Court to hear case on whether asylum agreement with U.S. violates charter

OTTAWA — A long-awaited legal look into whether the U.S. remains a safe country for refugees begins today at a Federal Court in Toronto.

At issue is the Safe Third Country Agreement that prohibits people from entering Canada from the U.S. —  and vice versa — at official border crossings and asking for asylum. It was signed by the two countries 17 years ago on the grounds that both are safe places and so those seeking sanctuary should apply in the first country they arrive in.

But as the U.S. has tightened its asylum rules and regulations in recent years, the deal has come under intense scrutiny over concerns that actions taken by the Trump administration no longer make the U.S. a safe harbour for those seeking asylum.

In turn, when Canada rejects people at the border, their charter rights are being violated, advocacy groups and the individual litigant in the case will argue this week as the Federal Court finally hears the challenge begun in 2017.

“Refugee claimants are being detained indefinitely, in conditions that are nothing short of cruel and unusual, simply for seeking protection,” reads one of the memos submitted to the court.

The legal challenge to the agreement was filed after a Salvadoran woman tried to enter Canada at an official border crossing to seek asylum, arguing she was being brutally targeted by gangs at home. She was told she was inadmissible because of the deal. MORE

Victoria takes fight over plastic-bag ban to Supreme Court of Canada


Victoria Mayor Lisa Helps, centre, says the city will see leave to have the Supreme Court of Canada hear an appeal of a B.C. Court ruling that overturned a local bylaw prohibiting the use of single-use plastic bags. She is supported by Tofino Mayor Josie Osborne, left, and Squamish Mayor Karen Elliott at an announcement in Vancouver on Wednesday, Sept. 25, 2019 | Photo: Jeremy Hainsworth, Glacier Media

The fight over Victoria’s ban on single-use plastic bags is going all the way to the Supreme Court of Canada.

Mayor Lisa Helps confirmed Wednesday that Victoria will seek leave to appeal a lower court decision that struck down the city’s bylaw in July.

“The fundamental bottom line is that this is more than about plastic bags,” she said. “The decision, if allowed to stand, could potentially, substantially challenge the authority of local governments to make decisions in line with our communities.”

Under the bylaw, businesses were barred from providing customers with single-use plastic bags and instead had to charge 15 cents for a paper bag or $1 for a reusable bag.

The Canadian Plastic Bag Association, which represents manufacturers and distributors of plastic shopping bags, launched a court challenge before the bylaw took effect in July 2018.

Victoria won in B.C. Supreme Court, but lost at the B.C. Court of Appeal, which found that the primary purpose of Victoria’s bylaw was to protect the natural environment rather than to regulate business. As such, the city should have sought provincial approval for the bylaw, but failed to do so, the court said.

Helps said Victoria fundamentally disagrees with the ruling and will argue that it runs contrary to the principle that “lawmaking and implementation are often best achieved at the level of government that’s closest to the citizens affected.”

Helps said the principle was previously mentioned by the Supreme Court of Canada and will form the basis for the city’s appeal.

She cautioned, however, that the Supreme Court only hears about 10 per cent of cases that seek leave to appeal.

“So it’s a long shot, but we think it’s an important enough issue for municipalities across this country.”

The Canadian Plastic Bag Association said in a statement that it’s considering all options in consultation with legal counsel and will comment in due course.

Helps announced the appeal at the Union of B.C. Municipalities convention in Vancouver. She was accompanied by Tofino Mayor Josie Osborne, Squamish Mayor Karen Elliott and other municipal officials.

Osborne, whose community recently passed its own ban on single-use plastic bags and straws, thanked Helps and Victoria council for their work on the issue.

“I’m really happy to see the kind of leadership from a city like Victoria, because small municipalities like Tofino and others simply don’t have deep pockets to be able to afford legal cases like these,” she said.

Elliott added that the Court of Appeal ruling strikes at the heart of local government’s power to regulate business practices.

“Local governments are part of the solution and we want the ability to reflect our communities’ values and long-term goals in our bylaws and regulations without having to ask permission,” she said.

Victoria is pursuing the appeal even as the federal and provincial governments contemplate their own bans on single-use plastics.

The province is currently getting public feedback on the issue, while the federal government announced in June that it will ban plastic bags and other items as early as 2021.

Helps acknowledged those efforts, but said the city felt the Court of Appeal decision had too many other implications to let it stand.

“So that’s why we’re seeking leave to appeal, but absolutely working with the province at the same time.”

She said the remarkable thing about Victoria is that since the bylaw was struck down, up to 97 per cent of businesses are still operating as if the bylaw was in place. “So there’s clearly social licence and there’s also political will,” she said.

The appeal will be handled by the city’s in-house legal counsel without the need to hire outside lawyers, Helps said. SOURCE

Scheer says he’d fast-track pipeline challenges straight to Supreme Court

Conservative leader proposes circumventing lower court appeals ‘so that we can get certainty’ on projects


Conservative Leader Andrew Scheer listens to questions during a campaign event in Ottawa on Sept. 14. (Justin Tang/The Canadian Press)

A Conservative government would overcome legal objections to building new petroleum pipelines by fast-tracking any cases right to the Supreme Court of Canada, party leader Andrew Scheer says.

Scheer and other Conservatives have for years said Ottawa has to “assert federal jurisdiction” to get important projects built, but he has not until now explained what that would mean in practice.

At a campaign stop Wednesday, Scheer was pushed on comments he made in recent days about asserting jurisdiction in the face of objections from Indigenous communities or provincial governments, including Quebec.

“It’s about fast-tracking some of the questions that have been raised by people who oppose the project,” he said.

“Fast-tracking those cases to the Supreme Court — referring those types of jurisdictional questions to the Supreme Court right away so that we can get certainty, instead of watching these court cases move slowly up and up, being appealed. We would have taken that directly to get finality on those decisions.”


Construction at the Trans Mountain tank farm in Burnaby, B.C., in June 2019. (Ben Nelms/CBC)

The inability to get pipelines built has become a major source of frustration and anger in Alberta, where politicians from all parties believe other jurisdictions and communities are deliberately landlocking Alberta oil, harming its economy.

The Trans Mountain pipeline expansion, in particular, has been hit by court challenges from provincial and municipal governments, Indigenous communities and environmental groups.

Indigenous communities and environmental groups challenged federal approval of the expansion and won in a federal Court of Appeal case. After the federal government re-did consultations and approved the project again last spring, the same groups filed new objections. The court has agreed to hear Indigenous complaints, but rejected those brought by others.

Those cases could eventually make their way to the Supreme Court.


Construction at the Trans Mountain tank farm in Burnaby, B.C., in June 2019. (Ben Nelms/CBC)

The Supreme Court is expected to hear an appeal early next year from the British Columbia government of a B.C. Court of Appeal opinion that the province couldn’t restrict what flows through the pipeline, which is considered federal jurisdiction because it crosses provincial borders.

The B.C. case was seen as the final nail in the coffin for former pipeline owner Kinder Morgan’s plans to proceed with the project.  MORE
RELATED:

The justice system still fails to protect Indigenous women and girls

“Even though the SCC made some important findings in this case, their caution that the justice system has a lot more work to do applies equally to them. We need more than the “important step forward” they commended themselves for — we need a wholescale change. ” — Pam Palmater


“Her life mattered. She was valued. She was important. She was loved.”  R. v. Barton [2019] S.C.J. No. 33.

Cindy Gladue was an Indigenous woman originally from Alberta, where she grew up with her four siblings and extended family. She was also the mother to three daughters and her family described her as both a loving mother and caring auntie. She had close friends and always dreamed about being the first in her family to go to university. Cindy Gladue loved and was loved. She did not deserve her violent death in 2011 nor the indignity done to her body after.

She is now one of the many thousands of murdered and missing Indigenous women and girls in Canada — a growing crisis that represents grave human rights violations. The trial of the man who admittedly committed this act of violence against Cindy is an example of how defective Canada’s justice system is when it comes to Indigenous women victims and how negligent Canada has been in ensuring the basic human rights of Indigenous women and girls are met.

In this column, there will be no details about Cindy’s appearance, what she wore the night she was killed, where she was killed, whether she knew her killer, her level of education, her health status, or what she did for a living — because none of the facts is relevant to her death. Cindy is not to blame for her death. Cindy did not kill herself. Cindy did not engage in a dangerous knife fight or try to kill someone.

Regardless of which version of the story is accepted by the next trial judge — that she was killed by a male trucker who violently cut an 11-cm gash in her vagina, or that she died from a tear from his violent, but unarmed interaction with her — she still died as a result. According to the SCC quoting from evidence at trial, the trucker then tried to hide evidence, change the crime scene and lie about his involvement. His name doesn’t deserve to be said aloud, nor does he get to hide behind any of the racist or sexist excuses he used at trial to defend himself. None of the evidence referred to at trial or the SCC indicates that he should be believed. Cindy’s life story does not get to be narrated by the man who admits to committing this violence against her.

Sexualized violence against Indigenous women and girls in Canada has been allowed to continue in plain sight by government officials, police officers, lawyers and judges who have treated Indigenous women and girls as though they are less worthy of life. In fact, were it not for the lengthy and persistent advocacy of Indigenous women and their allies, Canadians would still be unaware of the crisis. MORE

RELATED:

Law groups welcome MMIWG report, pledge to consider and reflect on inquiry’s ‘Calls for Justice’

First Nations and the federal election: An exercise in self-termination

This warning by Russ Diabo posted in Ricochet, July, 2015 is even more timely today.

Image result for Ricochet: First Nations and the federal election: An exercise in self-termination

For the past several weeks, I have observed with increasing frequency a call for First Peoples to get out for the upcoming federal election. The mainstream media and now the national chief of the Assembly of First Nations, Perry Bellegarde, are urging Indigenous people to vote, particularly since it is looking like a three-way race between the federal leaders and their parties (sorry, Elizabeth May).

…I took particular notice of an opinion piece by Tasha Kheiriddin in the National Post. Kheiriddin was responding to Regina Crowchild, a councillor with Alberta’s Tsuu T’ina Nation, who said that she would not want to see “an alien government’s polling station” on her reserve, adding that “if we join Canada in their election system, that’s a part of genocide.”

Here was Kheiriddin’s counterargument:

The reality is that, paradoxically, if First Nations are truly interested in more autonomy, they will never get it without cooperation from the federal government. That means electing a government that is sympathetic to their perspective — and they will never do so unless they go to the polls. Voting is not capitulation, but a recognition that in a democracy, you need to participate if you want your voice to be heard.

Despite the mainstream media’s pleas, we must remember as First Nation individuals we are connected to our families, communities and nations. Therefore we have collective or group rights, which Canadian citizens — whether founding settlers or recent immigrants — cannot claim.

In fact, Canada (including the Supreme Court of Canada) bases its asserted sovereignty and territorial integrity on the racist, colonial Christian doctrine of discovery. Kheiriddin’s argument makes sense only if Indigenous peoples already consider themselves as “Canadians.” MORE

Jody Wilson-Raybould and the paradox of reconciliation in Canada

Image result for hayden king

Hayden King is Anishinaabe from Beausoleil First Nation on Gchi’mnissing in Huronia, Ontario. He is the Executive Director of Yellowhead Institute, based in the Faculty of Arts at Ryerson University.

…At the end of her meticulous recounting of what she called “inappropriate” pressure her colleagues applied in an effort to defer SNC-Lavalin’s prosecution, Ms. Wilson-Raybould linked these two threads: “my understanding of the rule of law has been shaped by my experience as an Indigenous person and leader. The history of Crown-Indigenous relations in this country includes a history of the rule of law not being respected … And I have seen the negative impacts for freedom, equality, and a just society this can have firsthand.”

Knowing these dynamics better than most, and despite any of her efforts, Ms. Wilson-Raybould has been a part of a government responsible for perpetuating lack of respect for the rule of law, in this case in relation to Indigenous issues. How can all of this be reconciled? MORE

Earlier this year, in response to widespread outrage, “rule of law” was official government messaging when the RCMP served a pipeline company’s injunction in Uni’stot’en territory, on lands the clan has not agreed to share in a treaty (what the Supreme Court calls “title” lands). From Oka, through Ipperwash, Caledonia, Elsipogtog, and two dozen other examples of conflict over land, the rule of law is a prime-ministerial invocation that twists the law.

On criminal justice, the Supreme Court has demanded that the over-incarceration of Indigenous peoples be addressed with unique sentencing protocols known as the Gladue Principle. The directive is overwhelmingly ignored by lower courts, provincial and federal officials, and incarceration rates continue to rise.

Law after law dating back to the Gradual Civilization Act in the mid-1850s have discriminated against Indigenous women. Canada has argued in court that the Charter of Rights and Freedoms doesn’t apply to First Nation women. Indeed, there is still gender discrimination in the Indian Act.

Indigenous children are somehow invisible to the rule of law, too. Last week the Canadian Human Rights Tribunal issued its seventh non-compliance order against Canada for failing to fully and completely end discriminatory policies.

Late last year, in a speech to First Nation leaders in B.C., and on the eve of her demotion to Veterans Affairs, Ms. Wilson-Raybould called out those among us who have little faith in Canadian institutions and laws. These individuals, she said, “in the name of upholding Indigenous rights, critically oppose almost any effort to change [within the Canadian constitutional framework].” This is an apt characterization, though to be fair, the heretics have ample evidence of corrupt institutions on their side. MORE

RELATED:

Wilson-Raybould’s place in Liberal party at risk after SNC-Lavalin testimony

Senator Murray SInclair: Education is important for reconciliation to occur

The educational systems of this country bear a large share of the responsibility for the current state of affairs. 

Image result for Murray SInclair
Senator Murray Sinclair

Education is important.

All students, Aboriginal and non-Aboriginal, need to learn that the history of this country did not begin in 1492, or even with the arrival of Vikings much earlier. They need to learn about the Aboriginal nations that the Europeans met, about their rich linguistic and cultural heritage, about what they felt and thought as they dealt with such historic figures as Champlain, LaVerendrye and the representatives of the Hudson’s Bay Company. They need to learn why they negotiated treaties and that they negotiated them with purpose and integrity and in good faith. They need to learn why Aboriginal leaders and elders fight so hard to defend those poorly worded treaties and what they represent to them and why they have been ignored by Euro-Canadian settlers and governments.

They need to learn about what it means to have inherent rights, what those are for Aboriginal people, and the settler government’s obligations, in those areas where treaties have never been negotiated in the first place. They need to learn of the many issues that are ongoing and why.

They need to learn that the doctrine of discovery – the politically and socially accepted basis for European claims to the land and riches of this country – has never been accepted in Canadian courts and has been repudiated around the world, recently by the United Nations and the World Council of Churches.

But this is not enough. As I said before, mainstream Canadians see the dysfunction of Aboriginal communities but they have no idea how that happened, what caused it, or how government contributed to that reality through residential schools and the policies and laws in place during their existence. Our education system, through omission or commission, has failed to do that and misunderstanding, ignorance, and racism has resulted, on the one hand, and shame, humiliation, a lack of self-respect and anger has occurred, on the other. MORE

Obligation to deal with proper Wet’suwet’en title holders

If TransCanada doesn’t like it, they can go around Wet’suwet’en Territory

I am appalled at the government of B.C. regarding both its insistence on pressing forward with hydraulic fracturing at this time of climate crisis and with its clear choosing of offensive, disrespectful and contemptuous actions to the Wet’suwet’en Nation to accomplish this goal.

I strongly condemn the RCMP’s raid on Wet’suwet’en Nation, their forceful removal of land defenders from their territory and their continued occupation. The RCMP actions are in contravention of our governments’ commitments to reconciliation at all levels, in contravention of the Supreme Court of Canada’s repeated rulings on title and rights, in contravention of the United Nations Declaration on the Rights of Indigenous People and in contravention of what is just decent and right.

Provincial and federal levels of government knew that the hereditary chiefs of the Wet’suwet’en are the title holders of that land. They had an obligation to inform TransCanada of this and to deal with the proper title holders of the land involved. If TransCanada doesn’t like it, they can go around Wet’suwet’en Territory or reinvest in some activity that might have a chance of getting us out of some of the many crises we currently face on our planet.

I am appalled at the government of B.C. regarding both its insistence on pressing forward with hydraulic fracturing at this time of climate crisis and with its clear choosing of offensive, disrespectful and contemptuous actions to the Wet’suwet’en Nation to accomplish this goal.

I strongly condemn the RCMP’s raid on Wet’suwet’en Nation, their forceful removal of land defenders from their territory and their continued occupation. The RCMP actions are in contravention of our governments’ commitments to reconciliation at all levels, in contravention of the Supreme Court of Canada’s repeated rulings on title and rights, in contravention of the United Nations Declaration on the Rights of Indigenous People and in contravention of what is just decent and right.

Provincial and federal levels of government knew that the hereditary chiefs of the Wet’suwet’en are the title holders of that land. They had an obligation to inform TransCanada of this and to deal with the proper title holders of the land involved. If TransCanada doesn’t like it, they can go around Wet’suwet’en Territory or reinvest in some activity that might have a chance of getting us out of some of the many crises we currently face on our planet. MORE

Can Slave Labour Charges Against Canadian Company Be Heard in Court in Canada? Supreme Court of Canada Hears Arguments Today

Protest at Nevsun Mining AGM 2017

Today, the Supreme Court of Canada is hearing an appeal by Nevsun Resources Limited (TSX: NSU/NYSE MKT: NSU) of lower court rulings that accusations against it regarding the use of forced labour at its Bisha mine in Eritrea should be heard in British Columbia, not Eritrea. MiningWatch Canada is not directly involved in the lawsuit itself, but we are intervening in the Supreme Court appeal because we are deeply concerned that the victims of abuse in connection with Canadian mining operations internationally should be able to seek justice in Canada.

The Court of Appeal for British Columbia upheld the ruling by the Supreme Court of British Columbia rejecting efforts by Vancouver-based Nevsun to dismiss a lawsuit brought by three Eritrean men who allege they were forced to work at the company’s Bisha mine in that country. Nevsun was granted leave to appeal that judgment to the Supreme Court of Canada. In addition to the plaintiffs in the case, a number of groups will be intervening along with MiningWatch: Amnesty International Canada, together with the International Commission of Jurists; the Mining Association of CanadaEarthRights International and the Global Justice Clinic at New York University School of Law; and the International Human Rights Program at the University of Toronto Faculty of Law. The factums for the appeal are available on the Supreme Court’s case information page. MORE

Pipeline blockade is a sign of deeper troubles

 

Governments of B.C. and Canada claim agreements with elected band councils constitute consent, even though Supreme Court cases — including 1997’s Delgamuukw versus the Queen, which involved the Gitxsan and Wet’suwet’en — have recognized traditional governance forms, including the hereditary chief and clan system, on traditional territories. Elected band councils are more like municipal councils that have limited jurisdiction only over reserve lands.

The hereditary chief system was in place long before settlers and colonizers arrived. Chiefs, clans and house groups are responsible to the land and the people, and chiefs can be removed if they fail to fulfil their duties. The band council system is a product of the Indian Act, which also gave us residential schools.

As my good friend Miles Richardson, David Suzuki Foundation board member and former head of the B.C. Treaty Commission and Haida First Nation, told the Vancouver Sun, “When you look at the political world and the relationship between First Nations and the Crown, there’s a mighty struggle going on between two world views. There’s the Indigenous worldview manifested in the nation-to-nation commitment, and the colonial view, a 200-year-old, failed policy that was denounced by the Truth and Reconciliation Commission and apologized for.” MORE