” of Aboriginal title “clear.”

Mike Hunter, then the president of the Fisheries Council of B.C., urged the government to “downplay the expectations that Aboriginal leaders have.”

Mary MacGregor, then director of the B.C. Cattlemen’s Association, promised that “we will be putting great pressure on the provincial government to commit to a cede, release and surrender approach.”

Several days later, a new Delgamuukw strategy team formed by the ministry noted in a memo that “the oil and gas industry in particular has expressed concern about their ability to continue to do business in the province absent a clear direction from the government on how it will address the implications of the Delgamuukw decision.”

The following spring, John Watson, then-regional B.C. director of the federal Ministry of Indian Affairs wrote in a letter that both provincial and federal governments “are under tremendous pressure to ensure that we achieve the level of certainty required to assure business and other third parties.”

Indigenous-led opposition to unwanted natural resource projects and infrastructure has been bolstered by decisions such as Delgamuukw, Haida Nation and Taku River Tlingit.

In B.C., as in Quebec, Yukon, the Northwest Territories and the Atlantic provinces, the vast proportion of land has never been subject to treaty. Although often referred to as public or Crown land, most of these areas are the unceded homelands of Indigenous nations.

These communities are increasingly laying legal claim to their territory through the courts. A 2014 decision, for instance, granted the Tsilhqot’in nation Aboriginal title to 438,000 hectares of its traditional territory. It took the Tsilhqot’in 25 years to win its legal challenge in the Supreme Court of Canada. The B.C. and federal government fought the title claim from start to finish.

Following the Delgamuukw decision, the federal Supreme Court indicated the Wet’suwet’en could make a similar legal claim to its 22,000 square kilometre territory. Notably, the judges urged the government to seek to reconcile Aboriginal title with Crown title through negotiations, in the spirit of what it called “the honour and good faith of the Crown.”

But the FOI documents show the priority for both B.C. and federal governments was to try to resolve the economic and legal uncertainty for resource industries seeking access to land and natural resources.

In a “certainty working group” meeting arranged by the B.C. Treaty Negotiations advisory committee, lawyer Chris Harvey warned that, post-Delgamuukw, “there is now uncertainty over whether the entire province is burdened by Aboriginal title.”

What should be sought through the treaty process, Harvey said, is “an end of Aboriginal rights and title.”

B.C. government officials, for their part, promised to accomplish this through the existing B.C. modern treaty process.

End of Aboriginal rights quote

An excerpt of a fax sent on March 27, 1998, quoting lawyer Chris Harvey stating treaty rights are needed to bring about the ‘end of Aboriginal rights and title.’

‘Treaties offer the only long-term solution’

The treaty process, created in 1992, offered a way for the provincial government to forge agreements with First Nations that had never signed historic treaties.

The process drove a hard bargain for First Nations: they could relinquish rights to close to 95 per cent of their traditional territories — giving resource companies “certainty,” or uncontested access — in exchange for financial compensation and small parcels of land.

Nations like the Wet’suwet’en, which refused to enter the B.C. treaty process, were stone-walled, Hagwilnegh told The Narwhal.

“If we sat down to talk, it didn’t go anywhere. Meanwhile, government continued to hand out licences for all sorts of things — mining, clear-cut logging and, as we see today, pipelines.”

Gitxan supporter Wet'suwet'en camp

A Gitxan supporter works to start a truck at a Wet’suwet’en re-occupation camp on Jan. 13. Photo: Amber Bracken / The Narwhal

Following Delgamuukw’s recognition of Aboriginal title, many Indigenous advocates and lawyers argued Canada should stop requiring First Nations to extinguish their rights and instead seek out shared jurisdiction that would allow Indigenous nations to develop sustainable economies.

Indeed, the FOI documents show that in the wake of the ruling, officials at the B.C. Ministry of Aboriginal Affairs expressed fear that the “credibility of the treaty process is in question.”

But rather than shift its approach, the ministry deliberated how to accelerate negotiations and “[revamp] the treaty process to create faster certainty in the areas of lands and resources.”

The FOI documents include draft speaking notes prepared for then-B.C. Minister of Aboriginal Affairs John Cashore in advance of a public forum with First Nations in late 1998.

The notes show Cashore’s prepared lines, which state, “there is no doubt that Delgamuukw also signals a need for a change in the way we do business.”

“The decision confirmed we are on the right track by negotiating instead of litigating,” the bullet-point speaking notes state. “We still believe that treaties offer the only long-term solution to gaining certainty around Aboriginal title and Aboriginal rights.”

But in private, government bureaucrats discussed several hardball tactics, including litigation, the FOI documents reveal.

The bureaucrats proposed the idea of signing “interim agreements” with First Nations that would have them “agree to support economic stability in British Columbia by refraining from direct action or litigation,” without which negotiations would not proceed.

“Make sure we take advantage of potential litigation and maybe even initiate where we feel it could help us,” Doug Caul, then-director of Aboriginal affairs at the B.C. Ministry of Forests, suggested as a possible tactic in an email exchange with colleagues from different provincial ministries.

Caul also noted the province could strike back with a court challenge: “This will be controversial, but it seems likely that Delgamuukw will spawn more litigation,” he said. “Future litigation could help [d]efine the scope of title.”

“I am not suggesting we pick a fight,” Caul wrote on Dec. 17, 1997, less than one week after the Delgamuukw decision, “but that we make sure we take advantage of potential litigation and may be (sic) even initiate where we feel it it (sic) could help us, instead of waiting and reacting.”

An excerpt from an email written by Doug Caul less than one week after the Delgamuukw decision, suggesting government “take advantage of potential litigation” to limit the scope of the ruling’s significance for title rights.

Today, Caul is the deputy minister of B.C.’s Ministry of Indigenous Relations and Reconciliation, responsible for overseeing Bill 41, B.C.’s new legislation contending with the United Nations Declaration on the Rights of Indigenous Peoples.

Escalating government tactics to ‘sweeten the deal’

In a memo to the B.C. Ministry of Aboriginal Affairs, provincial treaty negotiators suggested using federal funds intended for the healing of residential school survivors to advance treaty negotiations.

As part of the federal response to the Royal Commission on Aboriginal Peoples, the Liberal government of Jean Chretien had established the Aboriginal Healing Foundation with a $350 million dollar grant in 1998.

In order to “sweeten the deal” offered by the B.C. treaty process, B.C. negotiators suggested asking the federal government to prioritize healing money for First Nations who engaged in treaty negotiations.

sweeten the deal treaty

Internal documents from B.C. treaty negotiators recommending healing funds for residential school survivors be used to “sweeten the deal” of modern treaties.

“Were the federal government to be strategic in how this money were spent in British Columbia, then they would prioritize those First Nations with which they are having treaty negotiations as the major beneficiaries of this program,” the treaty negotiators wrote. “In addition, the money could be made available as a ‘down payment’ on an eventual treaty and given credit accordingly.”

It is unclear whether the federal government ever acted or received a request to act on this idea.

The documents also show the provincial government monitored the activities of First Nations in B.C.’s interior who were critical of the treaty process. When the Union of B.C. Indian Chiefs marched in downtown Vancouver on the first year anniversary of Delgamuukw, officials prepared media lines to highlight how they had “moved forward on a number of fronts.”

Documents reveal that upon the one-year anniversary of the Delgamuukw decision, government officials considered “monitoring blockades” a priority action. The documents also note a strategic priority to ensure the Ministry of Aboriginal Affairs update the Ministry of the Attorney General and the RCMP on “affected regions.”

The ‘surrender approach’ continues

UBC Indigenous legal scholar Gordon Christie called the FOI documents “illuminating.”

“It confirms what has been common knowledge in Indigenous circles — that the approach that emerged out of these discussions has been pursued by both provincial and federal governments for decades,” Christie said.

Mohawk policy analyst Russell Diabo, who was working with interior B.C. First Nations when the Delgamuukw decision came down, said the “continuities are clear” over the decades.

“The governments have shown their main aim remains keeping powerful business interests happy and containing the power of Aboriginal rights and title, rather than moving toward a respectful relationship.”

United Nations bodies have repeatedly criticized the Canadian government for trying to dress up old policies that have been rejected by First Nations.

The UN Committee on Economic, Social and Cultural Rights noted in 2006 it “remains concerned that the new approaches, namely the ‘modified rights model’ and the ‘non-assertion model,’ do not differ much from the extinguishment and surrender approach.”

Despite the enormous effort by the B.C. government, treaty negotiations have resulted in only eight modern treaties that “modify” or “surrender” their Aboriginal title.

The Trudeau and Horgan governments have introduced an array of new policy mechanisms and “reconciliation” agreements, but Hagwilnegh said they promote essentially the same end result and remain unacceptable to the Wet’suwet’en.

“The government never likes it when we bring up Delgamuukw,” he said. “They clam up. And on those occasions when we have been able to educate government officials, the next day, poof, we get new officials sent to us.”

When contacted by The Narwhal, instead of answering questions the Ministry of Indigenous Relations and Reconciliation referred to a press release stating it is “basing negotiations on the recognition and continuation of rights without those rights being modified, surrendered or extinguished when a treaty is signed.”

Unist'ot'en camp reconciliation is dead flag

An imitation flag that reads “reconciliation is dead” burns on a funeral pyre as a small envoy of police arrive at Unist’ot’en Healing Centre on Saturday, Feb 8. Photo: Amber Bracken / The Narwhal

“The new policy will enable flexible, innovative and collaborative approaches that improve how treaties are reached in B.C.,” the release said.

Diabo said the modern approach bears an uncomfortable resemblance to older methods. “Though the B.C. and federal government never tires of varnishing their approach to convince us that it’s brand sparkling new, their end-game remains to extract surrender of Aboriginal title to Crown sovereignty,” he told The Narwhal.

In the years since Delgamuukw, some First Nations have chosen further litigation or direct action to uphold the rights recognized in the ruling.

Diabo noted the response from the government has often been criminalization, pointing to the arrest of Wet’suwet’en land defenders in January 2019 as the latest in a line of policing actions taken against Indigenous peoples across Canada.

“The police lay down the law — or what they think the law is,” said Hagwilnegh, who has educated Wet’suwet’en youth about the meaning of the Delgamuukw court decision and worked with community members to map creeks, forests and hills across the nation’s traditional territory.

“But Delgamuukw was brought down by the Supreme Court, the highest court of Canada.”

Coastal Gaslink Pipeline RCMP Gidimt'en arrest

Police make an arrest January 2019 while enforcing the injunction filed by Coastal GasLink at the Gidimt’en checkpoint. Photo: Amber Bracken

Over the past several weeks, Hagwilnegh, acting as the police liaison for the hereditary chiefs, said he has continued to speak on the phone with RCMP deputy commissioner Strachan, whom the B.C. RCMP declined to make available for comment.

Hagwilnegh said Strachan took his advice and read up on Delgamuukw and he thinks she has listened more than the former commissioner, who oversaw the raid on Wet’suwet’en territory last year.

“But after our Elders told the world who we are and how we look after the land, as caretakers of the territory, is that the best the government can do?” Hagwilnegh asked. “It is long past time they respect their own laws.” SOURCE

 

With its legal hurdles all but cleared, Trans Mountain’s challenges move to a different court — the street

The Trans Mountain Expansion Project pipe going in the ground west of Edmonton.Postmedia file photo

CALGARY – With the last legal challenge to the Trans Mountain pipeline expansion project all but eliminated, experts say opposition to the pipeline now will move from the courts to the streets.

“We always said we’d do what it takes to stop this pipeline,” said Rueben George, manager of the TWN Sacred Trust and a member of the Tsleil-Waututh First Nation, one of three First Nations that filed the legal challenge.

“We will take steps to make sure that Canada stays the way it is,” George said at a press conference that included chiefs and elected councillors from all the Indigenous groups involved in the case.

The Federal Court of Appeal Tuesday dismissed the case filed by Tsleil-Waututh First Nation, Squamish First Nation and Coldwater Indian Band, who argued the federal government failed to properly consult on the $10 billion oil pipeline which would pass through their territories.

It was the second such appeal by the opposed Indigenous groups of the pipeline. But where they won their first appeal in August 2018, this time the appeals court found the government had consulted properly.

Those Indigenous groups and aligned environmentalists opposed to the pipeline reiterated Tuesday that they’re committed to blocking the project. George said the decision would be appealed to the Supreme Court.

“We are deeply disappointed with the decision today but, as stated earlier, this is but one step available to us,” said Dustin Rivers, a spokesperson for and elected member of the Squamish Nation Council.

“B.C. has a long history of civil disobedience,” he added.

First Nations have 60 days to file an appeal.

We are deeply disappointed with the decision today but, as stated earlier, this is but one step available to us

Dustin Rivers, Squamish Nation Council

It’s unclear whether the Supreme Court will be willing to hear an appeal given the sharp wording of the decision, which was rendered unanimously and ordered the Indigenous groups to pay compensation to the defendants — the federal government, Canada Energy Regulator as well as Alberta and Saskatchewan.

Lawyers, pipeline executives and professors say they believe the legal challenges before the Trans Mountain pipeline project that runs between Edmonton and Vancouver are largely over, but most expect opposition to now take the form of on-the-ground protests.

Indeed, environmental organizations on the West Coast said they would continue to oppose the pipeline. Stand.earth said it had 27,000 pledges from people who would do “whatever it takes” to stop the pipeline.

“As long as Prime Minister Justin Trudeau tries to build the Trans Mountain pipeline, we will continue to fight,” Stand.earth international program director Tzeporah Berman said in a release.

Despite the threat of delays, Tuesday’s court decision is “good news for workers,” said Progressive Contractors Association of Canada president Paul de Jong.

He added: “There could be more opposition in terms of physical resistance along the pipeline right of way (but) this project has taken far too long to move to construction.”

Construction work in Alberta and at the Westridge Marine Terminal in Burnaby, B.C. has been underway for months.

Public opinion in the Lower Mainland is divided over the project, said Simon Fraser University professor Shahin Dashtgard, who passes by the construction on the oil terminal on Burnaby Mountain every day.

“There are a substantial number of people that are either OK with it, or don’t have an opinion,” Dashtgard said, though he noted that polling consistently shows that between 40 per cent and 60 per cent of the population in the Vancouver region are opposed to the project and this could provide “a source of people” to protest the project.

Tuesday’s Appeals Court decision and the Supreme Court of Canada’s unanimous dismissal last month of B.C.’s case against the pipeline is likely to discourage civil disobedience to the project, he said.

“We have a country that believes in the rule of law and this was taken to the highest courts,” Dashtgard said.

A ramp-up in construction on the project is expected later this year.

Trans Mountain Corp. filed an updated construction schedule on Monday with the Canada Energy Regulator that showed the Crown corporation would begin “clearing and pipeline construction” in the Kamloops, B.C. area in March. The company has already been putting pipe in the ground in Alberta, and has been welding those pipes together since the end of 2019.

In an emailed statement, the company said it had hired 2,200 people for the project by the end of the third quarter of 2019 and would provide updated employment numbers in the coming weeks.

Overall, Tuesday’s decision provides a greater sense of optimism that the Trans Mountain project will be completed despite continued opposition and expectations of protests.

“It’s hard to predict what kind of civil disobedience could happen,” Canadian Energy Pipeline Association president and CEO Chris Bloomer said in an interview, adding that the court decision made clear that “we can’t keep having endless interventions.”

Tuesday’s decision does dismiss the idea that all of the concerns of Indigenous communities need to be resolved before a project can be approved.

“If we accepted those submissions, as a practical matter there would be no end to consultation, the project would never be approved, and the applicants would have a de facto veto right over it,” the decision reads.

Still, there is a specific area in which the appeals court decision might allow for a successful appeal to the Supreme Court, said University of Calgary assistant law professor David Wright.

“The court makes comments on the interplay between the duty to consult and the infringement analysis,” Wright said, adding that “there’s a lack of clarity in the law” between those two legal principles.

“This case is interesting because the court is speaking to that foggy area directly. It’s too early to say how good of a job they’ve done,” Wright said, adding that’s one area where the Supreme Court might be willing to listen to an appeal, even though the appeals court ruling was unanimous. SOURCE

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

 

Plastic offensive: Several B.C. municipalities eager for bag bans as province conducts review

Plastics industry remains steadfast that bags are being unfairly targeted

Promotional materials for the City of Victoria’s plastic bag bylaw that was approved in 2018, but has since been struck down by the Court of Appeal of British Columbia. (City of Victoria/Lisa Helps/Twitter)

As 2020 begins, at least 20 B.C. municipalities have either put in place a bylaw that prohibits plastic bags at check-outs, or are drafting legislation in consultation with residents about how to come up with one.

In the meantime, the province is reviewing single-use plastics to come up with a potential provincewide ban, while the plastics industry remains steadfast that the bags are being unfairly targeted.

On June 8, 2019 Tofino and Uclulet prohibited businesses from giving out conventional plastic bags and restaurants providing plastic straws. Instead customers can pay a fee for a paper bag or, better yet, bring their own reusable bags.

The bans are meant to reduce the number of bags ending up in landfills or, worse, in the ocean. Tofino Mayor Josie Osborne said the ban has been good for her community.

“People want to effect change in the environment and the way we use things,” she said.

By July, several other municipalities joined Tofino and Ucluelet with similarly structured bylaws based on one in Victoria that was passed in 2018. They included Courtenay, Salmon Arm, Qualicum Beach, and Cumberland.

But the movement suffered a blow on July 10 when the Court of Appeal for British Columbia struck down Victoria’s bag bylaw, which struggled to get going due to court challenges

The court ruled that the implementation of a ban was provincial jurisdiction.

Lisa Helps – Victoria Mayor@lisahelps

City to Ask Supreme Court of Canada to Rule on Municipal Power to Regulate Business Use of Plastic Bags https://www.victoria.ca/EN/main/city/news-room/media-releases/latest-media-releases.html 

View image on Twitter

They include Chilliwack, Colwood, Port Moody, Richmond, Rossland, Esquimalt, North Vancouver, Saanich, Sooke, Kamloops, and Nanaimo.

Many of the municipalities are looking to the province for leadership on the issue. For two months ending in September it collected feedback about single-use plastics as part of a provincewide review.

Provincial ban coming?

It’s called the CleanBC Plastics Action Plan and it will include several ways to reduce plastic pollution, including bans, said a ministry official. Results from the outreach are expected sometime this winter.

In the meantime, the federal government has committed to banning single-use plastic items as early as 2021.

The plastics industry says the focus on banning plastic bags is misguided and ignores that plastic bags are often reused, can be recycled, and use less energy and water to make than something like a cotton bag.

Craig Foster, speaks for the Canadian Plastics Industry Association from B.C. It represents 300 companies and around 80,000 workers.

He says a Danish study from 2018 and a Quebec one from 2017 show the significant number of times reusable bags would have to be used in order to bring their environmental or climate impacts in line with plastic bags.

‘Not a win’

“We’re not only changing from recyclable to non-recyclable, we’re changing from domestic production to imports,” Foster said about alternatives to plastic bags. “It doesn’t matter how you look at this thing … there is not a win for us here at all.”

As for the New Year, Gibsons appears to be the only municipality in B.C. willing to push through a bag ban. Its chief administrative officer says councillors are still working out the details, but implementation is planned for March.

The City of Vancouver implemented a ban on polystyrene foam containers on Jan. 1, but its plastic bag ban, which it says will withstand legal challenge because it is governed by a different charter than Victoria, won’t come into effect until 2021. SOURCE

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Civil rights groups want to challenge Quebec religious symbols ban in Supreme Court

Muslims to contest religious law at Canada’s top court

Civil rights groups challenging Quebec’s controversial ban on religious symbols want to take their case to Canada’s top court.

Quebec’s Court of Appeal last week rejected a request to suspend portions of the law, known as Bill 21, pending a ruling on its constitutionality.

In a statement Wednesday, the National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association, along with plaintiff Ichrak Nourel Hak, said they will seek permission to appeal at the Supreme Court of Canada.

“We told Quebecers and Canadians that we would not stop our work until this unjust law has been defeated,” said Mustafa Farooq, executive director of the NCCM.

“While teachers and other public sector workers are being forced out of their jobs, we will seek leave from the SCC to halt the serious and irreparable harm that Bill 21 causes.”

In a 2-1 decision, the appeals court said last Thursday the law should be allowed to stand until the challenges are heard in Quebec Superior Court.

All three justices, however, said there is evidence the law is causing harm to Quebecers who wear religious symbols.

The law is being challenged in four separate lawsuits, three of which are expected to be heard together in October 2020.

It bans public school teachers, government lawyers and police officers, among other civil servants, from wearing religious symbols at work.

Premier François Legault has argued the law protects secularism in Quebec and will put an end to long-running debates about how to accommodate minority cultural practices.

Legault has repeatedly told Prime Minister Justin Trudeau to stay out of the legal battle.

“I can understand that he’s against Bill 21, but I’m asking him to respect a decision that has been taken by a majority of Quebecers, by a nation,” he said last week.

Trudeau hasn’t ruled out the possibility of federal intervention in the case but has so far stayed on the sidelines. SOURCE

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The Drilldown: Redwater ruling poses threat to the energy sector


The Supreme Court of Canada in Ottawa. (iPolitics/Matthew Usherwood)

The Supreme Court of Canada passed the Redwater ruling earlier this year requiring energy companies to complete their environmental commitments before repaying financiers to avoid bankruptcy or insolvency repercussions. Before this ruling, financial experts vocalized that this decision could negatively impact the financial backing of the oil and gas sector, which is proving to be true.

“We also will be focusing in the next few weeks on doing everything we possibly can to mitigate the unintended consequences of the Redwater decision, which has done so much to restrict access to both capital and credit, equity and credit, for this industry,” said Alberta Premier Jason Kenney at a Canadian Association of Oilwell Drilling Contractors (CAODC) hosted luncheon on Wednesday, reported CBC News.

The Redwater ruling repealed two previous Supreme Court decisions that said bankruptcy law superseded the environmental obligations of the province. This allowed energy producers to refund their financiers before cleaning old oil and gas wells, which often led to companies abandoning oilfields without taking environmental responsibility.

Representatives from the oil and gas sector claimed they were content with the court’s decision as it was happening, but the ruling has had a “significant” effect on the sector, said Tristan Goodman, the president of the Explorers and Producers Association of Canada, on Thursday.

The number of abandoned wells in Alberta has increase substantially over the last five years. According to the Orphan Well Association, orphaned well numbers were lower than 200 in 2014, and as of November 1, 2019, totalled 3,406.

CAODC projections show stagnant activity in drilling, and as companies continue to move to the U.S., layoffs in the sector are expected to continue. SOURCE

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Alberta seeks to lessen financial hit of Supreme Court ruling on orphan wells

 

15 Canadian youths to sue Ottawa for not acting on climate change

They say young people will be more affected than other groups


People hold signs as thousands gather outside Vancouver City Hall before marching downtown during a climate strike in Vancouver on Friday, Sept. 27, 2019. THE CANADIAN PRESS/Darryl Dyck

A group of young people from across the country are suing the Canadian government for not acting on climate change, according to the David Suzuki Foundation.

In a statement issued Wednesday morning, the foundation said the youths have each suffered “specific, individualized injuries due to climate change.”

The lawsuit, which is expected to be filed Friday in the Supreme Court of Canada, will allege Ottawa is violating their rights to life, liberty and security of person under section seven of the Charter of Rights and Freedoms.

The youth will also claim the government’s actions violate section 15, which deals with equality, as they say young people are disproportionately affected by climate change.

They will be represented by Arvay Finlay LLP and Tollefson Law Corporation, and partner with the Pacific Centre for Environmental Law and Litigation and the David Suzuki Foundation.

“The lawsuit calls on Canada to cease its conduct that is violating the youth’s Charter and public trust rights and prepare and implement a plan that reduces Canada’s GHG emissions in a manner consistent with what best available science indicates is needed for the federal government to protect young Canadians, do its fair share to stabilize the climate system, and avert the catastrophic consequences of climate change,” the foundation said in a statement.

The youth will also take part in a march and rally at the northern steps of the Vancouver Art Gallery Friday, coinciding with Greta Thunberg’s arrival and climate strike in the city.

SOURCE

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Carbon Pricing: Ontario Court Of Appeal Delivers Constitutional Endorsement

Image result for carbon pricing

The Ontario Court of Appeal has found that the Greenhouse Gas Pollution Pricing Act is valid federal legislation. The Act implements national minimum pricing standards to reduce greenhouse gas (“GHG”) emissions. In a divided 4-1 opinion, the Ontario Court of Appeal concluded that the Act is constitutional and falls within the authority granted to Parliament to make laws for the peace, order, and good government of Canada. The impact of this decision for the Atlantic provinces is discussed below.

Overview of the Act

The Act places a price on carbon pollution:

  • Part 1 of the Act establishes a charge on fuels producing GHGs.4 The charge applies to carbon-based fuels that are produced, delivered or used in a listed province, brought into a listed province from another place in Canada, or imported into Canada at a location in a listed province. The charge is presently $20 per tonne of CO2 emitted and will rise annually until 2022 when it reaches $50 per tonne.
  • Part 2 of the Act creates an output-based regulatory system for GHG emissions by industrial facilities.5 The system places annual limits on emissions, extends credits to facilities operating below those limits, and establishes charges for facilities whose emissions exceed the prescribed limits. While facilities subject to the system are exempt from the fuel charge, they are required to pay compensation for GHG emissions that exceed the annual limits. This compensation may take the form of credits earned or acquired by the facility, payments by the facility, or a combination of both.

The Act does not apply in all provinces. Rather, the Act operates as a “backstop” by extending into provinces without a sufficiently stringent system to reduce GHG emissions. This determination as to stringency is made by the federal Cabinet.6 Provinces may opt into the federal system voluntarily, adopt the national minimum standards as their own, or enact their own system that meets or exceeds the national standards for reducing GHG emissions. The fuel charge and trading system prescribed by the Act therefore only apply in provinces that do not satisfy the national standard for stringency.

Constitutional questions

Constitutional responsibility for the environment is not assigned exclusively to the federal government or the provinces.


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Burnaby joins B.C.’s appeal for oil flow restriction powers

B.C. Court of Appeal ruled against the province in May. B.C. taking appeal to Supreme Court of Canada

westridge tanker
A tanker at Westridge Marine Terminal in Burnaby.
Photograph By TRANS MOUNTAIN

The Supreme Court of Canada has granted the City of Burnaby permission to take part in B.C.’s upcoming challenge of the B.C. Court of Appeal ruling that found the province did not have the authority to stop the flow of Albertan crude oil through the Trans Mountain pipeline.

In a unanimous May 24 decision, the court’s five judges ruled the province’s amendments to the Environmental Management Act that would have granted it the power to restrict the flow of diluted bitumen (also known as dilbit) were aimed at the proposed expansion of the pipeline.

At the time, the NDP government’s attorney general, David Eby, vowed to appeal the ruling to the country’s highest court. The Supreme Court is scheduled to hear the appeal on Jan. 16, 2020.

Now, the City of Burnaby has been granted leave to intervene in the case.

“This court case will allow Burnaby and other governments, First Nations and non-government organizations – all committed to protecting our shared environment and communities – to again demonstrate the critical need for new regulations that address critical environmental protection and public health issues,” Burnaby Mayor Mike Hurley said in a statement. SOURCE