Siding with First Nation, N.S. judge overturns Alton Gas approval

Province and Sipekne’katik First Nation ordered to resume consultations for 120 days

Before Alton Gas can proceed with its proposed natural gas storage facility near the Shubenacadie River, the province must resume consultation with Sipekne’katik First Nation for 120 days. (Shawn Maloney)

1. The Nova Scotia Supreme Court has ordered the province to resume consultations with Sipekne’katik First Nation over a controversial natural gas storage project on the banks of the Shubenacadie River.

Justice Frank Edwards released his decision Tuesday, writing that former Nova Scotia environment minister Margaret Miller was wrong when she concluded the province had adequately consulted with the First Nation about the project.

He ordered the parties to resume talks for 120 days, “or for such time as the parties mutually agree,” but gave some leniency on a start date because of the ongoing coronavirus outbreak. The parties could wait until the province’s chief medical officer of health declares the crisis is over, or agree on an “alternative remote arrangement.”

Sipekne’katik had challenged in court Miller’s 2016 decision to grant industrial approval to Alton Gas, a subsidiary of Calgary-based energy company AltaGas, for a proposal to store up to 10 billion cubic feet of natural gas in underground caverns.

The Alton Gas project would create the caverns by using water from the Shubenacadie River to flush out nearby natural salt deposits.

Sipekne’katik had appealed the decision once before, and the judge found some procedural unfairness in the province’s process. But Miller later upheld her decision, leading to the latest appeal.

February hearing

Lawyers for the province, the band and Alton Gas made their arguments for the judicial review hearing in Nova Scotia Supreme Court at a two-day hearing in February.

The focus of the review was the Crown’s duty to consult with Indigenous peoples on matters that could affect their treaty and Aboriginal rights, as laid out in Canada’s Constitution Act.

Ray Larkin, the lawyer representing Sipekne’katik First Nation, told the court there was no “depth” to the province’s consultation with the band over the Alton Gas project.

Sean Foreman, the lawyer for the government, said the province upheld its duty to consult and any perceived failure was the result of an “uncooperative” approach from the band. He said the judicial review should be dismissed.

‘Palpable and overriding error’

Edwards ruled in favour of Sipekne’katik, reversing Miller’s 2019 decision to uphold her industrial approval.

At that time, Miller said consultation with the band had been sufficient.

“The Minister’s decision was not supported by the evidence,” Edwards wrote in his decision.

“While there had been extensive consultations regarding the potential environmental impacts of the Project, the core issue of Aboriginal title and treaty rights was never specifically engaged. The Minister therefore committed palpable and overriding error when she concluded that the level of consultation was appropriate.

“I also found that, but for her misapprehension of the evidence, the Minister would have concluded otherwise.”

Aboriginal title claim

Edwards wrote that Sipekne’katik’s treaty and Aboriginal title rights were “never specifically discussed” in earlier consultations.

Larkin argued at the hearing that Sipekne’katik has a legitimate Aboriginal title claim to the land and water that is proposed to be used for the Alton Gas project, which warrants “deep” consultation on the project.

In his decision, Edwards noted that deep consultation is not defined by case law and therefore varies by the circumstances. In this case, Edwards said, the strength of the asserted title claim would be an important factor.

“The Project is a significant industrial intrusion on an area the Band is claiming as its own. Massive amounts of salty brine will be pumped into the Shubenacadie River,” he wrote.

While studies and research indicate “minimal” environmental impacts, Edwards said, the full effects will remain unclear until the project is operational.

Edwards said it will be “vital” for the parties to discuss the strength of the claim.

“The Band still does not know what the Province thinks of the strength of its title claim. To restart the consultation the Province must remedy that deficiency,” he wrote.

Edwards said the province can no longer give a preliminary assessment of the title claim, but must give a tentative assessment, and give the band the opportunity to respond.

Outcomes of consultation

In a phone interview Tuesday, Larkin told CBC News band members do not agree on what they want to see happen with the Alton Gas project.

“Some members would like to see it stopped completely,” he said. “Other members would like to see a proper compensation plan that would be adopted. And so those things will have to be worked out through consultation and then internally in the band.”

Larkin said he had not spoken with his client since the decision was released. Sipekne’katik Chief Mike Sack did not respond to an interview request.

A spokesperson for the Department of Environment said the province takes the duty to consult “very seriously” and was preparing to start a virtual consultation process immediately.

Although the duty to consult rests entirely with the province, Alton Gas has participated in past consultations and presented arguments at the judicial review.

In a written statement after Edwards released his decision, Alton Gas said it “remains committed to ongoing, open dialogue with the Mi’kmaq of Nova Scotia including Sipekne’katik about the Alton Project.”

‘Back to the drawing board’

Larkin said he thinks the decision will shape the way the province consults with First Nations on future industrial approvals.

“I think what this decision points to is the province needs to go back to the drawing board and have a stronger commitment to making consultation on Aboriginal treaty rights effective,” Larkin said. SOURCE

Expect More ‘Conflict’ If Feds Push TMX Pipeline Forward: Indigenous Negotiator

Canada has still not figured out what “duty to consult” really means.

A woman holds a sign with a drawing of Prime Minister Justin Trudeau’s face on a snake as protesters opposed to the Trans Mountain pipeline extension demonstrate in Vancouver on June 4, 2018. DARRYL DYCK/CP

OTTAWA — Canadians can expect more disruptive protests if the federal government pushes forward with the Trans Mountain pipeline expansion against the wishes of some of the Indigenous communities it will pass through, says a British Columbia lawyer and Indigenous negotiator.

In the last month, Indigenous people across the country set up barricades on train tracks, roads and bridges, in solidarity with Wet’suwet’en Nation hereditary chiefs, some of whom object to the construction of a natural-gas pipeline through their traditional territory.

The conflict laid bare the fact that nearly four decades after treaty rights were affirmed in the Constitution, Canada has not figured out what the “duty to consult” Indigenous people on decisions that affect their rights really means.

Watch: Scheer claims Trudeau will give Indigenous groups a ‘veto’ over TMX

 

Cynthia Callison, a negotiator for agreements among Indigenous peoples, governments and private sector developers, said while there are some distinct differences between the natural-gas pipeline and the Trans Mountain project, both projects have gone ahead despite the fact that not all Indigenous communities affected by the projects have given their consent.

Numerous elected band councils along the Coastal GasLink pipeline route agreed to the project and the B.C. government approved it. But it doesn’t have the collective backing of the hereditary chiefs of the Wet’suwet’en, who claim authority over the traditional territory of their nation that isn’t on a reserve.

“There will be conflict,” said Callison, a lawyer and member of the Tahltan Nation in northwestern B.C. “They clearly don’t have the support but they made a decision based on a model of risk — ‘Do we have enough Indigenous people that support this project?’”

Callison said the United Nations Declaration on the Rights of Indigenous Peoples sets a standard for “free, prior and informed consent” from Indigenous Peoples for projects that affect their territories. At a Wet’suwet’en solidarity protest in Ottawa in late February, several protesters carried signs saying “consultation is not consent.”

Callison said even if the courts agree that just consulting on a project is adequate in law, it is not in the spirit of reconciliation, or the promise of nation-to-nation negotiation between Canada and Indigenous Peoples, if a government or a company says it’s OK to proceed without having secured consent.

Furthermore, said Callison, different nations will have a different thresholds for how many people have to agree, and every nation will have its own traditions about who gets to make that call, and what it considers acceptable accommodations for their concerns.

“You’re not going to find a definitive checklist based on what needs to be done to get support from Indigenous people,” said Callison. “If the company wants to rely on, or wants to risk going to court and having a court decide, that’s not in the spirit of getting consent.”

That lack of a clear road map is a major frustration for developers, said Calgary lawyer Maureen Killoran, who represents project proponents.

“When you can’t really graph what the result should be if certain hurdles are cleared then that becomes very difficult for an investor or proponent to properly assess the risk of a project,” she said.

Evolution of duty to consult relatively short

The evolution of the duty to consult in Canada is still relatively short, most of it since the Constitution Act of 1982 recognized treaty rights in Canada.

Many court cases have looked at whether particular processes to consult Indigenous communities have been proper. Killoran said the courts have not reached consistent conclusions.

The process generally begins with the company seeking to build something, but courts have made clear that the government, not the third party, needs to fulfil the duty to consult.

The Trans Mountain expansion project will build a second, bigger oil pipeline roughly parallel to an existing one between Edmonton and Burnaby, B.C.

In Trans Mountain’s case, its previous builder Kinder Morgan Canada recorded 24,000 engagements with Indigenous communities in 2012 and 2013, before it officially applied to the National Energy Board to proceed with the expansion. The National Energy Board then undertook its hearing process, engaging with 131 Indigenous communities and organizations. Some of the conditions the NEB placed on the pipeline responded to Indigenous concerns.

Prime Minister Justin Trudeau speaks at the Trans Mountain Terminal in Edmonton on July 12, 2019. ASON FRANSON/CP

 

Then in early 2016, a few months after the Liberals came to power, the government announced it was extending the consultation with Indigenous communities several months to make sure things were done properly. It would ultimately base its consultation on what the Federal Court of Appeal said the government did wrong when it approved a different pipeline, the Northern Gateway pipeline. The courts killed that project in June 2016.

When the federal cabinet approved the Trans Mountain project for the first time in November 2016, Prime Minister Justin Trudeau said his government had done what was necessary. The government was so confident that in the spring of 2018 it bought the existing pipeline when Kinder Morgan Canada decided to walk away from it amid political turmoil.

But that confidence was misplaced: the Federal Court of Appeal said in August 2018 that the government sent in “note-takers” to hear Indigenous concerns without any real plan to do anything about them.

The government then set out to do another round of consultations, hiring former Supreme Court justice Frank Iacobucci to oversee them in an attempt, once and for all, to get it right.

‘You need to have support from Indigenous people’

The communities that objected the first time still felt they hadn’t been listened to, and that the government’s process was a rubber-stamping exercise to appease the court. Last month, the Federal Court of Appeal disagreed, ruling the government had fulfilled its obligation.

The decision also said that while not all the concerns raised by the communities had been accommodated, requiring that would give the communities a “de facto veto” over the project and the law doesn’t require that.

Killoran said the industry sees that decision as clear and hopeful. Callison said without consent, there will be more conflict.

“You need to have support from Indigenous people,” she said. “If you’re going to push ahead and rely on a consultative process or a consultative checklist that doesn’t result in Indigenous people’s consent it doesn’t really matter what that process looks like.”  SOURCE

‘Borderline insulting’: Indigenous group could launch unprecedented challenge if Ottawa rejects Frontier

‘From our perspective, no matter what decision is made, there needs to be consultation’: Fort McKay Metis Nation

Alberta Premier Jason Kenney: “I am sick and tired of politicians and environmental activists only listening to First Nations that are opposed to development.”Larry Wong/Postmedia

CALGARY — An Indigenous group that stands to benefit from Teck Resources Ltd.’s Frontier oilsands project, says it would launch a legal challenge against the federal government if it rejects the development.

“We do recognize that there are ways that we can go – and that’s one,” said Ron Quintal, president of the Fort McKay Metis Nation, about launching a legal challenge if the Frontier project is rejected. “We are prepared.”

Quintal says the government has yet to consult with his group.

The Fort McKay Metis are one of the 14 Indigenous groups that have signed benefits agreements with Teck; others include the Fort McKay First Nation and the Athabasca Chipewyan First Nation.

Ron Quintal is president of the Fort Chipewyan Metis Nation. Quintal says that band will sue Ottawa if it rejects the Frontier oilsands project. Cullen Bird/Fort McMurray Today/Postmedia Network

Quintal said his group is sending Environment and Climate Change Minister Jonathan Wilkinson a letter this week outlining his community’s concerns as Ottawa’s end-of-February deadline for a decision on the Frontier oilsands project approaches.

“From our perspective, no matter what decision is made, there needs to be consultation,” he said, adding that it’s “borderline insulting” that the federal government would look to cancel the $20.6-billion project that would directly benefit his community, then look to provide an aid package to the province more generally. The president was referring to an unconfirmed news report that the federal government was going to reject the project but will offer Alberta a financial package as compensation.

“We’ve already had one major industry taken from us — that’s the fur trade,” Quintal said, adding, “We want to earn our way.”

The Fort McKay First Nation declined to comment on whether they would also launch a legal challenge if Ottawa rejects the project, but the group reiterated its support for the project.

“We believe, with necessary government action on cumulative effects, that Frontier can strike the right balance between environmental and Treaty rights protection and create economic opportunities for Fort McKay and its members,” Chief Mel Grandjamb said in a release.

If a legal challenge is launched, it would mark a new type of challenge launched by an Indigenous community arguing their rights have been infringed by a project being rejected.

“There’s no precedent for or against this type of claim. It’s untested ground,” said Dwight Newman, a professor at the University of Saskatchewan and the Canada Research Chair in Indigenous Rights in Constitutional and International Law.

Newman said the Crown’s duty to consult normally arises when the government takes an action that would potentially infringe on an Indigenous group’s rights. For a group to argue that a rejection of a development requires consultation, he said, they would need to argue that rejection is also a violation of their rights.

He said it’s possible such an action could be successful, but there’s no relevant case law. “It’s just not really been tested in court,” Newman said.

The Alberta government, which has steadily increased pressure on Ottawa to approve the Frontier project, said it is willing to support a legal challenge.

Should the federal government substitute politics for the regulatory process, they will be betraying the 14 First Nations that have signed benefits agreements with Teck

Alberta Premier Jason Kenney

“I am sick and tired of politicians and environmental activists only listening to First Nations that are opposed to development,” Kenney said, adding that his government is open to financially supporting a legal challenge if the federal government rejects the project.

Last year, the Alberta government set up a $10-million litigation fund to support First Nations groups in favour of natural resource development. The fund was initially launched to help Indigenous groups opposed to Bill C-48, a federal law that banned oil tankers from the northern part of British Columbia’s coastline.

On Monday, Kenney also released a letter dated Feb. 5 to Prime Minister Justin Trudeau calling on the federal government to approve the Frontier project. In a handwritten post script, Kenney said, “We think it is essential that Canada has a regulatory process that is not substituted to politics.”

The letter’s release comes as Athabasca Chipewyan First Nation, one of 14 Indigenous groups that have signed onto the project, have asked Ottawa to postpone its decision on the project.

In the letter, Athabasca Chipewyan Chief Allan Adam asked the federal government to delay a decision on Frontier while it continues to consult with the Alberta government on the effects of the project. Adam said the Alberta government “has not yet taken the appropriate actions” to mitigate the effects of the project.

We are still talking with Alberta and remain hopeful that progress can be made from now until the end of February, when Cabinet makes its decision on project approval

Athabasca Chipewyan Chief Allan Adam

“We are still talking with Alberta and remain hopeful that progress can be made from now until the end of February, when Cabinet makes its decision on project approval,” Adam wrote. “However, this seems increasingly unlikely within the prescribed timelines for a final decision on the project.”

Finance Minister Bill Morneau told reporters in Calgary on Monday that cabinet would “take a look at the letter” but added the federal government has yet to make a decision on the project.

“We have not yet come to that decision. It has not come to cabinet formally and for that reason, I don’t have anything to say about that project at this time,” Morneau said.

On Monday, Morneau also said the federal government would begin consulting with Indigenous groups on the potential to buy a stake in the Trans Mountain pipeline expansion project, which is now estimated to cost $12.6 billion.

Multiple Indigenous groups in Alberta, Saskatchewan and British Columbia have expressed their interest in buying stakes in the pipeline project that will carry 590,000 barrels of oil per day from Alberta to B.C.

Some analysts also expect major institutional investors are interested in purchasing a stake.

Stifel First Energy analyst Ian Gillies wrote in a Monday research said Toronto-based private equity group Brookfield Asset Management Inc. could be in the running.
“One potential dark horse could be Brookfield (who owns North River Midstream) because it recently completed a $20 billion capital raise and continues to have excellent access to capital markets,” Gillies wrote. “We would also expect various Indigenous groups to pursue acquiring the pipeline.” SOURCE

 

 

What we mean when we say Indigenous land is ‘unceded’

Inside the Gidimt’en Checkpoint on Wet’suwet’en territory in December 2019. The camp was dismantled by Coastal GasLink contractors in early 2019, and then rebuilt and reoccupied. Photo by Michael Toledano

You might be living on unceded land.

To be more precise: the Maritimes, nearly all of British Columbia and a large swath of eastern Ontario and Quebec, which includes Ottawa, sit on territories that were never signed away by the Indigenous people who inhabited them before Europeans settled in North America. In other words, this land was stolen.

What to do about it, however, is deeply complex ⁠— and legal questions about how to handle claims to unceded land have become a subject of public discussion as members of the Wet’suwet’en Nation in northeastern British Columbia have reoccupied their territory and attempted to block the Coastal GasLink pipeline. Similar cases over Indigenous land titles are moving through courts across Canada.

Canada’s Constitution is clear that Indigenous land rights exist, said Benjamin Ralston, a lecturer and researcher at the Indigenous Law Centre at the University of Saskatchewan. But in practice, fights over exactly what those rights are can take decades to resolve in court or in treaty negotiations, revealing “cognitive dissonance” in the system.

“The real problem is, what do we do about it now, while these slow processes are proceeding?” he said.

In the case of the Wet’suwet’en and Coastal GasLink, at issue is a divide between the traditional Wet’suwet’en legal system, Canada’s legal system, those who have stood to protect the land in question and those who want to see the pipeline built.

Under Wet’suwet’en law, authority over the nation’s 22,000 square kilometres of unceded territory lies with hereditary chiefs from five clans, who oppose the pipeline. However, there are also five elected band councils created by Canada’s colonial Indian Act, and some of the councils have supported the project.

A 1997 Supreme Court of Canada decision affirmed that the provincial government can’t extinguish Wet’suwet’en rights to their land. However, the court also sent the case back from a second trial that hasn’t yet happened, leaving key questions unresolved.

Last year, the RCMP violently arrested Wet’suwet’en people and supporters in the disputed area, with the Guardian reporting earlier this year that police had been prepared to use lethal force. Earlier this month, the RCMP set up a checkpoint to control access to the area after a B.C Supreme Court judge extended an injunction to force out the Wet’suwet’en in the camps and allow construction on the pipeline to continue.

“We are not trespassing,” Ta’Kaiya Blaney, one of several Victoria, B.C., activists arrested and released after a protest supporting the Wet’suwet’en earlier this week, said in a video posted on Facebook.

Wet’suwet’en Nation territory in northeastern British Columbia is just one example of a dispute over unceded land.

“Coastal GasLink is trespassing, those cops are trespassing. They have no jurisdiction to violate Indigenous Peoples and Indigenous youth on stolen land.”

‘Duty to consult’ an imperfect solution

The Wet’suwet’en are far from the only ones asserting their title to their traditional lands.

In Nova Scotia, Mi’kmaq people have pushed for recognition of their unceded territory. In Ottawa, several Algonquin groups claim the land that Parliament Hill and the Supreme Court of Canada sit on. And in 2014, Tsilhqot’in Nation in B.C. became the first to prove title to their land in court.

In 2017, about 140 groups of Indigenous people who never signed treaties were negotiating with Canada’s federal government, the New York Times reported.

Several court cases have reaffirmed that the Canadian government has a duty to consult Indigenous people in cases that will impact their rights, which is meant to be an extra protection while land-title cases get resolved. But that protection is imperfect: duty to consult “is not necessarily going to give you the full benefit of stopping a project,” Ralston said.

In general, courts have also been reluctant to allow Indigenous land claims as a reason to block injunctions.

In a broader sense, however, there are international considerations as well. In November, B.C. passed a bill aligning its laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), a landmark document that, among other things, protects Indigenous Peoples’ right to self-government and right to consent to resource-development projects on their territories.

B.C. is the first Canadian jurisdiction to implement UNDRIP ⁠— the document was passed by the UN General Assembly in 2007 over Canada’s objections, and the country has so far been reluctant to formally implement it. It’s not clear how the document could play in future disputes.

In the case of Coastal GasLink, B.C.’s independent Human Rights Commission, Amnesty International and the UN Committee on Racial Discrimination have all criticized the provincial government, saying Coastal GasLink violates UNDRIP principles.

B.C. Premier John Horgan, meanwhile, has said the province’s law is not retroactive and Coastal GasLink will go ahead. SOURCE

RELATED:

Coastal Gaslink pipeline threatens healing centre, says Unist’ot’en Camp

Terence Corcoran: The Trudeau Liberals will have to live with being in breach of a UN declaration they should never have adopted

In other words, says the UN, Canada should stop all work on its three largest energy projects worth billions in new investment

Canada’s Prime Minister Justin Trudeau welcomes Members of Parliament to the House of Commons as parliament prepares to resume for the first time since the election in Ottawa, Ontario, Canada December 5, 2019.Patrick Doyle / Reuters

According to an ancient political proverb, governments that pander to the globalist sword fighters at the United Nations run a grave risk of getting their policy necks lopped off. And so, as prophesied, that object now rolling across the Canadian West toward Ottawa is the Trudeau government’s self-righteous 2016 decision to wrap its arms around UNDRIP — the 2007 United Nations United Declaration on the Rights of Indigenous Peoples.

With Canada now signed on to the United Nations’ feel-good indigenous agenda, UN operatives are back and claiming, as is their practice, that Canada is failing to live up to the full meaning of the declaration, which among other things requires Ottawa and the provinces receive full agreement from Indigenous peoples before proceeding with economic development.

Through a subgroup called the Committee on the Elimination of Racial Discrimination (CERD), the UN has drafted a two-page decision calling on Canada to “immediately cease” construction of the Trans Mountain pipeline expansion, to “immediately suspend” construction on the Site C dam in British Columbia and to “immediately halt” all work on the Coastal Gas Link LNG pipeline.

In other words, says the UN, Canada should stop all work on its three largest energy projects worth billions in new investment. According to the “decision”— following typical global bureaucratise — CERD said it is “concerned” about the pipeline plans, “disturbed” by forced removal and harassment of protesters and “alarmed” by what it calls escalating threats of violence against Indigenous people.

Had the Trudeau government refrained from enthusiastically adopting the UN Indigenous rights declaration in 2016, the quick answer to these insistent directives would be to tell the global agency to look to parts of the world where rights are actually being trampled on. China, for example. Or how about Venezuela? Iran, anyone?

The only option is to let the pipelines be built and to hell with the UN.

But having signed on to the declaration, Canada is an easier target, a goose with its self-righteous neck sticking out for easy political removal. When Canada adopted the declaration in May of 2016 — nine years late — the formal announcement by Indigenous Relations Minister Carolyn Bennett was greeted with a standing ovation at the UN. Canada, she said, is “now a full supporter of the declaration, without qualification.”

Well, not quite. There are a couple of clauses in the declaration that most legal scholars and clear-eyed politicians view as all but impossible to adopt within Canada’s constitutional framework.

Even former Trudeau justice minister Jody Wilson-Raybould sounded more than skeptical about the UNDRIP adoption. In a 2016 speech, she said much as she would like to cast Canada’s Indian Act into the fire of history, “simplistic approaches, such as adopting the UNDRIP as being Canadian law, are unworkable.” In another comment, she said “it is important to appreciate how come it cannot be simply incorporated, word for word, into Canadian law.”

But that is exactly what the UN wants Canada to do. In its decision calling for the shutdown and suspension of Trans Mountain and Coastal Gas Link pipelines, CERD insists that Canada constitutionally adopt a UNDRIP legal concept that requires Canadian governments to seek the “free, prior and informed consent” of Indigenous people over large-scale economic development projects that may impair their rights, culture and way of life.

Free, prior and informed consent — known in the business as FPIC — is imbedded in UNDRIP and was for a decade the major reason Canada did not sign the 2007 declaration. Canada was so strongly opposed to the idea that it was the only UN member to refuse the UN’s FPIC principles.

Even after the Trudeau government adopted UNDRIP, it continued to fudge the issue. A recent paper in the International Indigenous Policy Journal says the latest Trudeau government pronouncement on FPIC is weak. The best Ottawa can do is claim that it “recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior and informed consent.”  A policy that “aims to” do something is not a hard policy.

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Canada’s Supreme Court has ruled that governments, including provinces, have a “duty to consult” Indigenous peoples, but legal experts say FPIC takes the concept several steps beyond mere consultation to requiring full “free will” agreement.

The province of British Columbia has also embraced UNDRIP, so it will have to find a way to respond to the UN criticisms of the Site C hydro project.

The Trudeau Liberals are now in a bind of their own making. Ottawa moved to adopt UN principles that are incompatible with Canadian constitutional law, and now the UN is knocking at Canada’s door demanding action.

Alberta has firmly responded: “With all the injustice in the world,” said Minister of Energy Sonya Savage, “it’s beyond rich that the unelected, unaccountable United Nations would seemingly single out Canada — one of the greatest champions of human rights, democracy and the rule of law.”

What will Ottawa do? In his post-election mandate letter to Carolyn Bennett as minister of Indigenous relations, the prime minister instructed her to “support the minister of justice and attorney general of Canada in work to introduce co-developed legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples by the end of 2020.”

If legal scholars and Jody Wilson-Raybould are right, introducing “free and prior consent” into Canadian law is a legal impossibility, which means that the Trudeau Liberals will have to live with being in breach of a UN declaration they should never have adopted.

The only option is to let the pipelines be built and to hell with the UN.

 SOURCE

Alberta Utilities Commission Releases Interim Direction on Indigenous Consultation

The Alberta Utilities Commission (the “AUC”) recently announced that it will review its application requirements for consultation with Indigenous communities. The AUC has released an Interim Direction on Indigenous consultation for proponents to follow while this review is undertaken. “[T]o ensure that application requirements for consultation with First Nations and Métis are clear”, it is separating its review of other AUC application requirements. The commission’s goal is to have clear requirements for Indigenous consultation completed by the fall of 2020.

What the AUC Does

The AUC regulates the construction and operation of utility projects such as transmission lines, substations, power plants, hydro projects and gas utility pipelines, all of which may have the potential to impact Aboriginal and Treaty rights protected by section 35 of the Constitution Act, 1982.

The former AUC approval process did not specifically address Indigenous consultation or the assessment of impacts on Aboriginal and Treaty rights. Instead, Indigenous consultation was included in the general participant involvement program and there was no requirement to assess impacts on rights.

In 2017, the Supreme Court of Canada confirmed that the application process of a regulatory body, such as the AUC, can trigger the duty to consult in certain circumstances (Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41; Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40). The duty to consult must be fulfilled before a decision is made to approve a project that could have adverse impacts on Aboriginal or Treaty rights. If not, the approval could be overturned by the courts.

The AUC’s Review

In June 2019, the AUC announced that it was undertaking a review of its stakeholder consultation process. On December 2, 2019, through AUC Bulletin 2019-20, Interim direction on Indigenous consultation the AUC has decided to conduct additional engagement “to ensure that application requirements for consultation with First Nations and Métis are clear” before releasing their updated procedures.

The AUC has released interim requirements for Indigenous consultation for project proponents to follow while it works with Indigenous communities and industry stakeholders to create new application requirements. This interim consultation process will apply to all new applications for transmission lines, substations, power plants, hydro projects, industrial system designations and gas utility pipelines made on or after March 1, 2020.

The AUC has also launched a pilot project to create a statement of intent to participate form specific for Indigenous groups. The AUC is piloting the use of the new form and is seeking feedback on its format and its effectiveness. SOURCE

Trans Mountain pipeline saga looks set to drag into 2022

Construction may have resumed and Trudeau has promised to see TMX through, but it’s the legal delays that look set to hold everything back

With the Federal Court of Appeal set to hold its second hearing on approval of the Trans Mountain Pipeline in December, it may seem that the end is near for the long-running saga.

But the perception could well be illusory. While Prime Minister Justin Trudeau’s promise that his minority government will see the pipeline through remains fraught with political difficulties, it is the inexorable delays in the legal process that may present the greatest obstacle to the project’s fruition.

In August 2018, the Federal Court of Appeal (FCA) overturned the cabinet’s November 2016 order-in-council approving the pipeline, which was based on recommendations made by the National Energy Board (now the Canadian Energy Regulator) some six months earlier.

While the court found that Canada had acted in good faith and selected an appropriate consultation framework, the duty to consult had not been adequately discharged and “fell well short of the mark” by failing “to engage, dialogue meaningfully and grapple with the real concern of the Indigenous applicants so as to explore possible accommodation of (their) concerns.” SOURCE

A Comparative Analysis: Public Consultation for Bill 4, the Cap and Trade Cancelation Act, 2018, and the Federal Duty to Consult Aboriginal Peoples under s.35

Photo: Bruce MacLean

On October 11, 2018, the Supreme Court of Canada released its decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 [Mikisew], in which the Court held that the Federal Government does not have a duty under s.35 of the Constitution Act, 1982 to consult Aboriginal Peoples in the development of legislation. Mikisew was an application by the Applicant Indian Band to the Federal Court for judicial review of Parliament’s introduction of two omnibus Bills in 2012 that had significant effects on Canada’s environmental protection regime and had the potential to adversely affect the Mikisew’s treaty rights to hunt, trap and fish. The Mikisew had not been consulted on either of the omnibus bills at any stage in their development or prior to the granting of royal assent. The Mikisew argued that the Crown had a duty to consult it on the development of the legislation.

While the Federal Court at the first level allowed the Mikisew’s Application, the Federal Court of Appeal granted the Crown’s appeal. In granting the appeal, the Federal Court of Appeal found that the reviewing judge had erred by conducting a judicial review of what amounts to a legislative action contrary to the Federal Courts Act, RSC 1985, c F-7.

The Issues before the Supreme Court of Canada were twofold:

1. Did the Federal Court have jurisdiction under ss. 18 and 18.1 of the Federal Court’s Act to hear the Application?
2. Does the development of legislation by Ministers trigger the duty to consult Aboriginal Peoples under s.35 of the Constitution Act, 1982?

On the first issue, the SCC found that while s.17 of the Federal Courts Act gives the Federal Court concurrent original jurisdiction where relief is claimed against the Crown, this jurisdiction does not extend to the review of the exercise of legislative power by executive actors. The SCC also found that ss. 18 and 18.1 of the Federal Courts Act only grant the Federal Court jurisdiction to judicially review action taken by a “federal board, commission or other tribunal”, which is defined in s. 2(1) of the Act as a body exercising statutory powers or powers under an order made pursuant to a prerogative of the Crown.

The SCC noted that s.2(2)  of the Federal Courts Act specifies that the Senate, the House of Commons, or any committee or member of either House is not a federal board, commission or other tribunal within the meaning of s.2(1). Moreover, the SCC reasoned that Ministers do not act pursuant to statutory powers when developing legislation; rather, they act pursuant to powers under Part IV of the Constitution Act, 1867. The SCC held that Ministers, when developing legislation, do not act as a federal board, commission or other tribunal and their actions are immune from judicial review. The SCC outlined its reasons as follows:

“… the separation of powers and parliamentary privilege apply to parliamentary proceedings and to the process leading to the introduction of a bill in the House of Commons. The development, drafting and introduction of the omnibus bills are immune from judicial interference.” ¹

[Emphasis added]

According to the SCC, “the entire law-making process — from initial policy development to and including royal assent — is an exercise of legislative power which is immune from judicial interference”. ²

On the second issue, the SCC held that the duty to consult under s.35 applies only to executive, not legislative action. The SCC reasoned that the duty to consult doctrine is ill suited for legislative action, and that it is rarely appropriate for courts to scrutinize the law making process. According to the SCC, this judicial reluctance to supervise the legislative process derives from the Constitutional principle of the separation of powers, as Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority.

The SCC emphasized, however, that simply because the duty to consult doctrine is inapplicable in the legislative sphere, this does not mean the Crown is absolved of its obligation to act honorably. Despite its finding that legislation cannot be challenged on the basis of the duty to consult, the SCC left open the possibility for future case law to recognize another remedy where Aboriginal or treaty rights may be adversely affected by legislation.

Bill 4, the Cap and Trade Cancellation Act, and Public Consultation

On July 3, 2018, the Ontario Provincial government introduced O. Reg. 386/18 (“Regulation”) under the Climate Change Mitigation and Low-carbon Economy Act, SO 2016, c 7 (“CCMLE Act”). The Regulation revoked the operational elements of Ontario’s cap and trade system for reducing greenhouse gas emissions. Subsequently, on July 25, 2018, the Ontario Provincial Government introduced Bill 4, Cap and Trade Cancellation Act, 2018 (“Bill 4”) into the legislature, which, if enacted, would repeal the CCMLE Act.

On September 11, 2018, Greenpeace Canada filed an Application under s. 6(2) of the Judicial Review Procedure Act in the Superior Court of Justice challenging the Province’s introduction of O Reg 386/18 and Bill 4, arguing that the Province had failed to comply with its public consultation obligations under ss. 15 and 16 of the Environmental Bill Right Rights (“EBR”), which state:

s.15(1) “If a minister considers that a proposal under consideration in his or her ministry for a policy or Act could, if implemented, have a significant effect on the environment, and the minister considers that the public should have an opportunity to comment on the proposal before implementation, the minister shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented.”

s.16(1) “If a minister considers that a proposal under consideration in his or her ministry for a regulation under a prescribed Act could, if implemented, have a significant effect on the environment, the minister shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented”

On September 12, 2018, the day after Greenpeace initiated its Application, the Provincial Government announced that it would provide for a 30-day public consultation period regarding Bill 4. Greenpeace has declared this to be a “partial victory”, but has implied that it intends to proceed with its Application, stating that “the Ford government still must answer in court for its violations of Ontarians’ rights under the Environmental Bill of Rights”.

Mikisew’s Implications for the requirement of Public Consultation under the EBR

The Supreme Court’s decision in Mikisew raises the question of whether the Superior Court would grant a remedy for the Province’s failure to comply with the EBR in its introduction of Bill 4. The Supreme Court in Mikisew was clear that legislative action, i.e., the development of legislation, is not normally subject to judicial scrutiny.

Of course, an obvious difference between Greenpeace’s Application and Mikisew, is that Mikisew was decided in the context of the Federal Courts Act, which circumscribes the Federal Court’s jurisdiction to hear applications for judicial review. Unlike the Federal Court, the Ontario Superior Court of Justice is a court of inherent jurisdiction whose jurisdiction to judicially review governmental action is a common law right as opposed to a statutory grant of power.

Nevertheless, the common law of judicial review of administrative action dictates that the development of primary legislation does not generally attract administrative rights. ³ Recently, for instance, the Honourable Justice Belobaba in City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 [City of Toronto], reiterated this principle:

“The provincial legislature has no obligation to consult and no obligation of procedural fairness. The doctrine of legitimate expectations, an aspect of procedural fairness, does not apply to legislative enactments” ⁴

Similarly to Greenpeace in its Application, the Applicant in City of Toronto had argued that the City of Toronto Act, 2006, SO 2006, c 11, Sch A imposed on the Province a duty to consult the Applicant in the creation of Bill 5, Better Local Government Act, 2018. To this argument, Justice Belobaba replied in obiter as follows:

“A federal or provincial legislature is sovereign and cannot bind itself. The provincial legislature can over-rule or contradict a previously enacted law. A subsequent enactment that is inconsistent with an earlier enactment is deemed to impliedly repeal the earlier enactment to the extent of the inconsistency. Thus, the argument that the City of Toronto Act somehow imposed an immutable obligation to consult cannot succeed. The Province was entitled to enact Bill 5 and ignore completely the promise to consult that was set out in the previous law.”⁵

It could be argued that the EBR, like the City of Toronto Act, is merely a Provincial statute with which the Province need not comply in enacting new legislation. Moreover, the ruling in Mikisew suggests that even a Constitutional duty to consult may not bind a government in the enactment of primary legislation. Mikisew’s iteration of this principle renders it uncertain whether the Province did indeed have a legal obligation to consult the public in introducing Bill 4. By contrast, however, the promulgation of regulations under primary legislation is subject to judicial review,⁶ and it is possible that the portions of Greenpeace’s Application concerning the introduction of O Reg 386/18 could lead to a finding that the Province did indeed breach its obligations to consult under the EBR.

The 30-day public consultation period regarding Bill 4 closed on October 11, 2018 and Bill 4 is currently awaiting its third reading before the Legislative Assembly of Ontario. It remains to be seen if and how the public consultation period will affect the content of Bill 4 and whether Greenpeace’s Application will proceed. SOURCE

First Nations renew court battle to stop Trudeau and Trans Mountain

Members of Tsleil-Waututh Nation gather around, with lawyer Merle Alexander, Tsleil-Waututh Chief Leah George-Wilson and Skeetchestn Indian Band Kukpi7 Ron Ignace at centre front row in Vancouver, B.C., on July 9, 2019. Photo by Stephanie Wood

First Nations have taken their first step to bring the federal government back to court over its approval of the Trans Mountain expansion project.

Six First Nations, including Squamish Nation, Tsleil-Waututh Nation and Coldwater Indian Band, announced today they have officially petitioned the Federal Court of Appeal to review Prime Minister Justin Trudeau’s second approval of the pipeline.

Chief Leah George-Wilson of Tsleil-Waututh Nation said Canada was “not responsive” to concerns that came up during the consultation process, including those relating to the risks and costs of an oil spill, the impacts on southern resident killer whales and encroaching on Indigenous rights and title.

“Tsleil-Waututh participated in the consultation in good faith, again. But it was clear that Canada had already made up their mind as the owners of the project,” she said. “We have no choice but to appeal again, and we expect the same result: that the approval will be overturned.”

The nation will also argue that the government’s $4.5-billion purchase of the west coast pipeline system created a conflict of interest.

“Canada is biased. The federal government is in a conflict of interest as the owner, the regulator and enforcer, as well as the fiduciary for First Nations,” George-Wilson said.

Under Canada’s Constitution, federal government has a legal duty to consult First Nations on decisions that could affect their rights or way of life. But the Trudeau government failed to do this the last time it tried to approve the pipeline in November 2016.

As National Observer reported in April 2018, government insiders say senior public servants privately ordered them to find a way to approve the project before Trudeau announced his decision, despite telling Indigenous leaders the government was still consulting them. MORE

Trudeau’s paradoxical definition of Indigenous consent

The federal government’s skewed view of Indigenous consent, and its apparent conflict of interest on the pipeline, could pose a legal problem.

Photo: Indigenous drummers perform a drum circle prior to a demonstration against the approval of the Trans Mountain pipeline, in Victoria on June 22, 2019. THE CANADIAN PRESS/Dirk Meissner

he latest cabinet approval of the Trans Mountain pipeline came less than a day after the federal government declared a climate emergency. While the irony was a dream for satirists, it wasn’t the biggest contradiction of the day. Instead, it was Prime Minister Justin Trudeau’s bizarre definition of free, prior, and informed consent (FPIC) with regard to projects that will impact Indigenous land and rights: “[FPIC] is what we engaged in doing with Indigenous communities over the past number of months. It is engaging, looking with them, listening to the issues they have and responding meaningfully to the concerns they have wherever possible.”

By Trudeau’s definition, consent is: listening to issues, responding to concerns wherever possible, and then forging ahead. As Indigenous lawyer and scholar Pam Palmater pointed out, imagine if that definition of consent was applied in the context of sexual relations?

The prime minister’s comments largely went unnoticed in the mainstream media, but his government’s skewed understanding of FPIC and half-hearted attempts at consultations with Indigenous communities remain the core reason it will be unable to move the project forward. Moreover, Ottawa’s purchase of the pipeline created an inherent conflict of interest as it purported to sit down for meaningful consultations.

“Listening to the issues”

So, what exactly was the government “engaged in doing” with Indigenous communities since last August, when the Federal Court of Appeal found that “Canada did not fulfil its duty to consult” on the pipeline and quashed the National Energy Board’s approval of it?

Many of the First Nations that had appealed to the court expressed their dissatisfaction with the renewed Stage III consultation process that the court had mandated.

The Squamish First Nation said it had been assured there were no time limits for the consultations, only to discover that cabinet did have an end date in mind. Khelsilem, a Squamish Nation spokesperson, told a news conference that they had been sent documents for feedback after May 22, the federal government’s self-imposed deadline for comments.

“What we experienced was a shallow attempt at consultation that resulted in a failure to address our concerns,” said Khelsilem. “The failure to meaningfully engage with rights holders means this government is either not serious about building this pipeline or not serious about respecting Indigenous rights.”

Chief Lee Spahan of Coldwater Indian Band said, “The meaningful dialogue that was supposed to happen never happened.” A study of the community’s aquifer had not yet occurred, and an existing pipeline spill has yet to be remediated.

Chief Leah George-Wilson of the Tsleil-Waututh Nation said that consultation once again fell well below the mark set by the Supreme Court of Canada in a number of key decisions, including Tsilhqot’in. This constitutional obligation of the Crown’s was re-emphasized in the Federal Court of Appeal ruling. George-Wilson also noted that the federal government was in a conflict of interest – that its multiple hats as proponent, decision-maker, enforcer of laws and fiduciary to First Nations and all Canadians made it impossible to make an open-minded, unbiased decision.

he latest cabinet approval of the Trans Mountain pipeline came less than a day after the federal government declared a climate emergency. While the irony was a dream for satirists, it wasn’t the biggest contradiction of the day. Instead, it was Prime Minister Justin Trudeau’s bizarre definition of free, prior, and informed consent (FPIC) with regard to projects that will impact Indigenous land and rights: “[FPIC] is what we engaged in doing with Indigenous communities over the past number of months. It is engaging, looking with them, listening to the issues they have and responding meaningfully to the concerns they have wherever possible.”

By Trudeau’s definition, consent is: listening to issues, responding to concerns wherever possible, and then forging ahead. As Indigenous lawyer and scholar Pam Palmater pointed out, imagine if that definition of consent was applied in the context of sexual relations?

The prime minister’s comments largely went unnoticed in the mainstream media, but his government’s skewed understanding of FPIC and half-hearted attempts at consultations with Indigenous communities remain the core reason it will be unable to move the project forward. Moreover, Ottawa’s purchase of the pipeline created an inherent conflict of interest as it purported to sit down for meaningful consultations.

“Listening to the issues”

So, what exactly was the government “engaged in doing” with Indigenous communities since last August, when the Federal Court of Appeal found that “Canada did not fulfil its duty to consult” on the pipeline and quashed the National Energy Board’s approval of it?

Many of the First Nations that had appealed to the court expressed their dissatisfaction with the renewed Stage III consultation process that the court had mandated.

The Squamish First Nation said it had been assured there were no time limits for the consultations, only to discover that cabinet did have an end date in mind. Khelsilem, a Squamish Nation spokesperson, told a news conference that they had been sent documents for feedback after May 22, the federal government’s self-imposed deadline for comments.

“What we experienced was a shallow attempt at consultation that resulted in a failure to address our concerns,” said Khelsilem. “The failure to meaningfully engage with rights holders means this government is either not serious about building this pipeline or not serious about respecting Indigenous rights.”

Chief Lee Spahan of Coldwater Indian Band said, “The meaningful dialogue that was supposed to happen never happened.” A study of the community’s aquifer had not yet occurred, and an existing pipeline spill has yet to be remediated.

Chief Leah George-Wilson of the Tsleil-Waututh Nation said that consultation once again fell well below the mark set by the Supreme Court of Canada in a number of key decisions, including Tsilhqot’in. This constitutional obligation of the Crown’s was re-emphasized in the Federal Court of Appeal ruling. George-Wilson also noted that the federal government was in a conflict of interest – that its multiple hats as proponent, decision-maker, enforcer of laws and fiduciary to First Nations and all Canadians made it impossible to make an open-minded, unbiased decision.

These issues of bias and conflict of interest could play a role in the forthcoming legal challenges. From an administrative law standpoint, a reasonable apprehension of bias or the actual bias of the decision-makers raise questions of procedural fairness in the approval of the pipeline expansion. Trying to sell the $4.5 billion-pipeline to the private sector without an approval for its expansion would result in significant financial loss for the federal government. In other words, the approval of the pipeline results in a direct financial benefit for the people who made the decision. MORE

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