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DOLPHIN: Court hears opening arguments in endless TMX appeal

There is some hope that these judges might put an end to the seemingly interminable opposition of an increasingly smaller group of Indigenous activists.

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The seemingly endless legal exertions of several British Columbian Indian bands to block the Trans Mountain pipeline expansion (TMX) resumed before a panel of three Federal Court of Appeal judges in Vancouver this week. 

In what has become the norm for Indigenous and environmental groups opposed to oil pipelines from Alberta to the west coast—pace the Northern Gateway fiasco—a dozen groups appealed the federal government’s June 18 “re-approval” of the TMX, which it bought from Kinder Morgan in July of 2017, on the familiar grounds of “insufficient consultation.”

But in a September decision that suggested the court may be growing a little impatient with these plaints, Appeal Court Justice David Stratas rejected six of the 12 appellants, including the City of Vancouver. He gave the remaining half dozen groups—all First Nations— seven days to file their paper work. Construction of the TMX, which began in August, was allowed to continue.

Stratas limited the scope of the challenge to matters relating only to the feds’ consultation process, and not to various other issues that two of the bands – the Tseil Waututh and the Squamish nations—wanted heard, but which Stratas ruled had already been dealt with by the court. These included the bands’ claims that the National Energy Board’s environmental assessment process had been flawed. 

Those two bands, both of whom are subsidized with money originating from the anti-oilsands Tides Foundation, remain among the appeal court appellants. But at the same time they have filed an application to have Stratas’ limitation appealed in the Supreme Court of Canada, which will decide in mid-January whether to hear the case.

Since September two other of the six First Nations—the Upper Nicola Band, south of Kamloops, and the Kamloops Indian Band (aka Stk’emlupsemc te Secwepem) have dropped out of the Court of Appeal case, having reached accommodations with Trans Mountain, leaving four to challenge the Governor in Council’s (i.e. the federal cabinet’s) re-approval of the TMX. 

Represented by a platoon of gowned, taxpayer supported lawyers at this week’s three-day hearing, the four groups are:

• The Tsleil Waututh Nation (pronounced “slay-wah-tooth” and abbreviated as TWN), the Metro Vancouver band enriched by its real estate developments on urban reserve land across Burrard Inlet from the Trans Mountain terminal. It claims an insufficiency of consultation on the likelihood of a tanker spill and the effects of a spill and increased traffic on killer whales with whom the band claims a “sacred relationship.”

• The Squamish Nation, another real-estate enriched coastal band whose claimed cetacean-centric concerns are similar to those of the Tsleil Waututh.  

• The Coldwater Indian Band from near Merritt, which claims the second-round consultations, ordered by the court of appeal in its quashing of the TMX project in August 2017, failed to consider its argument for a re-routing of the pipeline to avoid crossing creeks feeding the aquifer that supplies the 300-member community with drinking water. 

• The “Stó:lō Collective,” a coalition of 11 small tribes stretching about 200 kilometres along the lower Fraser River watershed from Burrard Inlet to the Coquihalla Highway. Stó:lō claims the government failed to properly consult it on the 89 recommendations in its “Integrated Cultural Assessment for the Proposed Trans Mountain Expansion Project” that sought to mitigate the project’s impact on its fishing rights and “cultural integrity.”

On Monday, the judicial panel, consisting of three, male, septuagenarians headed by Chief Justice Marc Noel (a Harper government appointee), listened to lawyers from three of the groups (Squamish was yet to come). The general thrust of their submissions was similar: the federal government had, as in the first go-round, failed to “meaningfully” engage the bands, had rushed through the process, behaved as if the pipeline approval was a foregone conclusion, and the “Phase 3” consultations were treated as a chore to be got out of the way ASAP. (The phase three consultations followed on the on the consultations that preceded the initial cabinet approval in 2016 then those that preceded last June’s re-approval.)

The TWN lawyers claimed that the federal representatives had ignored evidence from the band’s experts that put the likelihood of tanker spill as high as 75%, maintained that diluted bitumen could sink and be irretrievable in one-to-two days, and that the noise from increased tanker traffic out of Burrard inlet and into the Strait of Georgia could threaten the survival of the orcas that are already “on the brink of extinction.” (Never mind the 100 or more ships that ply those lanes daily already.)

Coldwater’s lawyers argued that the government’s representatives had given the band too little time to discuss the findings from their hired hydro-geological engineer that recommended alternative routes for the pipe that avoided crossing the creeks. (Never mind the fact that the existing Trans Mountain line has crossed creeks in their territory for 65 years without incident.)

And the lawyer for the Stó:lō complained that the feds spent too little time on the consultations (January to May) after wasting too much time preparing (August to December) and failed to “adequately address” the bands 89 recommendations.

Unlike the previous federal court panels—such as those that killed the Northern Gateway and quashed the TMX in 2017—this triumvirate of judges appears devoid of any who might be described as activist. All three have backgrounds in corporate litigation or tax law and none of them hail from Burnaby—site of the controversial TMX terminal and home of Justice Eleanor Dawson, who wrote the 2017 TMX decision quashing the project, and co-wrote the Northern Gateway killer in September 2016.

Thus, for Alberta and Saskatchewan – both of whom are represented as interveners in this hearing — there is some hope that these judges might put an end to the seemingly interminable opposition of an increasingly smaller group of Indigenous activists.

Ric Dolphin is the Alberta Political Editor of the Western Standard. He has had a long career in journalism with Maclean’s, the Globe and Mail, Edmonton Journal, Calgary Herald, Alberta Report, and the original Western Standard. He was previously Publisher and Chief Editor of Insight into Government. rdolphin@westernstandardonline.com

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WATCH: Alberta Oil drives Guilbeault to meeting with Nixon

Federal Environment Minister Stephen Guilbeault’s tour of Alberta has already kicked off with a whiff of hypocrisy.

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Attended by a sizable entourage, Guilbeault exited his black gasoline-powered SUV and hustled into the McDougall Centre in Calgary for a meeting with Alberta Environment Minister Jason Nixon.  

Guilbeault has dedicated most of his career to telling Canadians they need to transition from petrochemically fueled transportation. During this meeting though, Guilbeault chose not to find an utilize an electric-powered SUV in order to demonstrate his environmental virtue. With the resources of the entire federal government behind him, one would have thought that Guilbeault could have arranged appropriate transportation for his cross-Canada tour.  

It’s almost as if electric vehicles are still not ready for mainstream use yet. 

At least Guilbeault contributed to the Western economy with his conspicuous consumption of local petrochemical products.  

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Officials urge booster injections to tackle lingering Delta variant amid Omicron craze

The WHO classified Omicron as a “variant of concern,” however, the South African doctor who discovered Omicron in her patient says she is “stunned” by the response.

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The National Advisory Committee on Immunization (NACI) is now strongly urging COVID-19 booster injections for those over the age of 50.

In addition, the committee is now recommending boosters of an authorized mRNA vaccine to those 18-49 years of age at least six months after completion of a “primary COVID-19 vaccine series with consideration of jurisdictional and individual risks.”

The announcement comes amid global discussion of the Omicron variant. The federal government requested on Tuesday that NACI swiftly review its booster guidance in response to Omicron.

The NACI’s new booster recommendation, however, focuses on the lingering Delta variant while more details are gathered on Omicron.

On Nov. 26, 2021, the World Health Organization (WHO) classified Omicron as a “variant of concern,” although the South African doctor who discovered Omicron in her patient says she is “stunned” by the response.

“As chair of the South African Medical Association and a GP of 33 years standing, I have seen a lot over my medical career,” writes Dr. Angelique Coetzee, in an op-ed for the Daily Mail.

“But nothing has prepared me for the extraordinary global reaction that met my announcement this week that I had seen a young man in my surgery who had a case of COVID that turned out to be the Omicron variant.”

The young man was unaware he had contracted the virus.

Coetzee says she has seen nothing about the variant that warrants panic.

“No one here in South Africa is known to have been hospitalized with the Omicron variant, nor is anyone here believed to have fallen seriously ill with it,” writes Coetzee.

She also says the variant has been circulating South Africa for “some time.”

Viruses — such as COVID-19 — have their own DNA or RNA, therefore allowing them to mutate into new forms.

“This virus is going exactly how you’d expect,” Dr. Steven Pelech, chair of the Scientific and Medical Advisory Committee at the Canadian Covid Care Alliance, told the Western Standard.

“Strains are going to predominate which are more infectious and mild. That’s how it displaces other variants, it doesn’t kill the host. The host often doesn’t even know they are infected.”

Pelech — who is far from alone in his analysis — suggests the “variants of concern,” including Delta, are merely steps towards COVID-19 evolving into a common coronavirus. One that is highly infectious and exceedingly mild.

The Canadian government implemented additional travel restrictions in response to Omicron on November 30 — built upon previous measures.

“We know that these concerning mutations can arise and, where vaccinations are low in parts of the world, they can spread rapidly,” said BC Provincial Health Officer Dr. Bonnie Henry on Tuesday.

BC officials say the province will have more information on Omicron and its implications — such as vaccine efficacy — in the coming weeks.

“Isn’t this the same playbook we heard a year ago with the Delta variant?” said Pelech.

Reid Small is a BC-based reporter for the Western Standard
rsmall@westernstandardonline.com
Twitter.com/reidsmall

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Surrey RCMP investigating rocks thrown from overpass

Multiple vehicles, including a transit bus, were damaged by rocks hurled from the pedestrian overpass. Fortunately, no one was injured.

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Several incidents involving rocks thrown onto Highway 99 in South Surrey have prompted an investigation from Surrey RCMP.

Multiple vehicles, including a transit bus, were damaged by rocks hurled from the pedestrian overpass. Fortunately, no one was injured.

The first incident took place on November 26, at 7:44 p.m. when a semi-truck and bus were struck with rocks. The following incident, involving another two semi-trucks occurred three days later on November 29 at 10:49 p.m., and most recently, November 30 at 10:20 p.m. when yet another two semi-trucks were damaged.

“These incidents are very concerning. Throwing objects off of the overpass has the potential to cause serious or even fatal injuries to the occupants of vehicles,” said Cpl. Vanessa Munn, Surrey RCMP.

“We are asking anyone with information to contact police. If you reside in the area please check your residential cameras and be sure to report all suspicious activity to police.”

The overpass where these incidents took place is between the 32 Avenue and King George Boulevard exits of Highway 99.

Reid Small is a BC-based reporter for the Western Standard
rsmall@westernstandardonline.com
Twitter.com/reidsmall

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Petition: No Media Bailouts

We the undersigned call on the Canadian government to immediately cease all payouts to media companies.

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