Monday, September 17, 2018

It's up to Indigenous, environmental groups to protect the public interest

(Photo by Ken Balcomb, Center for Whale Research, pic from Washington Post)

This article is Part 2 of a 2-part series which was originally published in The Lawyer's Daily on September 17, 2018. The link to Part 1 which was published Sept.11, 2018 is provided below.

Despite objections from some of the Indigenous groups about the consultation process, the Federal Court of Appeal (in Tsleil-Waututh Nation et al. v. Canada (Attorney General) 2018 FCA 153) held that Canada acted in good faith and that the consultation framework it used was appropriate.

This was a four-phase process which was to include (1) early engagement, (2) NEB hearing, (3) governor-in-council consideration and (4) regulatory authorization processes.

Where Canada fell down was in Phase III of the consultation process in that it did not meaningfully consider the concerns of the Indigenous groups or attempt to accommodate or mitigate those concerns. There was no substantive discussion about Indigenous rights and the FCA found that federal officials did little more than act as “note-takers”. The court agreed with the Indigenous groups that Canada’s notes, referred to as the Consultation Chronologies, “should be approached with caution” for failing to accurately present the facts.

When pressed by Indigenous groups for a response, federal officials merely repeated the line that they would deliver their concerns to the decision makers. When it finally did come time for a response, Canada informed the groups that it was bound by the recommendations of the NEB and that it was in effect, powerless to add any more conditions on the project. A surprising response given the fact that the FCA had already decided in the Gitxaala Nation case (Gitxaala Nation v. Canada 2016 FCA 187) that under the current legislative scheme, the only decision maker was in fact the governor-in-council and not the NEB.

The Department of Justice is the largest law firm in Canada, working exclusively on behalf of the federal government — it had no excuse for its “erroneous position.” The FCA held that the duty to consult is not met by the mere exchange or discussing of information. Consultation has to focus on constitutionally protected rights and in so doing Canada is obligated to “substantially address the concerns of the First Nation” (from Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69. This coupled with the fact of Canada’s late disclosures, lack of responses, failure to provide more time and “closed-mindedness” frustrated the consultation process. It is Canada’s actions or lack thereof which is why the Federal Court of Appeal overturned its decision.

So, what now? Well, this is far from over. The FCA has ordered that the decision is quashed and the approval must go back to the governor-in-council for reconsideration. As part of that reconsideration, the GIC must refer the NEB’s recommendations back to the NEB. Canada must also redo its Phase III consultations and accommodations before the GIC can reconsider the approval for the pipeline expansion.

Of great concern is Prime Minister Justin Trudeau’s comments that Canada is considering the possibility of an appeal of this decision or legislation to force the pipeline project through.

Whether Canada chooses to abide by the decision or not, what we know for sure is that Canada will forge ahead with the pipeline despite the fact that the impact of a tanker spill on the southern resident killer whales would be “catastrophic” and “there were no direct mitigation measures that Trans Mountain could apply to reduce or eliminate potential adverse effects from Project-related tankers”. Perhaps Tahlequah (the female southern resident killer whale who recently carried her deceased calf for 17 days) was mourning for all us.

However, there is a new complication to Canada’s pipeline plans. Six conservation groups, including the Raincoast Conservation Foundation, Ecojustice, David Suzuki Foundation, Georgia Strait Alliance, Natural Resources Defence Council and the World Wildlife Fund have filed a lawsuit in Federal Court seeking an emergency order to protect the southern resident killer whales.

Indigenous peoples will also have to decide how to proceed to protect their lands, waters and the other life within their territories which depends on a healthy eco-system — including killer whales.

What we know for sure is that we cannot count on either federal or provincial governments to put the health of peoples, lands, waters, plants or animals ahead of the money to be made from the extractive industry. As the FCA held, the public interest and the duty to consult with Indigenous peoples are not in conflict. To the contrary, the violation of the “constitutionally protected rights of Indigenous peoples cannot serve the public interest”.

Looks like it is up to Indigenous peoples and environmental allies to protect the public interest and our collective futures — including Tahlequah’s and the future of her pod.

This article is Part 2 of a 2-part series that was originally published in The Lawyer's Daily on September 17, 2018.

The link to Part 1 which was published Sept.11, 2018 is at this link:

My Youtube video on this issue provides more detailed information about the case.

Tuesday, September 11, 2018

Killer Whales, Trans Mountain Pipeline and the Public Interest

                  (photo by NOAA from Raincoast Conservation Foundation)

This article is Part 1 of a 2 part series which was originally published in The Lawyer's Daily on September 11, 2018. Part 2 will be published in a few days.

Tahlequah’s “tour of grief” which saw one of the female southern resident killer whales (referred to by scientists as J-35) carry her deceased calf for 17 days was an unprecedented show of grief for the death of her calf. It is also a sad reminder of the fact that these endangered whales have had no successful births for three years. Her visible mourning tore at the heartstrings of many Americans, Canadians and especially Indigenous peoples who know all too well the pain of losing their children. While it is not uncommon for a killer whale to hold her deceased calf for a few hours or a day, this show of extended grief was the first time observed by scientists.

Some wonder whether Tahlequah’s actions were not a call for help given that there are only 75 whales left and the proposed increase in tanker traffic from the Trans Mountain pipeline threatens to wipe them out for good. Indigenous Nations in Canada and several conservation groups filed applications against Canada’s decision to approve the pipeline in the hopes of saving these whales and all life in the surrounding eco-system.

On Aug. 30, 2018, Justice Eleanor Dawson delivered the decision of the Federal Court of Appeal (FCA) quashing Canada’s approval of the Trans Mountain Pipeline expansion (Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153). From the moment the decision was released, there was more shock and awe to go around than had the court pronounced that the earth was flat. While the controversy generated from that decision has been quite dramatic, the decision is far less apocalyptic than most might think.

Ultimately, this decision to quash the approval of the Trans Mountain expansion reflected principles espoused by the Supreme Court of Canada (SCC) for the last two decades. No new law was created — it was a case which reflected the current legal status quo.

This case — unlike the raging fires in British Columbia or the melting of the ice in the Arctic — is rather non-calamitous; unless of course you consider the fate of the southern resident killer whale or the health of the Indigenous lands and waters upon which this pipeline will wreak havoc. That is because despite the fact that the Federal Court of Appeal quashed the decision in this instance, it also set up the conditions for which the federal government can approve the pipeline in the future. So, while Prime Minister Trudeau moans about how “hurt” he is by the decision, and while the extractive industry goes into full panic mode, the only ones who need to be worried here are the Indigenous peoples and their conservation allies who will now face the full wrath of the oil industry and its federal and provincial cheerleaders.

Here’s how it all started: On Dec. 16, 2013 (under the Harper government) Trans Mountain submitted an application to the National Energy Board (NEB) for a certificate to allow the expansion project to proceed. After several years of review, on May 19, 2016, the NEB recommended to the governor-in-council that the pipeline expansion be approved. Six months later, on Nov. 29, 2016, the governor-in-council (cabinet) (under the Trudeau government) accepted the NEB’s recommendation and issued an order-in-council to that effect. The appeals of this decision were heard at the FCA in October of 2017 and the court issued its decision almost a year later in August 2018.

This case involves individual applications by five First Nation collectives, two of B.C.’s largest cities, and two conservation groups asking the Federal Court of Appeal to overturn Canada’s decision to approve the pipeline expansion. The respondents in the case were the Attorney General of Canada, the NEB and the Trans Mountain Pipeline company. The FCA consolidated the applications into one to be heard together.

While the applicants made various arguments challenging different aspects of the decision-making process, the FCA determined that the only “decision” that was under review was the decision of the governor-in-council to approve the expansion. That decision was challenged on two primary grounds (1) the NEB’s process and resulting report were flawed and (2) Canada did not fulfil its duty to consult with Indigenous peoples.

The primary reason why the FCA found that the NEB’s process was flawed was because it “unjustifiably defined the scope of the Project under review not to include Project-related tanker traffic”. Specifically, the NEB excluded the impact of increased marine traffic on the B.C. coast on the southern resident killer whales, which are an endangered species, was not properly considered within its assessment of the impacts of the project. This is despite the fact that they had already acknowledged that the increase in large tanker traffic “would contribute to the total cumulative effects on the Southern resident killer whales, and would further impede the recovery of that species” and that “Southern resident killer whales are an endangered species”.

They further acknowledged that: “... the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, and that it is likely to result in significant adverse effects on Aboriginal cultural uses associated with these marine mammals”.

The FCA noted that Project-related tankers carry the risk of significant, if not catastrophic, adverse environmental and socio-economic effects should a spill occur”. Ultimately, the governor-in-council could not rely on such a deficient report in order to make its decision.

The other ground challenging the validity of the decision was the finding that Canada did not fulfil its duty to consult and accommodate Indigenous peoples’ legitimate concerns about the impact of the pipeline on their territories and their constitutionally protected Aboriginal rights and title.

Specifically, the Tsleil-Waututh Nation asserted Aboriginal title to the land, water, air and marine resources. The Squamish Nation asserted Aboriginal title, Aboriginal rights, the right to be self-governing and the right to fish. The Coldwater Band asserted Aboriginal rights and title, as did the Sto:lo Collective, Upper Nicola Band and Stk’emlupsemc te Secwepemc — all within their respective territories. They had all engaged in Canada’s consultation processes despite the limited funding to participate, the brief timelines and the consistent failure of federal officials to respond to their concerns.

In the end, the facts clearly show it was the First Nations groups who were acting in good faith, despite Canada’s less than honorable actions.

This is the first of a two-part series.

This article is Part 1 of a 2 part series which was originally published in The Lawyer's Daily on September 11, 2018. Part 2 will be published in a few days. The original link for Part 1 can be found here: 

You can also watch the CBC panel where we discussed the implications of this case:

Here is the link to my Youtube video breaking down the decision: