James Hansen: Oh! Canada

Image result for James Hansen senate
Dr. James Hansen educates Tea Party Senator Ron Johnson (R-WI) on the facts of climate change during a Senate Committee hearing on whether the Keystone XL pipeline should be approved in 2014

North of the border, there is bad news and good news.

Canada’s fossil fuel CO2 emissions remain stubbornly high, despite decreased coal use.  Emissions in 2018 were 7% greater than in 1997, the year of the Kyoto Protocol.  I don’t even want to look up what Canada promised – surely it was not increasing emissions!

The “cap” approach of the Kyoto and Paris agreements is doomed to failure.  We cannot successfully beg each of 200 nations to reduce their emissions.  Until we get the fossil fuel price to begin to reflect its costs to society, we are unlikely to solve the problem.

Canada is the #6 nation in the world in energy consumption!  Because of its large hydro and nuclear power it is ‘only’ #10 in fossil fuel CO2 emissions.  (That ranking was true in 2017; we have not yet completed emission calculations for all nations in 2018).  In per capita emissions Canada is closing in on its gross neighbor to the south and Australia.  The numbers do not include (growing) fossil fuel exports.

The good news up north, modest as it may be, is that last year the Canadian Parliament enacted the Greenhouse Gas Pollution Pricing Act.[1] The Act assesses fees on carbon-based fuels and on industrial facilities that exceed prescribed CO2 emission limits.  The fees apply in provinces that do not already have sufficient carbon pricing, which includes Ontario, New Brunswick, Manitoba and Saskatchewan (and Alberta, commencing in 2020).

Approximately 90 percent of the fee will be distributed uniformly to residents – you can thank the hard-working Canadian Citizens Climate Lobby for that!

The story is not finished, of course.  The Attorneys General of Saskatchewan and Ontario then sought to invalidate the Pricing Act.  They appealed to their respective Courts of Appeal last year, alleging, inter alia, that the Act violates the Canadian Constitution’s commitment to federalism and the requirement that any national tax originate in the House of Commons.

Thankfully, a number of Canadians sought to defend the national plan.  One of them, Glenn Wright of Vanscoy, Saskatchewan — a career engineer and farmer turned law student — reached out soon after reading my Dec. 18, 2018 Climate Change in a Nutshell: The Gathering Storm.  Glenn was preparing an affidavit for the National Farmer’s Union in support of a “Factum” filed by intervening citizens with the Saskatchewan court.  The NFU affidavit insisted that although the Saskatchewan  Attorney General raised technical issues of constitutional law, at bottom the “case is about the risks posed to the country by Climate Change and the duty of the Federal government to implement policy and a regulatory framework to control the specific pollutants, namely GHGs, that cause Climate Change.”[2]

Happily, I can report that, first in early May and then in late June the Canadian courts of appeals rejected the provincial challenges and instead determined that the Pricing Act is constitutional.[3]

As Dan Galpern, my advisor on climate legal and policy matters these last five years, puts it:

” Both of the provincial courts determined that the principle of federalism cannot prevent the Canadian Parliament from imposing a rational national floor for climate action – particularly where Canada’s Supreme Court earlier had determined that the matter of the environment constitutes “a diffuse subject that cuts across many different areas of constitutional responsibility, some federal, some provincial.”

Similarly, both courts determined that the Pricing Act’s conditional imposition of fees and charges amounts to a regulatory program and not a scheme of taxation aimed at raising revenue for general governmental programs. Importantly, the courts also determined that even if the Act’s fees and charges amounted to taxes, the Act’s investiture of authority in the executive branch to determine whether those should be applied to any particular recalcitrant province does not at all render them invalid.

The appellate decisions turned on fundamental questions of constitutional law, but both provincial courts demonstrated a keen comprehension of the climate crisis.  This understanding may have been aided by our Nutshell report, which was referenced in the oral arguments and submitted affidavits.

Saskatchewan Province has already appealed the matter to Canada’s Supreme Court, and Ontario may soon follow suit. The Supreme Court at present intends to hear at least the Saskatchewan matter in December. We stand ready, in whatever way makes sense, to assist that Court in comprehending the situation that Parliament attempted to confront. We will keep you apprised.

This Canadian case is but one of several that Dan and I are involved in.  I believe the legal actions are crucial for putting pressure on governments and on the fossil fuel industry.  We need support to continue our work.  You can contribute to CSAS  at https://ei.givenow.columbia.edu/#.

Be sure to enter “Gift for Climate Science, Awareness and Solutions” in the Special Instructions box when you get to the payment page.  Alternatively, you can send a check or wire. Full donation instructions can be found at http://csas.ei.columbia.edu/support.  Eunbi (ej2347@columbia.edu) also can provide assistance.


[1] Parliament recognized that emissions “present an unprecedented risk to the environment, including its biological diversity, to human health and safety and to economic prosperity” and that “it is the responsibility of the present generation to minimize impacts of climate change on future generations”.

 

SOURCE

Trans Mountain approval met with promised resistance by First Nations

Trans Mountain
Justin Trudeau announced Tuesday the government has fulfilled its duty to consult Indigenous peoples and will move ahead with the Trans Mountain pipeline despite opposition from several First Nations who say they do not consent to the project.

The Trudeau government has approved the Trans Mountain pipeline expansion and is promising to have shovels in the ground this summer.

But First Nations are responding swiftly with commitments to resist the pipeline in order to protect the land, Indigenous rights, and to address the climate emergency.

The long-awaited decision was announced Tuesday in Ottawa, following months of renewed consultations with Indigenous communities as ordered by the Federal Court of Appeal last August.

Prime Minister Justin Trudeau justified the government’s decision on the basis it “has the potential to create thousands of solid middle class jobs for Canadians,” and that expanding the existing Trans Mountain pipeline’s oil sands output remains within the government’s carbon emission targets under the Paris agreement.

On Monday parliament passed a non-binding motion from Environment and Climate Change Minister Catherine McKenna declaring a climate emergency in Canada.

Trudeau announced Tuesday the government will work with Indigenous stakeholders who have expressed interest in purchasing the pipeline in part or in whole.

He said up to 100 per cent of the pipeline could end up in Indigenous investors’ hands.

But the government’s consultations with First Nations, and its interpretation of free, prior and informed consent — a principle it has vowed to respect to through its commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) — fall far short of Indigenous peoples expectations.’

Speaking at a press conference in Vancouver Tuesday, Tsleil-Waututh Nation (TWN) Chief Leah George-Wilson responded to the government’s decision to approve the pipeline with a promise of renewed litigation in the Federal Court of Appeal.

“We believe that the consultation, once again, missed the mark set by the Supreme Court of Canada — and we will defend our rights,” she said.

“TWN continues to withhold our free, prior and informed consent and are prepared to use all legal tools to ensure our governance rights are respected.”

First Nation leaders in B.C. also predicted a swell of grassroots resistance if the government attempts to begin construction in territories where consent has not been granted. MORE

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Trans Mountain pipeline: will it happen?
Tsleil-Waututh Nation to appeal Trans Mountain expansion once again
Vaughn Palmer: Down to the last tool in the tool box, the legal bills keep climbing for Horgan in pipeline fight

Treaty Rights Remain An Afterthought In Canada’s Law-Making Process

Expect more court battles as long as the Crown has no duty to consult with Indigenous groups before passing laws.

Steve Courtoreille, Chief of the Mikisew Cree First Nation, at Parliament Hill after speaking about legal...
Steve Courtoreille, Chief of the Mikisew Cree First Nation, at Parliament Hill after speaking about legal action against the federal government in Ottawa on Jan. 8, 2013. THE CANADIAN PRESS/ADRIAN WYLD

In October of 2018, the Supreme Court of Canada ruled on a contentious case involving the Mikisew Cree. This dispute stemmed from the Harper government’s introduction of two omnibus bills dating back to 2012. These bills proposed changes to Canada’s environmental protection and regulatory processes, which the Mikisew challenged for violation of a treaty they signed with the Crown back in the late 1800s. The Canadian Constitution legally recognizes and affirms these treaties reached between the Crown and Indigenous groups.

The Indigenous group asserted that if these bills passed, the environment rollback provisions contained within them would harm the environment (such as by permitting mining companies to build structures without government approval). The Mikisew’s position was that this violated their constitutionally protected treaty rights to hunt, fish and trap on their territory. They argued that the Crown had a duty to consult them on the development of such legislation as it impacted their treaty rights.

The group successfully pleaded its case in the federal court, but eventually lost on appeal at the Supreme Court of Canada, where the justices decided 7-2 against them. The majority of the court concluded that the duty to consult in fact did not extend to the law-making process. In reaching this conclusion, however, the court was surprisingly divided.

The underlying purpose of the duty to consult is to facilitate reconciliation between the Crown and Indigenous interests.

Even though the Supreme Court refused to broaden the scope of the duty to consult in the present case, questions surrounding this issue seem far from settled. MORE

RELATED:

What does the media get right, wrong, and how it can improve telling Indigenous stories

Canada Supreme Court rejects Ecuador damages appeal against Chevron


Indigenous villagers from Ecuador want a Canadian subsidiary of US energy giant Chevron to pay for pollution of native lands in the Amazon between 1964 and 1992

Canada’s Supreme Court on Thursday declined to hear an appeal from a group of Ecuadoran villagers seeking compensation from the Canadian subsidiary of US energy giant Chevron over oil pollution in the Amazon jungle.

The indigenous villagers from central Ecuador want the company to pay for pollution of native lands between 1964 and 1992 by Texaco, a US oil subsidiary the firm bought in 2001.

The decision, for which the court did not offer a reason, puts an end to the group’s attempt to sue Chevron Canada Limited for $9.5 billion in compensation.

The original ruling dates back to 2011 and was twice upheld on appeal in Ecuador. But, as the company has no assets in Ecuador, the plaintiffs turned to courts in several other countries — including the US, Canada, Brazil and Argentina — to try and enforce the ruling.

An Ontario appeals court had previously ruled in 2017 that the firm’s Canadian subsidiary was a legally distinct from its US parent company and its assets could not be seized.

The Supreme Court’s decision also comes after an appeals court in The Hague cancelled a September ruling in Ecuador that Chevron pay $9.5 billion in damages. MORE

 

 

Tsilhqot’in gather sacred water from Teztan Biny for Vancouver World Water Day event

The Nation is asking supporters to gather outside the BC Court of Appeal for the ceremony on Friday, March 22

Fresh sacred water collected from Teztan Biny (Fish Lake) will be used at a gathering outside the B.C. Court of Appeal in Vancouver on World Water Day, March 22 to protest an exploratory drilling permit.

The Tsilhqot’in Nation is applying to the Supreme Court of Canada to halt drilling near the lake for Taseko Mine Ltd.’s proposed New Prosperity Mine 185 kilometres southwest of Williams Lake.

On March 1, the Tsilhqot’in Nations’ appeal in the BC Court of Appeal was dismissed.

To augment the March 22 court date, Xeni Gwet’in Chief Jimmy Lulua said the Nation is asking supporters to gather outside the court house at 8:30 a.m. where there will be a special gathering with drumming and songs. MORE

SOVEREIGNTY: DO FIRST NATIONS NEED IT?

Image result for two-row wampumIn our canoe we have all our laws, culture, and beliefs and in your vessel you shall have all your laws, culture, and beliefs, traveling side by side through life as equals never enforcing or interfering in each others affairs as long as the sun shall shine the grass shall grow and the rivers shall flow this will be everlasting.

…It is beyond dispute that at the time of contact Indigenous Nations were politically independent and governing themselves under there own laws. When sovereignty’s synonyms are considered, words such as jurisdiction, power, authority and control are found. I would argue that, since the Supreme Court of Canada has required a First Nation claiming Title to show ‘exclusive possession” which is jurisdiction and control, then that First Nation would also prove their Sovereignty.

Finally, International Law requires that Nation States must not interfere with the internal affairs of other Nation States. To do so would be a violation of recognized sovereignty.

The concept of sovereign non-interference is not exclusive to modern International Law. This concept has been foundational to the initial relationship between European newcomers and Indigenous Nations. Treaties were forged on this concept, most notably the Two-Row Wampum covenant that makes clear the principle of non-interference and mutual respect are the foundation of every Treaty. The principle of ‘non-interference’ is a necessary component of the International legal understanding of Sovereignty.

Why Exert Sovereignty?

The need to exert sovereignty by Indigenous Nations flows from the Colonizer’s assertion that the Crown became sovereign over all the lands and peoples living upon Turtle Island at “Discovery”. The Doctrine of Discovery and the concept of terra nullius meaning – ’empty land’ are the legal foundations upon which European Crowns made pompous claims of sovereignty over Indigenous lands and populations. The Courts have used these doctrines and principles and upheld them to find in favour of the Settler State. MORE

Canada: Trans Mountain Decision: Application Of Existing Principles Or Evolving Standard?

Expectation  that courts will continue to place an increasing emphasis on the meaningfulness of consultation

two person writing on paper on brown wooden tableNik MacMillan@nikarthur /unsplash

In 2004, the Supreme Court of Canada recognized that there is a duty to consult Indigenous groups whenever the Crown is contemplating conduct that could adversely impact asserted or established Aboriginal or treaty rights. Since this time, there have been hundreds of court cases in which Indigenous groups have gone to court to challenge the adequacy of consultation and/or accommodation for certain Crown decisions, particularly in the context of resource development. This has been a challenging area for proponents, with many feeling that the standard to be met is a continually moving goal post.

In 2018, the most widely discussed duty to consult case was the Federal Court of Appeal’s (FCA) decision to quash the Trans Mountain Expansion Project (TMX Project) based, in part, on inadequate consultation with Indigenous groups. While some feel that the Court simply applied existing duty to consult jurisprudence, a closer examination arguably reveals that the FCA applied a stricter standard on certain issues, including accommodation, the standard of review, and the adequacy of written reasons. While it remains to be seen whether other courts will take a similar approach to these issues in the future, the decision highlights the challenges that proponents can face with an evolving standard and some measures that should be taken to minimize risk going forward.

Background on the TMX Project and the FCA Decision

The TMX Project is a proposed twinning of an existing pipeline from Edmonton, Alberta to Burnaby, B.C. designed to bring more of Alberta’s oil to tidewater for export to Asian markets. The project involves the construction of 987 kilometres of new pipeline segments and associated facilities, with approximately 89% of the pipeline route running parallel to existing disturbances. The operation of the proposed expanded pipeline system would increase overall capacity from 300,000 barrels a day to 890,000 barrels a day. It is also projected to increase the number of tankers at the Westridge Marine Terminal in Burnaby from approximately five per month to 34 per month. The tanker traffic would be within an established shipping route with significant vessel traffic. MORE

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

RELATED:

Sask. government carbon plan won’t add up to enough emissions reductions

Supreme Court rules energy companies cannot abandon old wells

Supreme Court of Canada has overturned Redwater Energy lower court decision

An orphan well site near Carstairs, Alta., awaiting proper abandonment and reclamation. (Government of Alberta)

The Supreme Court of Canada has ruled that energy companies cannot abandon their responsibility to clean up old oil and natural gas wells in the case of bankruptcy.

The court ruled 5-2 to overturn the earlier ruling. In doing that, it said that bankruptcy is not a license to ignore environmental regulations.

The Redwater case has been watched closely across the country. Ontario, British Columbia and Saskatchewan all intervened in the case, supporting the Alberta Energy Regulator’s position that the polluter must pay for clean-up before creditors are paid back their loans.

Alberta has been dealing with a tsunami of orphaned oil and gas wells in the past five years. In 2014, the Orphan Well Association listed fewer than 200 wells to be reclaimed. The most recent numbers show there are 3,127 wells that need to be plugged or abandoned, and a further 1,553 sites that have been abandoned but still need to be reclaimed. MORE

 

Bankrupt energy companies await key Supreme Court ruling on old oil wells

The decision could have implications for banks, apart from junior and intermediate oil producers’ access to capital

Image result for abandoned oil wells alberta
Pumpjacks, like this one near Calgary, are used to pump crude oil out of the ground after a well has been drilled. Thousands of oil wells have been abandoned across Alberta without proper remediation. (Todd Korol/Reuters)

Trustees for bankrupt energy companies will learn Thursday whether they can refuse to pay clean up costs for old and inactive oil and gas wells in Alberta.

The Supreme Court of Canada is set to rule on whether the trustee for bankrupt Redwater Energy Corp. can hand over the remediation responsibilities for old and inactive oil and gas wells to Alberta’s Orphan Well Association — while still keeping its more valuable wells and facilities, which can be sold to repay the company’s debt.

The case has been closely watched in the Calgary oilpatch and will have major implications across the country’s resource sectors as the Supreme Court will determine whether debt holders have a higher priority over environmental clean-up responsibilities in bankruptcy cases. MORE

RELATED:

Albertans may face $8B bill for orphan wells unless rules change, lawyer says