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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.




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


Woke readers would not, could not read these Dr. Seuss classics

Six Dr. Seuss books out of the 60 he wrote will no longer be published because they “portray people in ways that are hurtful and wrong,” the business that preserves the author’s legacy said




Woke readers of children’s books might like Green Eggs and Ham, but a half dozen classics from the immortal Dr. Seuss are heading for the moral dustbin.

Six Dr. Seuss books out of the 60 he wrote will no longer be published because they “portray people in ways that are hurtful and wrong,” the business that preserves the author’s legacy said, CNN reported.

Books that will no longer be published are: And to Think That I Saw It on Mulberry Street, If I Ran the Zoo, McElligot’s Pool, On Beyond Zebra!, Scrambled Eggs Super! and The Cat’s Quizzer.

If I Ran The Zoo

CNN reportes Dr. Seuss Enterprises said it made the decision after consulting educators and reviewing its catalog. 

“Ceasing sales of these books is only part of our commitment and our broader plan to ensure Dr. Seuss Enterprises’s catalog represents and supports all communities and families,” it said in a statement. 

The Cat’s Quizzer

The statement came Tuesday, the birthday of the venerable children’s book author. 

Theodor Seuss Geisel has over 650 million copies of his books in print.

But CNN reported Geisel has “a long history of publishing racist and anti-Semitic work”, spanning back to the 1920s when he was a student at Dartmouth College. There, he once drew black boxers as gorillas and perpetuated Jewish stereotypes by portraying Jewish characters as financially stingy, according to a study published in the journal Research on Diversity in Youth Literature.

Scrambled Eggs Super!

That study, published in 2019, examined 50 books by Dr. Seuss and found 43 out of the 45 characters of colour have “characteristics aligning with the definition of Orientalism,” or the stereotypical, offensive portrayal of Asia. The two “African” characters, the study says, both have anti-black characteristics, said CNN.

“In The Cat’s Quizzer, the Japanese character is referred to as ‘a Japanese,’ has a bright yellow face, and is standing on what appears to be Mt. Fuji,” the authors concluded.

Seuss book

In If I Ran the Zoo “the three (and only three) Asian characters who are not wearing conical hats are carrying a White male on their heads. The White male is not only on top of, and being carried by, these Asian characters, but he is also holding a gun, illustrating dominance. The text beneath the Asian characters describes them as ‘helpers who all wear their eyes at a slant’ from ‘countries no one can spell.'”

Seuss book

The study argues since most human characters in Dr. Seuss’ books are white, his works center whiteness and thus perpetuate white supremacy.

Geisel was born 1904, passing away September 24, 1991 at the age of 87.

Seuss book

Dave Naylor is the News Editor of the Western Standard

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Chinese-Canadians were working to contain COVID weeks before feds sounded alarms

The Commons public safety committee was told one MP said he learned of the risk not from the feds, but organizers of a Chinese-Canadian fundraiser in his BC riding.




Some Canadians of Chinese descent learned and acted on the dangers of COVID-19 more than a month before the Public Health Agency started sounding warnings.

The Commons public safety committee was told Monday, one MP said he learned of the coronavirus risk not from the feds, but organizers of a Chinese-Canadian fundraiser in his BC riding.

“I just want to relate a story in my riding,” said Conservative MP Tako Van Popta (Langley-Aldergrove, B.C.).

“My first exposure to the virus – we weren’t even calling it COVID-19 at the time – was in January of 2020, six weeks before the World Health Organization declared Covid-19 to be a pandemic.

“There was a scheduled Chinese New Year here in my riding that I was going to attend. It was cancelled because people from the Chinese community here in my riding of Langley-Aldergrove, which is quite a significant community, said, ‘There’s something going on in China. We want to stop that, so we’re going to cancel this meeting.’”

A Chinese New Year celebration was to be held January 25, put on by The Langley Chinese Association.

But the group warned of “the coronavirus concern” and refunded all tickets.

“It’s just so sad but we do believe it is the smart thing to do,” one organizer told the Langley Advance Times that day.

“It is just getting worse and worse.”

The PHA at the time said there was little chance of a pandemic in Canada.

The Agency in memos said “the risk of this virus within Canada continues to remain low at this time” as late as March 9, two days before the World Health Organization declared a global pandemic.

A day after that proclamation on March 12 , the PHA hosted a scheduled Ottawa convention of epidemiologists at a biannual Canadian Immunization Conference.

The cost of hosting the event was $319,167.

The event even came after Prime Minister Justin Trudeau urged people to “figure out how to stay home from work and work from home.”

Government waited until last March 18 to restrict all foreign air travelers from Canada except permanent residents and U.S. citizens.

Orders requiring all returning Canadians to quarantine for two weeks were not issued until March 26.

“This has been with us for thirteen months, and the Liberal government has been very, very slow in securing our borders,” said Van Popta.

Dave Naylor is the News Editor of the Western Standard

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Feds considered buying GM plant to make electric cars

GM said it was shuttering its plant in Oshawa in 2018 after more than 100 years




A plan by cabinet to buy a closed GM plant and start building electric cars has be shelved.

Blacklock’s Reporter said internal memos show supporters of the plan had urged the Liberal government to purchase the plant to make all-Canadian vehicles.

“We seem to have some pretty fundamental differences of opinion about the role of industry and the private sector in all of this,” a political aide to then-Industry Minister Navdeep Bains wrote in an April 14, 2020 email.

GM said it was shuttering it’s plant in Oshawa in 2018 after more than 100 years.

The announcement drew some anger because it followed a $10.8 billion bailout of General Motors by federal and Ontario taxpayers in 2009.

An organization called Green Jobs Oshawa and members of the NDP caucus petitioned the government to take over the plant.

“The general concept is that the GM Oshawa workforce would be tapped to make electric vehicles and the government should bankroll this transformation,” said one staff memo.

“The specifics of the proposal have always been a moving target.

“The dollar figure was north of $1 billion and some versions of the proposal called for the Government of Canada to buy the plant outright from General Motors.”

“Are we considering the proposal?” asked Sabrina Kim, then-director of communications in the Prime Minister’s Office.

“No,” replied Sam Eberlee, a special assistant at the industry department.

“They seem to be making their pitch through petitions and headlines.”

“Discussions with General Motors Canada on the retooling are ongoing. We have a good story to tell on supply side work with the auto sector.”

The company received a $10 million contract last March to retool a plant to manufacture high-grade N95 pandemic masks.

GM also announced last November it would reopen the Oshawa factory by 2022 to manufacture Silverado and Sierra pickup trucks.

On October 8, cabinet gave a $295-million grant to Ford Motor Company of Canada to produce electric vehicles in Oakville, Ont.

“This is a win-win,” Prime Minister Justin Trudeau told reporters at the time.

Electric vehicles account for just three percent of sales nationwide despite $5,000 federal rebates.

Dave Naylor is the News Editor of the Western Standard

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