‘Race Based Court Decisions Damaging Economy’

“What has happened to ‘Trans Mountain’ is not surprising. This is the third time in 12 years that the Federal Court has blocked a major pipeline proposal on grounds of ‘insufficient consultation’ {with only aboriginal Bands, NOT the rest of Canadians}, following the Mackenzie Valley natural-gas pipeline in 2006 and the Northern Gateway oil pipeline in 2016. In each case, the proposal was backed by many ‘First Nations’ {aboriginal} and Métis {mixed race} organizations, but a small number of ‘First Nations’ (six, in the case of Trans Mountain) were able to get a court to rule that some phase of ‘consultation’ had been inadequate. 

“These results flow from the character of the jurisprudence. In the seminal ‘Haida Nation’ decision (2004),
the Supreme Court created the “duty to consult and accommodate ‘First Nations’ regarding development projects on their {claimed} ‘traditional territories’. That right to be consulted was not entrenched in any constitutional document or federal legislation; the Court ‘inferred it’ from the “Honour of the Crown”. It was not surprising for the Court to create new law; it happens all the time. But in this instance, the new law was exceptionally vague because the ‘Honour of the Crown’ has no clear definition. It is, ultimately, whatever the courts say it is.

“Since then, Parliament has passed no legislation to better define the ‘duty to consult’. In this legislative vacuum, the courts act in the only way they can, reviewing specific cases retrospectively. There are no bright lines in this jurisprudence; it is constantly ‘evolving’ as courts hear new arguments about whether consultation has been adequate under the elastic concept of the Honour of the Crown.

“It is a perfect environment for project opponents to conduct a kind of guerrilla warfare – sometimes dubbed ‘lawfare’ – in the courts. Months stretch into years as the courts follow their methodical process of hearings and appeal. Meanwhile, costs mount, perhaps rendering a project unprofitable. Or conditions may change as time goes by. The Mackenzie Valley proposal died when fracking caused the price of natural gas to collapse. Northern Gateway died when a newly-elected government delivered the coup de grâce. Small wonder that international investors are rushing for the exits.

“Also, the jurisprudence has been largely developed around individual development proposals that affect only one or a small number of ‘First Nations’ – a mine or oil well here, a forestry clear-cut there. In those circumstances, consultation can work because both sides have incentives to settle. The company wants to get on with its proposal, the ‘First Nation’ (not always, but often) would like what comes with an impact benefit agreement: cash payments, jobs, service contracts, training programs, sometimes even an ownership stake. Transaction costs may rise, but business can go forward.

“But the jurisprudence has not taken account of the needs of corridor projects such as pipelines, which have to run from start to finish to be useful. Long corridor projects typically require consultation with dozens of ‘First Nations’, and anyone with experience of human affairs knows that unanimity is rarely achieved in any endeavour. Holdouts may block projects for strategic reasons, hoping for a better deal, or because they are opposed in principle.

In the larger economy, this problem is solved by the exercise of expropriation. Acting under legislation that provides appropriate compensation, regulatory authorities can take possession of land required for essential corridor projects. Expropriation is not a perfect solution, but without it, we would not have many pipelines, power lines, roads or rapid-transit lines, and modern industrial society could not exist.

“The problem is that we have no equivalent legislation for {segregated, discriminatory} ‘First Nations’ property rights. Thus, even though the courts repeat that the right to be consulted does not entail a veto, the legal process as it has evolved effectively confers a veto power on small numbers of holdout ‘First Nations’. Ironically, that veto power damages not only the Canadian economy but many ‘First Nations’ organizations who want economic development to raise their people’s standard of living. The courts have boxed themselves in, and only Parliament can break the gridlock.”

–‘Only Parliament can fix Canada’s pipeline impasse’,


COMMENT: This Comment got the most ‘Likes’ and no, it wasn’t us:
It’s time to change the constitution. Otherwise, resource development in Canada is done. Why would anyone invest in Canadian resources when unelected ‘first nation’ governments control everything through section 35 of the constitution? And the notwithstanding clause can’t even be applied. Time to change the constitution if we ever want anything built. ‘First Nations’ are just so incredibly powerful now, I can’t reasonably see any other solution.”
The 2004 Supreme Court decision is slowly making Canada ungovernable and undemocratic. The ‘indigenous’ peoples have rights, but those rights should be clearly defined and above all, defined so that tiny minorities cannot thwart the will of governments duly elected by all Canadians.”
“No matter what legislation the federal Parliament passes, a ‘First Nation’ can challenge what is done under section 35.”
{Which is why the mistake of Section 35 must be removed from the Constitution…}
“If Section 35 gives extraordinary rights to a tiny minority over a large majority , then maybe parliament should “do what it needs to do”, to change Section 35.”
“Parliament is the ultimate, supreme court of the land. If our elected governments don’t like the laws as written or the results that the courts are producing, the procedures exist legislatively and constitutionally to change them.”
“Can’t figure how beating the drum all day puts food on the table, Wonder what will happen when government coffers dry up from lack of industry, social assistance is cut, will they still be beating the drum or out looking for work?”

“For some reason, in Canada judicial appointments go through without the serious scrutiny they face elsewhere. It’s time for that to change and for us all to take a much closer look at the individuals who seem to constantly rewrite the laws and the political decisions of this country with little common sense or precedent.”
The trio of activist judges at the Federal Court of Appeal who halted construction of the Trans Mountain Pipeline Expansion have done irreparable damage to Canada as a safe place to do business.

“Reading over the decision, it forces any rational person to ask how our energy sector can possibly function in this country when over five years of consultation by the company, the regulator and the federal government can be thrown out by just one court decision, especially given each pipeline project, no matter its merits, can expect to see an endless series of court challenges as a permanent delay tactic used by opponents.

Justice Eleanor Dawson writes that the federal government did not conduct “meaningful consultation”. The problem is that the government, the regulator and the company were doing exactly what they believed the Federal Court of Appeal asked for in a previous decision on consultation on the Northern Gateway pipeline. The court is moving the goal line — on what they believe the government’s responsibilities is — to follow their own law and as a result, Canada’s prosperity and economy will suffer.

“To suggest that both the National Energy Board (NEB) and the federal government did not go out of their way to engage and consult with communities impacted by the construction of the pipeline is just not true, and a generous revision of history.

“It’s difficult to imagine a scenario where a meaningful dialogue between pipeline proponents and pipeline opponents can take place. If there’s anything we’ve learned over the past few years, it’s that foreign-funded environmental activists have no willingness to budge in their opposition to pipeline projects.

“Premier Rachel Notley has learned that the hard way. Her government told Albertans and industry that she could, with help from Prime Minister Justin Trudeau, negotiate the grand bargain where, through oilsands caps and carbon taxes, we could win “social licence” for new pipeline approvals. But since that time, U.S.-funded environmental activists have only hardened their opposition as they march ever closer to achieving their goal to leave all Canadian oil in the ground.

“What happens to the workers, including those from pipeline-supportive ‘indigenous’ {aboriginal} groups, who will lose work and significant benefits because of the delays of this pipeline? And what about the 43 ‘First Nations’ {aboriginal communities} that have mutual benefit agreements with Trans Mountain, that will have to sit out on benefits worth more than $300 million? How is it possible that a process that resulted in these 43 agreements did not involve meaningful consultation?

“The court also decided the NEB must consider marine safety in its evaluation of the Trans Mountain project. The NEB decided quite rightly marine safety was outside of its jurisdiction, but it begs the question: when was the last time a drop of foreign oil had to undergo an exhaustive marine safety evaluation moving into ports on either Canada’s western or eastern coasts?

“Something is seriously broken.

“For some reason, in Canada judicial appointments go through without the serious scrutiny they face elsewhere. It’s time for that to change and for us all to take a much closer look at the individuals who seem to constantly rewrite the laws and the political decisions of this country with little common sense or precedent.

“The result has been a situation where our legislative branch of government is continuously immobilized, while the power of our unaccountable judicial branch is ever-expanding.

“All Canadians concerned about such judicial rulings should begin paying much closer attention because it’s meant billions of dollars of investment in Alberta has evaporated, with no clear path to get it back. These games between our courts and legislators clearly tell the world that Canada is closed for business.”

–‘Activist judges’ Trans Mountain ruling endangers Canadian business’,
Brian Jean, Calgary Sun, September 7, 2018 


COMMENT: “Where do people think the “money” for our social programs will come from? How will they take their selfies? Literally everything we utilize in our everyday lives, including medical equipment, are the benefits of oil by products and the economic prosperity and resource sovereignty we are lucky to have. There is nothing we do that will satisfy the foreign-funded opposition to our resource and economic sovereignty. Our ability to govern ourselves through democracy and our rule of law is being hijacked by an unaccountable/unelected branch of government.”

Justice Eleanor Dawson (left)

“As former Saskatchewan premier Brad Wall noted dismally, the same judge behind this ruling — Eleanor Dawson — was behind the previous ruling against Northern Gateway. Regulators had reportedly tried using her last ruling as a roadmap to ensure perfect compliance for Trans Mountain. This time, her court came up with yet new boxes it decided it now wants checked.
“With every court challenge, political stunt, blockade and act of sabotage, the odds have been stacked ever higher against the Trans Mountain pipeline happening. Its builders and their political backers might win a few rounds. But eventually something would stop them. Maybe Thursday’s federal appeals court decision overturning the National Energy Board’s approval of Trans Mountain is that something. Maybe not. But the project will face many more assassination attempts. And it will have to be lucky enough to survive every one…

“The government need not return to Square One, but the remedies demanded by the appeals court — a new environmental assessment on the effect of more oil tankers on killer whales, and a fresh round of consultation with Aboriginals — are not the small matters some people are suggesting. They will take a year at least, and likely longer. Any appeal to the Supreme Court would take even longer, should the ‘Liberal’ government decide to try that long shot.

“Just getting this decision took nearly a year. It was the 18th court challenge the Trans Mountain pipeline expansion faced. Regulators and Kinder Morgan, the project’s owner up until this week, had prevailed 17 times. The project could not afford to lose even once. It just did.

“The pessimists have it right, again. The Trans Mountain expansion was more meticulously threaded through all of Canada’s innumerable regulatory hoops than any project before. Kinder Morgan’s Canadian president, Ian Anderson, had taken to heart the vital importance of going over and above every minimum threshold, making it his personal mission to meet with ‘First Nations’ groups all over B.C. and Alberta and listen to their concerns. Regulators under both ‘Conservative’ and ‘Liberal’ governments had worked to get Trans Mountain approved, and yet still failed to meet standards that judges can and do change any time they wish.

“As former Saskatchewan premier Brad Wall noted dismally, the same judge behind this ruling — Eleanor Dawson — was behind the previous ruling against Northern Gateway. Regulators had reportedly tried using her last ruling as a roadmap to ensure perfect compliance for Trans Mountain. This time, her court came up with yet new boxes it decided it now wants checked. Listening to ‘First Nations’ concerns is not enough now; the rules now must require a dialogue done “interactively”.

“…Older folks will remember that we have built major projects in this country before. The expertise hasn’t changed. But the rules always do… Trudeau demanded enough new regulatory requirements for the Energy East pipeline proposal to make it unfeasible.

“He denounced the previous ‘Conservative’ government for failing to do proper environmental due diligence and to consult adequately with ‘First Nations’. And he has bragged ever since that he’s been fixing all that and, unlike the last government, he’ll get a pipeline to the sea.

“Now, the courts say he didn’t do proper environmental due diligence or consult adequately with ‘First Nations’. And that he won’t soon be getting that pipeline, either… Against Trans Mountain, plenty more fuses will be set now. That new review on the whale habitat will offer yet more ammunition to opponents. The consultations with ‘First Nations’ will yield more concerns to antagonize judges. And, as constitutional lawyer Howard Anglin points out, the fact that the government will own Trans Mountain while also deciding on its approval invites fresh new arguments, possibly legal ones, about conflict of interest…”

–‘The pessimists have it right, the assassination of Trans Mountain looms’,
Kevin Libin, Financial Post, August 31, 2018



“The Supreme Court of Canada’s much-anticipated decisions in ‘Hamlet of Clyde River (Hamlet) v Petroleum Geo-Services Inc. (Clyde River)’ and ‘Chippewas of the Thames First Nation v Enbridge Pipelines Inc. (Chippewas)’ are significant in that they confirm the ability of governments to rely on regulatory processes to fulfill the Crown’s duty to consult with Aboriginal groups, including in cases where the Crown itself is not involved in the process. While the decisions largely confirm previously established legal principles, they also provide clear guidance on what practices will and will not be sufficient to meet Aboriginal consultation requirements when navigating the regulatory approval process.”

Rueben George, Project Manager for the Tsleil-Waututh ‘Nation’ Sacred Trust Initiative, wearing his Hallowe’en costume. (DARRYL DYCK–THE CANADIAN PRESS)

Tsleil-Waututh ‘Nation’ v. Canada: A case of easier said than done
“This brief post summarizes shortcomings found by the court and discusses points of clarification offered by the court with respect to the duty to consult and accommodate. In doing so, I suggest that Tsleil Waututh is a case of “easier said than done” on a number of levels, including next steps for the federal government.”

Demonstration against the Trans Mountain pipeline expansion project, Burnaby, British Columbia, March 2018. (Jason Redmond-AFP-Getty Images)

See also:
Court kills Northern Gateway pipeline{July 2, 2016}:
“Once again, lawyer/judges – at the instigation of taxpayer-funded aboriginal and environmental groups – have dealt a major economic blow to Canada, using ‘aboriginal law’ rulings to torpedo a project that the Canadian people had already spent a small fortune investigating and approving.”

Taking The Economy To Court: B.C. Update{February 11, 2016}:
“Now, Canadian courts have enabled the lawyer-driven ‘Aboriginal Industry’ to sue both companies and individuals over land use on ‘traditional territories’ — even before a tribe has proven any connection whatsoever with the land in question, and even if the land had been previously stolen from another tribe. Let the chaos begin…”
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Mail to: endracebasedlawpetition@gmail.com


One thought on “‘Race Based Court Decisions Damaging Economy’”

  1. The Indians and Eleanor Dawson do not deserve respect, or the time of day. Let the Indians who oppose this not get anymore funding as they are being extortionist bullies. Canadians have had enough of their crap and that dumb judge too!!


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