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Federal courts dismiss TMX challenge as “posturing”

Four bands appealing the consultation process didn’t just lose in court. They were scolded by the high court for intentionally gumming up the process.

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VANCOUVER –  In a decision that came as no real surprise, the Federal Court of Appeal on Tuesday dismissed the latest attempt by four BC indigenous groups to quash the Government of Canada’s approval of the Trans Mountain Pipeline extension (TMX). This removes another barrier that had the potential to block completion of the 1,150-km, 890,000 bbl/d line between Edmonton and Burnaby.

In a December hearing, the three justices heard lawyers from the four bands—the Tseil-Waututh, Squamish, Coldwater, and Stó:lō (the collective name for seven Fraser valley villages)—argue that the federal government’s consultation with the bands had been inadequate. Government lawyers argued rather more convincingly that the consultations – which included the direct involvement of then Natural Resources Minister Amarjeet Sohi – were as adequate as necessary.

This was the second round of consultations, held at the behest of a previous (and more liberal) Federal Court of Appeal triumvirate, whose August 2018 decision quashed the government’s 2016 approval of the TMX on the grounds that the first round of consultations had not been “meaningful.” 

The court ordered a second round, and following its conclusion in June 2019, the federal cabinet (Governor in Council) approved the project for a second time. But in September the order was challenged by six Indian groups (two later dropped out) and the  December hearing date was set.

In their ruling on Tuesday, the three male septuagenarian judges, led by chief Justice Marc Noél, 71, concluded that  “there is no basis for interfering with the Governor in Council’s second authorization of the project. The judicial review applications will be dismissed.”

In their lengthy list of reasons for the dismissal, the justices applauded the federal government’s thoroughness in consulting with the bands, deemed its measures to accommodate their concerns as adequate, and chided the bands for their delaying tactics and “posturing.”

“[G]iven the time available,” reads the decision, “it was incumbent on all parties to engage in the consultation process diligently and to work toward accommodations that were responsive to the flaws identified in TWN 2018. Unfortunately, this did not always take place: much time was taken up by unnecessary delay, posturing and insisting on matters of form rather than substance.”

All four bands claimed that Canada, as owner of the Trans Canada pipeline since July 2018, did not engage in the consultation process  with “an open mind.”

The justices said that “based on the record before us, there is no evidence that the Governor General in Council’s decision was reached by reason of Canada’s ownership interest rather than the Governor in Council’s genuine belief that the project was in the public interest.”

The decision went on to address the complaints made by each of the four groups, which focused on an alleged lack of “meaningful” consultation by the government. 

Here the judges expounded on the definition of “meaningful” and its relationship to reconciliation as envisaged by the Truth and Reconciliation Commission of Canada.

Reconciliation, they wrote, “is meant to be transformative, to create conditions going forward that will prevent recurrence of harm and dysfunctionality but also to promote a constructive relationship, to create a new attitude where Indigenous peoples and all others work together to advance our joint welfare with mutual respect and understanding, always recognizing that while majorities will sometimes prevail and sometimes not, concerns must always be taken on board, considered, and rejected only after informed reflection and for good reason. 

“This is a recognition that in the end, we all must live together and get along in a free and democratic society of mutual respect.”

In criticizing the consultation process, all four bands pointed to a lack of “accommodation” of their concerns, and in most cases satisfactory accommodation seemed to amount to killing the project.

“The process of meaningful consultation can result in various forms of accommodation,” reads the decision. “But the failure to accommodate in any particular way, including by way of abandoning the project, does not necessarily mean that there has been no meaningful consultation… reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one.”

Citing case law, the court said it was clear that “although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try to veto it. Tactical behaviour aimed at ensuring that discussions fail within the time available for consultation is not consistent with reconciliation and would, if tolerated, allow for [an] effective veto right.”

The justices cited a number of instances of such delaying tactics by the four groups. 

Take for example the Squamish and Tseil-Watauth bands, the two coastal bands that, partially backed by US environmental groups, have long publicly demonstrated for the killing of TMX.

Their salient concerns are the risk of a bitumen spill from the seven tankers a week that will ply Burrard Inlet and the debilitating effect an extra tanker a day might have on the killer whales in the Strait of Georgia (through which about 100 ships a day already pass).

In its 2018 ruling, the Federal Court of Appeal had called the government’s consultation with the bands on these matters inadequate. The bands say that the subsequent consultations—which took the form of a reconsideration hearing by the National Energy Board—were also inadequate.

This hearing and subsequent technical consultations  saw the government’s experts pitted against the Indians’ experts on matters such as the rapidity of diluted bitumen dispersion in Burrard Inlet and the effect of tanker noise on orcas. The government agreed to various mitigation measures, including funding for training indigenous groups in spill response and to develop technology for quieter vessels.

The Squamish called the measures inadequate and also claimed the government withheld pertinent information from it. The judges disagreed and also accused the Squamish and Tseil-Waututh of postponing meetings and otherwise confounding the consultation process.  

“While hard bargaining on the part of Indigenous groups is permissible,” write the judges, “Tsleil-Waututh’s conduct during the re-initiated consultation process exceeded hard bargaining and interfered with Canada’s efforts to consult and accommodate. Canada’s efforts nonetheless resulted in adequate consultation and responsive accommodation measures.”

While the Court of Appeal decision removes another hurdle facing the TMX—which is already under construction in Alberta—another potential court challenge looms.

The Tseil-Waututh and Squamish applied to the Supreme Court of Canada to appeal the limitation imposed by a judge on their hearing in the Court of Appeal. They had wanted to argue that the National Energy Board’s environmental assessment process (re: whales and tankers) had been flawed, but the Appeal Court judge ruled that that issued had already been dealt with in court. We suspect the Supreme Court will refuse to hear the appeal and that the only remaining recourse for the anti-pipeline collective will be civil disobedience. 

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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Jivraj admits planting fake stories with Press Progress, CBC

Under oath, Jivraj admitted he was a long-time informant for Press Progress, the de facto media arm of the NDP.

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Western Standard News editor Dave Naylor has spent two weeks investigating the story of Caylan Ford. Ford seemed a rising political star – intelligent, photogenic and a working mother. She was recruited by Jason Kenney to run provincial for the UCP.

Ford seemed to be on the path to stardom when she was shot down in flames by rumours and planted news stories in a NDP-linked news site.

Ford blames one man for her downfall – Kiram Javrij. 

Over the next week, Naylor will tell their story backed with court documentation and interviews.

Karim Jivraj, under testimony during a deposition, detailed just how complex his undercover harassment of UCP candidate Caylan Ford, and other women was.

Under withering questioning by Ford’s Lawyer, R.E. Harrison, Javrij admitted to planting fake stories with the NDP-linked Press Progress and the CBC.

In October 2018, Jivraj wrote a letter accusing Ford of committing “residency fraud” and claimed she was ineligible to stand as a candidate for election in the riding of Calgary Mountainview.

“He asked nine members of my constituency association board to sign the letter, but did not sign it himself,” said Ford in an exclusive interview with the Western Standard.

“Then he sent it to the media, and invited journalists to report on his allegations. Press Progress did.”

The following is a portion of the Q and A between Harrison and Jivraj.

Harrison: You say that you helped author the letter?
A: Yes.

Harrison then ask Jivraj who else on the board helped author the letter to then UCP Executive Director Janice Harrington.

Q: Now, after authoring the letter, you circulated it to the other board directors to seek their signatures?

A: Yes. I — I and others circulated it.

Read Javrij’s letter to the Mountainview board

Harrison then got Jivraj to admit he didn’t sign the letter he letter. Jivraj then detailed how he was the one who sent the letter to the NDP-linked news website, Press Progress.

Q: The October 13, 2018, article from Press Progress is entitled “UCP Constituency Association Accuses Jason Kenney’s Handpicked ‘Parachute Candidate’ of Breaking Party Rules.” Do you see that.

A: Yeah.

Q: Do you recognize this article?

A: Yes.

Q: Now, do you know who sent the October 1, 2018, letter to Press Progress?

A: I believe I did.

In November 2018, Jivraj purchased Google attack ads on searches of Ford’s name. These ads included a fabricated quotation, which Jivraj attributed to Ford. Harrison asked Jivraj who bought them.

A: I’m not sure if “purchase” is the right word. I received a free $50 budget on Google Ads, and so that was used for this. So there was no monetary investment.”

Q: Okay. So these ads were posted by you?

A: Yes.

In November 2018, Jivraj used a pseudonymous email account to send defamatory statements about Ford to 1,300 of her electors. The emails included another fabricated quotation which he attributed to Ford.

Q: You see the last attack ad has a quote: “My family has lived in southwest Calgary for generations. I could never live in north Calgary. Anywhere above the Bow is basically a suburb.” Do you see that quotation?

A: Yes

Q: Did you create that quotation?

A: I don’t believe so.

Q: Where did you get that quotation from?

A: I’m not sure. I think Ms. Ford may have said something along those lines when I was looking for a place in Calgary.

Q: You’re aware that Ms. Ford has lived in the neighbourhood of Sunnyside?

A: I became aware of that afterward.

Q: And why did these attack — why did these ads link to Press Progress?

A : That’s a good question. I don’t know.

Under oath, Jivraj admitted he was a long-time informant for Press Progress, the de facto media arm for the NDP.

Q: Did you email or call PressProgress to disclose this conversation?

A: I can’t recall. I don’t — I can’t recall if I reached out directly to Press Progress. I think the — what initiated the cycle of events was my meeting, my physical meeting at (Calgary coffee shop) Vendome.

Q: What I want to know is whether you phoned Press Progress to provide them with the contents of the conversation or provide them information

A: I can’t recall.

Q: Why did Press Progress call you out of the blue as you’ve insinuated.

Jivraj admits he has been in contact with Press Progress previously to discuss provincial and federal politics.

Q: OK, How many times would you have spoken with Press Progress previously to their phone call to you?

A: Again, I don’t want to guess, but several, several times.

Jivraj admits he has been in contact with Press progress since 2015. Ford herself then jumps into the questioning, asking Jivraj about his dealings with the CBC.

CBC Logo (photo credit CBC)

Ford: Did you disclose additional private messages between yourself and me to the CBC?

A: Yes

Ford: Have you created any other pseudonymous Twitter accounts?

A: Yeah. In my various political activities, yes, I’ve created many.

Ford is suing Jivraj, Press Progress and several media outlets for a total of $7 million.

None of the allegations have been proven in court.

Dave Naylor is the News Editor of the Western Standard
dnaylor@westernstandardonline.com
Twitter.com/nobby7694

The saga of Karim Jivraj’s campaign against Ford and other conservative women is just too incredible to be told in a single feature article.

That’s why the Western Standard decided to break it down into a series, which will dive into several of the actions taken by Jivraj. It’s a story we did not believe until we obtained the evidence.

COMING NEXT: Tap on back leads to assault allegations from Rivraj against Ford

PREVIOUSLY: 
How a Conservative candidate worked with the NDP to bring down star UCP candidate
Tory candidate admits using a fake Twitter account to spread false sexual rumours
Jivraj admits to undercover online campaigns against women

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EXCLUSIVE: UCP MLA says Shandro approved barricading GraceLife Church

But a spokesman for Shandro denied any involvement by the minister.

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Alberta Health Minister Tyler Shandro personally approved the AHS-RCMP raid and barricading of the Grace Life Church according to a UCP MLA that spoke to the Western Standard on condition of anonymity.

RCMP and Alberta Health Services conducted a Wednesday dawn raid on the church in Spruce Grove, Alberta after it repeatedly refused to comply to lockdown and capacity orders from the government.

“Shandro directly signed off on the raid,” said the MLA.

The MLA said the public backlash against the raid has rocked the government, and they are considering removing the wall before an expected large service is held there Sunday.

But a spokesman for Shandro denied any involvement by the minister.

“Minister Shandro did not direct or sign off this action. The law gives AHS independent authority to carry out such an action. The Minister is not required to sign off on enforcement activity such as seen at GraceLife, nor did he sign off. “

The move against the church came the day after Alberta Premier Jason Kenney threw the province back into a COVID-19 lockdown for the third time, discarding the policy of phased reopening based on measurable targets.

The move infuriated even members of his own caucus, with 17 UCP MLAs signing a public letter denouncing Kenney.

Another UCP MLA told the Western Standard they are “100% certain” Kenney will be the subject of an early party leadership review.

“Caucus is in total chaos,” said the MLA, who also spoke on the condition of anonymity.

A new Angus Reid poll this week showed a whopping 75% of Albertans oppose Kenney’s handling of the pandemic, including those that believe he has gone too far in restrictions, and those who believe that he hasn’t gone far enough.

Former federal Canadian Alliance leader Stockwell Day the Alberta government for barricading the GraceLife Church, saying it would bring “gleeful howls” from dictators around the world.

The church’s pastor, James Coates recently spent 35 days in the Edmonton Remand Centre after refused to agree to stop preaching as a condition of his bail.

Dave Naylor is the News Editor of the Western Standard
dnaylor@westernstandardonline.com
Twitter.com/nobby7694

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Kenney urges GraceLife protesters to wear masks

“I call on those who believe in the sanctity of life, to act accordingly,” he said.

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Premier Jason Kenney is warning anyone planning to take part in Spruce Grove’s GraceLife Church protest Sunday to practice COVID-Alberta Health Services (AHS) safety protocols.

Kenney said it would be “tragic” if the protest “lead to a super-spreader event.”

On Tuesday the AHS, aided by the RCMP, raided the GraceLife Church and built a wall around it.

People outraged by the move are planning to protest outside the barricades on Sunday and perhaps even hold a service.

The church’s pastor, James Coates was jailed for more than a month for repeatedly holding packed Sunday services that exceeded the COVID-19 limit.

Asked at a Saturday press conference what he’d say to the protesters, Kenney replied: “I would tell them to take COVID seriously…to keep people safe.”

“I call on those who believe in the sanctity of life, to act accordingly,” he said.”If people are going to gather, please do social distancing and wear a mask.”

Kenney claimed Alberta had the most freedom of religion in the entire country, noting the province hasn’t closed places of worship like they’ve done in other jurisdictions.

“Thank you to those faith communities (who have followed the law) for respecting the sanctity of life.”

Dave Naylor is the News Editor of the Western Standard
dnaylor@westernstandardonline.com
Twitter.com/nobby7694

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