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

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

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

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

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

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

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

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

• Trans Mountain pipeline opponents to ramp up protests

5 groups were originally among 12

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

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

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

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

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

 

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

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

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

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

 

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

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

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

• Cost of Trans Mountain expansion soars to $12.6B

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

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

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

• As cost rises, support falls for Trans Mountain pipeline expansion, survey finds

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

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

Grand Chief Stewart Phillip & Peter McCartney: Canada must stop violating Indigenous human rights for megaprojects

The RCMP are obliged to enforce a civil injunction obtained by Coastal GasLink pipeline against Freda Huson (right) and other Wet’suwet’en members.

By Grand Chief Stewart Phillip and Peter McCartney

There’s no way around it—Indigenous peoples are the proper title and rights holders over their territories, and their human rights cannot be trampled just because a megaproject floats the dream of big money to investors.

The UN Committee on the Elimination of Racial Discrimination recently called on Canada to immediately stop construction on three major industrial projects until affected Indigenous Nations have given their consent. The Coastal GasLink pipeline, Trans Mountain pipeline expansion, and the Site C dam have all been met with consistent opposition from many of the nations whose territories they would cross and infringe upon. Community members have been violently removed from their lands for asserting their title and rights and exercising their inherent right to control and develop their lands, territories and resources.

As we write this, the RCMP is preparing to descend upon Wet’suwet’en territory to clear the path of the Coastal GasLink pipeline, as the company recently won a court injunction that the RCMP is obliged to enforce. Meanwhile, land defenders who oppose the federally owned Trans Mountain pipeline have faced harassment, surveillance, intimidation, and violent arrest.

These events highlight the concerns of the UN for the rights and safety of Indigenous Peoples in Canada. Police violence and human rights violations are only likely to escalate unless political leaders step in. Their courage or cowardice will define whether reconciliation becomes yet another hollow promise to Indigenous Peoples or a chance to build this country upon principles of equality and respect—the way it should have been from the beginning.

We’ve visited the Tiny House Warriors, the Rocky Mountain Fort, and the Unist’ot’en healing lodge in the path of these megaprojects. Friends have told us how they’ve been turned away from local businesses, constantly harassed and surveilled by police, and even injured in violent arrests. It does not and should not have to be like this.

We can have an economy that reflects our values. There’s a right way to provide jobs and prosperity, but it requires patience, humility and prioritizing the relationships that we are trying to build. Indigenous Peoples have laws and governments that have been in place on these territories long before Canada’s. Respecting their right to make decisions about those lands means accepting our shared future in this place is more important than any one resource project.

For generations, Canada has proudly supported human rights on the international stage at the United Nations forums while consistently failing to apply the same moral compass here at home. If we are going to live up to our ideals rather than repeat the mistakes of the past, and if British Columbia is to advance its commitment to the Declaration on the Rights of Indigenous Peoples Act, we must heed the call and stop Trans Mountain, Coastal GasLink and Site C. Only once we stop straining the fragile bonds between us can we move forward in partnership. SOURCE

Leaked audit suggests B.C. environment rules for energy industry being ignored

The report about caribou protection was sent anonymously to the Canadian Centre for Policy Alternatives. The audit, conducted in 2014, looked at whether oil and gas companies near Fort Nelson were following provincials rules put in place to protect declining caribou herds. (Brennan Linsley/The Associated Press)

VICTORIA — A leaked audit of oil and gas practices in northeastern British Columbia suggests rules to reduce the impact of industry on caribou habitat are being routinely ignored.

“The audit identified a number of issues with the (interim operating procedures) and a trend of non-compliance with the measures contained within it,” says the 2014 audit conducted for the B.C. Oil and Gas Commission.

The audit was never released and only came to light after it was leaked to Ben Parfitt, an energy researcher with the left-leaning Canadian Centre for Policy Alternatives think tank.

The information’s release comes as the province continues its fight against the proposed Trans Mountain pipeline expansion from Alberta on environmental grounds.

“I think there’s a great deal of inconsistency here,” Parfitt said Monday. “There is real ongoing ecological damage being done in the northeast, and the province, so far, has failed to do anything about that.”

The audit examined dozens of wells, pipelines, roads and seismic lines in the Montney area around Fort Nelson. It used aerial surveys and on-site visits to find out how closely energy companies were following guidelines developed by the province and the Canadian Association of Petroleum Producers for development on caribou habitat.

The guidelines are part of the province’s caribou recovery plan for what is considered a species of special concern. They govern the size of well pads, width of roads, seismic lines, sight lines for predators and treatment of shores and banks.

A commission spokesman said the audit wasn’t released because it was undertaken before some of the new rules were brought in. Phil Rygg said it also didn’t distinguish between the size of multi-well pads and single-well pads, although the document clearly addresses that issue.

“The commission continues to actively work to protect B.C.’s boreal caribou habitat using evidence-based practices that support wildlife protection while meeting the province’s energy plan goals,” said Rygg.

Almost $8 million has been invested in caribou research over the last four years, he added.

The audit said it was limited by its short time span and weather conditions. Performance also varied in different areas and between different companies, it noted.

But, overall, the audit found none of the pipelines or roads and 38 per cent of well sites followed guidelines.

Well pads routinely exceeded the two-hectare limit. Although the auditors were told those pads were for multiple wells, few had more than two wells and those were often suspended.

Pits were often dug immediately adjacent to the pads, making them as large as seven hectares. The auditors found little evidence of interim remediation at the sites.

While seismic lines were conforming to the rules, roads and pipelines were built side by side, which created long, straight lines through the forest up to 80 metres wide. Developments ran right up to water bodies with no buffer zones.

The audit also found the rules had no way of measuring or limiting development’s cumulative effects.

“Not only was compliance low in general, but often these measures were not prescriptive enough, allowing companies to avoid them or seek exemptions from them,” the audit said. “Long-term cumulative effects are not addressed and cannot be addressed as the current (regulation) is laid out.”

Parfitt pointed out the audit isn’t the first document to raise questions about B.C.’s environmental sincerity.

He said his research has found 92 unlicensed dams operating in the area to store water for fracking. Some are as tall as seven storeys. In another case, a report on how drilling and fracking for natural gas was contaminating groundwater near well sites was posted on the commission’s website the day after a reporter with a leaked copy started asking about it.

“This is the third instance where information has come to light where it appears rules were being broken and not much was being done about it,” Parfitt said.

“We have a government here that is making an awful lot of noise about the environmental impact of a proposed pipeline. Meanwhile, ongoing significant ecological damage is occurring and we have a government that is encouraging even more of that activity.” SOURCE

Trudeau extends olive branch to Western Canada, vows to build Trans Mountain despite opposition

Prime Minister Justin Trudeau makes his way to a press conference at the National Press Theatre in Ottawa on Wednesday. (Sean Kilpatrick/Canadian Press)

Two days after much of Western Canada rejected the Liberals on election day, Prime Minister Justin Trudeau today vowed to be more sensitive to the needs of Alberta and Saskatchewan and to build the Trans Mountain expansion pipeline in the face of entrenched opposition from environmentalists.

Trudeau told a press conference in Ottawa this afternoon he clearly has to do more to earn the trust of people in the two resource-rich provinces. He said that work will start with ensuring more pipeline capacity is brought online so that oil producers can sell their product abroad at prices closer to the going world rate.

While Trudeau campaigned on a promise of more aggressive action to fight climate change, he said nothing has changed with respect to the government-owned Trans Mountain project and insisted it will be built after years of legal wrangling.

‘In the interest of Canada’

“We made a decision to move forward on the pipeline because it was in the interest of Canada to do so, because the environment and the economy need to go together. We will be continuing with the Trans Mountain pipeline expansion,” he said.

“Albertans and people in Saskatchewan have faced very difficult years over these past few years because of the global commodity prices, because of the challenges they are facing. For a long time they weren’t able to get their resources to markets other than the U.S. We are moving forward to solve those challenges.”

Lengths of pipe for the Trans Mountain expansion project are stacked at Edson, Alta. (Jason Franson/The Canadian Press)

If built, the 1,150-kilometre expansion project would nearly triple the existing pipeline’s capacity to 890,000 barrels a day. It would transport product directly from Alberta’s oilpatch to coastal B.C. for shipping to markets in Asia.

Trudeau has promised any profits from the existing pipeline — pegged at some $500 million a year in corporate tax revenue alone — and the planned expansion will be used to fund green-friendly initiatives to help tackle climate change.

The federal Liberal government has twice approved the $7.4-billion Trans Mountain expansion. Ottawa bought the project from its original U.S. proponent, Kinder Morgan, in 2018 after that company threatened to end all essential spending on the project in response to outspoken opposition from B.C.’s provincial NDP government.

Even after a stunning court decision in August 2018 quashed the Liberal cabinet’s initial approvals, Trudeau promised to build the project “the right way.” After another consultation process with Indigenous peoples and an improved environmental review, cabinet again approved the project in June 2019. The Federal Court of Appeal is currently reviewing an appeal by Indigenous groups of that second approval.

Trans Mountain’s fate not up to MPs

While Trudeau might have to rely in this minority Parliament on vote support from the NDP and Green caucuses — two entities that have expressed strident opposition to Trans Mountain — the project’s future does not depend on any one vote in the House of Commons.

In Canada, major natural resources projects like pipelines go through a regulatory review process led by the Canadian Energy Regulator (or, as it was known until recently, the National Energy Board) . It falls to cabinet, and cabinet alone, to give the project a final “yea” or “nay.” And while those decisions are subject to judicial review, it’s not up to individual parliamentarians to decide whether a particular project is approved.

Power & Politics

✔@PnPCBC

Asked why Liberals were wiped out in Alta. and Sask, @JustinTrudeau said: “Why did this happen is not the central issue we have. The central issue for me is how do we move forward in a way that responds to the concerns that Albertans and Saskatchewanians have clearly expressed.”

2:26 PM – Oct 23, 2019

Trudeau said he has spoken recently with Western leaders like Calgary Mayor Naheed Nenshi about how the federal government can support a region that has struggled with slumping commodity prices and constrained export capacity.

“I will be reaching out specifically to westerners to hear from them … to talk about how we can make sure that the concerns, the very real concerns of Albertans, are being addressed and reflected by this government,” Trudeau said.

“This is something that I take very seriously, as a responsibility, to ensure that we are moving forward in ways that benefit all Canadians. I will be listening and working with a broad range of people to ensure that happens.” MORE

Trans Mountain pipeline expansion faces new setback as Indigenous opponents score ‘huge win’ in court

VANCOUVER—In the latest setback for the Trans Mountain expansion, the Federal Court of Appeal has approved six new Indigenous legal challenges to the project, once again raising questions about the fate of the pipeline.

The Crown corporation that now owns Trans Mountain said planning and construction will move forward in the meantime, but lawyer and resource development strategist Bill Gallagher said he wouldn’t expect to see “any shovels in the ground any time soon.”

“This to me is looking like dead pipeline walking,” Gallagher said, calling the court’s decision a “huge win for First Nations.”

The decision also ensures the Liberal government will be saddled with the legal uncertainty around the project — which it spent $4.5 billion to purchase, alongside the existing pipeline — through this October’s federal election.

While the court gave the go-ahead Wednesday to half a dozen First Nations to continue their legal efforts to halt the project, it limited the challenges to the issue of the federal government’s consultation with Indigenous Peoples, particularly its latest round.

The court denied six other applications — from two other First Nations, a coalition of youth climate activists, the City of Vancouver and two environmental organizations — leave to proceed.

A lawyer representing the two environmental organizations said they may appeal the decision to Canada’s highest court. MORE

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First Nations prepared for ‘long road ahead’ appealing Trans Mountain pipeline decision

CANADA’S APPROACH TO TRANS MOUNTAIN VIOLATES INTERNATIONAL LAW, WASHINGTON STATE’S LUMMI NATION ASSERTS

Logga Wiggler/Pixabay

Canada is violating the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and sidestepping international environmental law in its handling of the Trans Mountain pipeline expansion and a proposed three-berth marine container terminal south of Vancouver, contends the Lummi Nation in northwest Washington state, in a letter this week to Foreign Affairs Minister Chrystia Freeland.

“We’re in a state of emergency,” Lummi Nation Secretary Lawrence Solomon said in the release. “Our qwe’lhol’mechen (orca relations) are dying, our salmon are disappearing, our people are suffering. Our schelangen (way of life) is in peril. We have a Xa xalh Xechnging (sacred obligation) to care for our culture and all our relations.”

“As our ancestors keep telling us, there is hope for the Salish Sea, there is hope for us. But we have to do the work,” added Raynell Morris, director of the Lummi sovereignty and treaty protection office. “Part of the work is our nation talking directly to the United States and to Canada about what we all need to do to save and protect these shared waters.”

The Lummi are “requesting a meeting with Canadian officials regarding the environmental impacts of industrial projects on the Salish Sea off the coasts of Washington and British Columbia,” The Canadian Press reports, maintaining that projects like Trans Mountain “will result in unavoidable, irreversible, and unacceptable harm to the nation’s territorial waters.”

The letter “points to the effect of increased shipping traffic on fishing areas, as well as the dangers of ship strikes, noise pollution, and oil spills for endangered southern resident killer whales,” CP adds. “The letter says so far, Canada has dismissed the Lummi Nation’s concerns with respect to Trans Mountain,” and shows no apparent change of approach with the container terminal plan.

CP notes that Canada officially adopted UNDRIP in 2016, but Conservative senators defeated a bid to harmonize Canadian laws with the principles in the declaration. SOURCE

More than half of Quebecers don’t want Trans Mountain pipeline expanded: poll

A new poll published on July 26 by Forum Research reveals that 51 per cent of Quebecers oppose the expansion of the Trans Mountain pipeline, including 35 per cent who said they strongly oppose it.

Of the Quebecers surveyed, the results showed 36 per cent said they somewhat or strongly support the expansion of the pipeline.

Forum Research polled 977 Quebecers between July 22 and 24 over the phone about the Trans Mountain pipeline expansion.

The expansion project would twin the existing 1,150-kilometre pipeline between Edmonton and Burnaby. Capacity would almost triple from 300,000 to 890,000 barrels per day with the new pipeline.

Demographic markers such as age, gender and political leanings were factored in.

“Men are pretty evenly split on this, 45 per cent in favour and 47 per cent opposed, but among women it skews heavily toward opposed,” said Lorne Bozinoff, president of Forum Research. Only 26 per cent of women polled were in favour of the expansion.

“Those numbers do range significantly by demographic group, so for example, opposition to the pipeline is higher among younger people,” Bozinoff said.

Overall, 54 per cent of Quebecers between 18 and 34 years of age and 59 per cent of those between 35 and 44 were opposed to the project, compared with 42 per cent of those 65 and older who opposed the project. Bozinoff said the results showed the opinion about the expansion was more divided in those over 55.

“I think there is more concern for the environment among younger people,” Bozinoff said.

The poll shows respondents identify the environment as a more important issue than the economy, which is unusual, according to Bozinoff. “Instead of an order that would be, typically, the economy, health care and environment, here we have, in fact, environment at No. 1, then the economy and then health care.” MORE

The Canadian state seems like an immovable object. But Indigenous women are an unstoppable force.

Tiny House Warriors install solar panels. Photo via Tiny House Warriors’ Facebook page.

It’s Monday in the colonial state; Canada enters its 152nd year.

It’s been barely two weeks since the federal government released Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls.The chief commissioner has said that the homicides, disappearances, and violence experienced by Indigenous women, girls, and 2SLGBTQQIA people are the result of a “persistent and deliberate pattern of systemic racial and gendered human and Indigenous-rights violations and abuses, perpetuated historically and maintained today by the Canadian state, designed to displace Indigenous people from their lands, social structures and governments, and to eradicate their existence as nations, communities, families and individuals.” She named it Canada’s genocide. And yet, amid an admission of genocide, the colonial project continues apace; its existence met with celebration for another year.

Survivors of violence and family members of missing and murdered Indigenous women have put together a deeply researched report with a tangible set of actions. Activists, media, and communities must now insist upon the implementation of the report’s 231 Calls for Justice – supporting survivors, family members, and Indigenous peoples in overcoming the disinterest and dismissal of the Canadian public.

And yet, amid an admission of genocide, the colonial project continues apace; its existence met with celebration for another year.

I have come to realize that ignorance and apathy amongst Canadians should be expected, but not tolerated. Settler colonialism relies on indifference, reinforced by myths that protect the settler state from critical examination. When critical examination is undertaken, like in Reclaiming Power and Place, the true nature of the state is revealed. Canada is a project with the deliberate aim of destroying Indigenous nations in order to assert control over Indigenous lands, waters, and peoples. Poor health outcomes, criminalization, and violence that exist in Indigenous communities are not the symptoms of peoples who have failed to modernize, nor can they be dismissed as the inevitable consequence of competing ways of life.

With this in mind, it becomes clearer why settler governments are willing to include Indigenous women in decision-making in some areas, but not others.

Federal, provincial, and territorial governments have been willing to cede control – financial responsibility and liability – over the design and delivery of services through legislation that does not include a statutory requirement for funding. These services, which include language restoration and child welfare, are crucial components to ending violence against Indigenous women, girls, and 2SLGBTQQIA people. They address multi-generational issues that vary from family to family based on those families’ particular experiences and interactions with structural racism and settler colonialism. Overcoming these issues requires a multi-year effort, if not a lifelong commitment. These programs are costly to administer and critically important to the survival of Indigenous peoples. As a result, communities who assert their jurisdiction in these areas take on massive amounts of liability and financial burden, alleviating the Crown of that responsibility.

What you are not likely to see is policy-making that cedes decision-making and financial control to Indigenous women in areas where it would impact the accumulation of capital from Indigenous lands – like in the decision to twin the Trans Mountain pipeline. (I know you’re thinking about the few chiefs – mostly men – who, without clear community support, suggest their communities may want to share ownership and profit of the project. To that, I say: I said what I said.)

This includes the right to survival, to say no, and to determine for ourselves and our communities the best way to protect waters, lands, and children.

But having Indigenous women at the table is not enough. We have seen how damaging it can be when colonial oppression is internalized and perpetuated, through lateral violence and toxicity,by Indigenous women themselves. Each of us, including Indigenous people, must critically examine our own role in upholding a status quo that tolerates indifference to the basic human dignity of Indigenous women, girls, and 2SLGBTQQIA people. We must question what makes our society unwilling to hear the needs and aspirations of Indigenous women, unwilling to do the critical work required to empower us, and what barriers exist to our political mobilization.

Indigenous women have collective and individual rights that include “the right to participate in decision-making in matters which would affect their rights.” These rights are inherent, affirmed by human rights conventions and declarations like Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples. This includes the right to survival, to say no, and to determine for ourselves and our communities the best way to protect waters, lands, and children. When it comes to the Trans Mountain pipeline expansion, Kanahus Manuel, a leader with the Tiny House Warriorsand member of the Secwepemc Women Warriors has said, “We’re reclaiming our ancestral village and bringing our traditions back to life. If Trudeau wants to build this pipeline, he will need to empty this village a second time; in doing so, he would make continued colonization and cultural genocide part of his legacy of so-called reconciliation. Trudeau may have agreed to purchase this pipeline to make sure it gets built, but we’re here to make sure that it doesn’t. This pipeline is unfundable and unbuildable. It’s time Trudeau and all potential financial backers of this pipeline realized that we will never allow it to destroy our home.”  MORE

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‘The world should have stopped’: An Indigenous woman responds to Canada’s admission of genocide