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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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Vaccine passports now mandatory in Alberta

In place of a vaccine passport, a negative test result from a privately-paid rapid test within 72 hours of service will be adequate or a person will need to show a valid medical exemption.

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The Alberta government’s new vaccine mandates for businesses, entities and events are in effect.

Each organization must follow one of two options: implement the Restriction Exemption Program (REP) requiring proof of vaccination or negative test result, plus mandatory masking, to continue operating as usual, or comply with all public health restrictions as outlined in Order 42-2021.

In place of a vaccine passport, a negative test result from a privately-paid rapid test within 72 hours of service will be adequate or a person will need to show a valid medical exemption.

The REP allows operators to avoid the majority of public health restrictions with the implementation of a proof of vaccination program, although vaccine requirements for staff are at the employer’s discretion. Face mask mandates are still required in all indoor spaces.

The program doesn’t apply to those under 12 years of age and businesses that need to be accessed by the public for daily living purposes, including all retail locations. As well, employees, contractors, repair or delivery workers, volunteers or inspectors will be permitted access to spaces without requiring a vaccine passport.

To enter spaces participating in the REP, adults need to provide valid photo identification that matches their paper or digital vaccine record showing name, vaccine type and date of administration. From now until October 25, proof of partial vaccination (one dose) will suffice, however after that date, proof of full vaccination (two doses) will be required. Those under 12 will only need to show vaccination paperwork.

Indoor entertainment, event and recreation facilities that don’t implement the REP will be limited to one-third capacity of their fire code occupancy and attendees must be in household cohorts or with up to two close contacts if they live alone.

Outdoor events and facilities have no capacity restrictions, but attendees must maintain a two-metre distancing between households.  

Restaurants that don’t follow the REP cannot offer indoor dining, and outdoor dining will be limited to six people per table from one household, and liquor sales will have to end by 10 p.m. with consumption cut off by 11 p.m.

Retail, shopping malls and food courts aren’t eligible for the REP, therefore will be reduced to one-third capacity of fire code occupancy and are required to stop all in-person dining, switching to take out only.

Indoor private social gatherings will be permitted for those that are vaccinated to a maximum of two households up to 10 (vaccine eligible) vaccinated people. There are no restrictions for children under 12. For those who are unvaccinated, indoor social gatherings are not permitted.

Private outdoor social gatherings are limited to a maximum of 200 people who are socially distanced.  

Churches will be limited to one-third of fire code capacity and masks and social distancing are still mandatory in places of worship.

Employees are mandated to work from home unless their physical presence is required for their duties.

Proof of vaccination will not be required to enter a polling place for Monday’s federal election although physical distancing, masking and other transmission reducing measures will be in place.

For more information on the Restriction Exemption Program, click here.   

Risdon is a reporter at the Western Standard
mrisdon@westernstandardonline.com

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Hockey arena backs down on banning unvaccinated kids

Within hours of the Western Standard posting the exclusive story, Oaten was contacted by the SLSFSC and advised of an update to their policy.

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Public pressure has brought minor hockey out of the penalty box in Cochrane.

Following an exclusive story by the Western Standard on Saturday, along with mounting pressure from the community, a Cochrane sports facility has revamped its vaccine passport policy.  

The Cochrane Minor Hockey Association (CMHA) and Hockey Alberta were not mandating a vaccine passport system, but Spray Lake Sawmills Family Sports Centre (SLSFSC) announced it would be requiring proof of vaccine status for anyone 12 and up.

Within hours of the story being posted, CMHS President Cory Oaten was contacted by the SLSFSC and advised of an update to their policy with this statement: “Youth between the ages of 12 (vaccine eligible) to 18 years of age are exempt from the REP vaccination requirement to enter the facility for the purpose of participating in a youth organized sport organization. Examples include (but not limited to) Cochrane Minor Hockey, Ringette, Cochrane Minor Soccer, Lacrosse, Cochrane Figure Skating Club, Comets, Junior Lifeguard Club, etc.”

Although youth may access the facility without being vaccinated, all adult spectators, coaches, volunteers and organizers of any youth activity “must show proof of vaccination, proof of a negative test, or medical exemption to gain entry to SLSFSC premises.”

“Although this helps our kids get on the ice in Cochrane, it’s still an issue at lots of other facilities, especially in larger facilities in Calgary and Airdrie,” Oaten said.

Oaten, who works in the insurance industry, points out the “huge liability issue” this poses to his and other sports organizations.

“Originally, Spray Lakes pushed us to collect this medical documentation from our members,” he said.

The CMHA board consists of 18 volunteer members.

“They can’t put those expectations on a board of volunteers. It’s a big legal issue for us,” Oaten said, adding he and his board refuse to take responsibility for requiring proof of vaccine or the collection of their members’ private medical information.

Oaten was informed the SLSFSC will now have its own security checkpoints set up in the facility and will take responsibility for checking the vaccine status of anyone 18-plus entering the building.

Oaten anticipates families will still pull their kids from hockey and other sports programs as those who remain unvaccinated will not be permitted in the facility to accompany their child.

Hockey Alberta stated on their Facebook page they are working with the Alberta government on how last Wednesday’s announcement will affect hockey for Alberta players. Oaten has asked his members to hold off on making a decision to pull their child from the program until Hockey Alberta comes forward with their updated season plan.

The Western Standard reached out to the SLSFSC for comment but did not hear back in time for publication.

Risdon is a reporter for the Western Standard
mrisdon@westernstandardonline.com

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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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