Tag Archives: Supreme Court

Roundup: Rights, title, and ratification

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We got a few more details yesterday about the agreement reached with the Wet’sutwet’en hereditary chiefs on Sunday, despite a few TV hosts somewhat obtusely demanding to know what it meant for the Coastal GasLink pipeline – despite the fact that it was stated over and over again that this agreement did not have anything to do with that, and that the matter was unresolved. The crux of the agreement was an agreement on how rights and title would be extended for the Wet’suwet’en going forward, meaning that with any future projects, there would be clarity as to who would need to be consulted – which means the hereditary chiefs – and given the new impact assessment process that the Liberals instituted (under the infamous Bill C-69), those consultations begin at the earliest possible moment for these project proposals so that affected First Nations can be brought in from the get-go. What I found especially interesting was that Carolyn Bennett said that this was in accordance with UNDRIP principles, as free, prior and informed consent (which again she stressed was not a veto). And one imagines that this kind of agreement would be a template for others when it comes to unceded territory across the country.

As for Coastal GasLink, work apparently resumed on aspects of the project, but given that some of their permits were pulled by the province’s environmental assessment agency with a demand for more consultations, one supposes that the work is on areas that are outside of Wet’suwet’en territory. Meanwhile, one of the elected chiefs who is in favour of the project was doing the media rounds in Ottawa yesterday, and he said that while his people were discussing the ratification of the new agreement, he said that he was also willing to give up the economic benefits of the pipeline is that was what his people decided that they wanted as part of those discussions. We do know that matriarchs who were in support of the project were also in the meeting between Bennett, her BC counterpart and those hereditary chiefs, so the discussion within the community is very much alive, and we’ll see in a couple of weeks when the ratification process is supposed to be concluded, what the future holds for the pipeline.

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Roundup: See you at the Supreme Court

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In the wake of the Alberta Court of Appeal reference decision on the federal carbon price, both Jason Kenney and his justice minister have been performing a particular song and dance for the media’s consumption, demanding that the federal government immediately remove said “unconstitutional” price, and demanding a rebate for all Albertans under threat of personal lawsuit.
Couple of things:

  1. This was not a court order. It was a reference question, so there is no actual weight to the finding of unconstitutionality. And federal justice minister David Lametti said as much in a letter responding to his Alberta counterpart telling that he would see him at the Supreme Court of Canada.
  2. There is already a rebate. In fact, most people get more back than they pay into it – and they are scheduled to receive the biggest rebates in the country. Demanding refunds is actually a bit gross, because it’s wilfully misrepresenting how the system works.
  3. Suing members of the federal Cabinet is not how the system works. And we actually saw said provincial minister’s old law professor take to Twitter to say that she taught him better than that. So there’s that.

https://twitter.com/cmathen/status/1232874850563260416

Meanwhile, Manitoba is threatening to continue with their challenge to the federal carbon price if they don’t get a deal on the very same thing from the federal government. While the federal government says that they haven’t received a new proposal from Manitoba, you can bet that the province wants to continue pitching a price that won’t rise, which isn’t going to be on because it’s about ensuring a level playing field across the country, and not letting premiers undermine one another in a race to the bottom.

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Roundup: Reverberations and court references

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The fallout from the Teck Frontier decision reverberated yesterday, whether it was with disappointed local First Nations, or industry groups giving the usual lamentations about investor confidence. More blame was thrown around, most of it at Justin Trudeau’s direction which seems to be in direct contradiction to what the company’s CEO said in his withdrawal letter, which talked about partisan bickering between levels of government, while also talking about how they supported carbon pricing and the emissions caps – in other words, largely siding with the federal government as the provincial government tore up the comprehensive and reasonable plan that the former NDP government had put into place with a great deal of thought and consultation, which introduced all manner of uncertainty into the market and put them into direct conflict with the federal government unnecessarily – but they also made the gamble that Andrew Scheer would win the last federal election and they wouldn’t have to worry about carbon pricing or strict regulations any longer, and well, that didn’t happen. Of course, it didn’t stop Kenney, Scheer or others from making up things wholesale in order to keep the blame on Trudeau, after they already overly raised expectations for the project (in part by lying about what its promises actually were). In conversation yesterday, a fellow journalist made the supposition that Teck may have been afraid of federal approval at this point because the expectations for it had been built so high when they knew they couldn’t deliver on it, in large part because the price of oil is simply far too low for the project to be viable, not to mention that it’s hard to attract financing as global investors are looking for climate-friendly projects these days.

In pundit response, Heather Scoffield points to the lack of the next stages of the federal climate plans, combined with Alberta’s battling those plans, as factors making us unattractive to investors. Scoffield also blames a lack of leadership for why it’s taking so long to get those needed plans in place. Max Fawcett considers Teck Frontier a metaphor for an Alberta past that won’t come back, and that the withdrawal of the application should be a wake-up call for those who are trying to bring that past back. Kevin Carmichael calls out Teck’s CEO for playing martyr while sabotaging the kind of conversation over energy and the environment that the country needs to have, but now won’t because the deadline is off the table and we have degenerated into assigning blame.

And then, as if things couldn’t get any more interesting, the Alberta Court of Appeal released their 4-1 decision that said that the federal carbon price was unconstitutional, in direct opposition to the decisions from Ontario and Saskatchewan (both of which will head to the Supreme Court of Canada next month). But that being said, there is a curious amount of overtly political editorialising within said judgement, from one of the concurring judges in particular, which I am assured by a law professor will be a field day for the Supreme Court of Canada when this ruling makes it to them.

https://twitter.com/molszyns/status/1232059249158545408

https://twitter.com/molszyns/status/1232074971918168064

https://twitter.com/molszyns/status/1232161066898968576

https://twitter.com/molszyns/status/1232054682140340225

https://twitter.com/charlesrusnell/status/1232124886937550849

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Roundup: Ministers inbound

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The ongoing protests in support of those First Nations hereditary chiefs protesting the Coastal GasLink pipeline have not yet resulted in arrests, raids, or other police action to enforce the court injunctions just yet, and VIA Rail has shut down passenger rail service throughout the country, while CN Rail has shut down their eastern Canadian operations for the time being, and that means temporary layoffs. There has been more government responses now – BC premier John Horgan is setting up new meetings, while Carolyn Bennett is heading to BC to meet with those hereditary chiefs, while Marc Miller will be meeting with the Mohawk leaders setting up the blockades in Central Canada (while Justin Trudeau says he remains apprised of the situation while abroad, and will be returning to Ottawa tonight following the conclusion of the security conference in Munich). Trudeau reached out to one of the First Nations leaders leading a solidarity protest blockading the port in Prince Rupert, and that seems to have worked, as they agreed to dismantle that particular blockade.

Part of what is underlying the response to these protests seems to be an aversion to another Oka crisis – so we’ll see whether there have really been any lessons learned, thirty years later. And police action would inflame the situation, and they seem to be alive to that situation, which is probably a good thing. I have to wonder if part of the response to this isn’t also a bit of a mirror of what we saw recently with the CN Rail strike, where certain voices started immediately howling that Parliament needed to be summoned in order to ram through back-to-work legislation or there would be dire consequences, and the government held off and lo, a resolution came within about eight days. Was there some disruption? Yes. Was the outcome better than if they had taken out the sledgehammer? Undoubtedly. And it would seem to me that similar thinking is underway here. Despite a few middle aged, white male columnists are melting down over, things are not at a crisis level – they are largely inconveniences, which is the point of protest. And by not making things worse, there remains a chance to resolve this in a peaceable manner.

This having been said, the cries that Trudeau is off trying to secure a UN Security Council seat instead of dealing with this “crisis” are myopic and don’t grasp what the seat would do for Canada (articulated in this thread), though I will lay that on this government’s chronic inability to communicate their way out of a wet paper bag. I also suspect that the hereditary chiefs’ attempt to launch a constitutional challenge against the pipeline on an environmental basis is going to blow up in their faces, so I’m not sure either side is doing themselves any particular favours in all of this.

https://twitter.com/EmmMacfarlane/status/1227934187090518022

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Roundup: A sledgehammer solution

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Talk about the sexual assault training for judges bill has continued, and the Conservatives have continued to float the idea that it should be expanded to include Parole Board officers. The problem there, of course, is that the bill deals with amendments to the Judges Act, which has bugger all to do with the Parole Board, and this too-cute-by-half tactic of the Conservatives betrays how boneheaded their tactics are.

Meanwhile, Gib van Ert, former Executive Legal Officer to the Chief Justice of the Supreme Court of Canada (who heads the Canadian Judicial Council), has some thoughts on the bill and why it’s very problematic.

Some scholars have shrugged and say “Big deal if it means they get more training,” but the original legislation was far more insidious in that the reporting requirements were a threat do the administrative independence of the court as well. But I’ve spoken to former judges who say this is unnecessary. Another one responded to van Ert. Part of the problem is that there have been high profile cases where the judge has been very wrong on sexual assault law, and that tends to be overturned at the appellate level – but much of the time, the most infamous cases have been provincial court judges, which this doesn’t deal with.

So why are they doing this? Optics. MPs want to look like they’re doing something about the problems or perceived problems, and they’re taking the sledgehammer approach because it looks effective, even when it may not actually be. But that is so much of politics these days, which we need to start breaking out of.

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Roundup: Ambrose rules out a return

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It was a day of a lot of movement within the Conservative leadership race, with big repercussions to come. Early in the day, we got word that two more names were added to the Conservative race – rookie backbencher Derek Sloan, and failed leadership candidate (and aspiring narcissist) Rick Peterson. Sloan has already come out and said that he’s open to having a debate over abortion, and he’s putting forward this absurd notion that they need to stop being apologetic about being Conservative – which would be great if the party actually put forward conservative ideas like market-based solutions to problems rather than just populist pandering. Shocking. Peterson, meanwhile, is continuing his schtick that his business success is going to translate to political success, even though he did abysmally in the last election and couldn’t secure a nomination to run in the election, which shows you just how profound his organizational skills are. Nevertheless, expect him to position himself as the “Western” candidate in the race.

And then the big bombshell – Rona Ambrose announced that she is officially out of the race. It wasn’t a surprise really, especially as word has been circulating in Conservative circles that she hasn’t made any phone calls or secured any kind of organization while she considered her options. Nevertheless, it now opens the race wide open because a lot of people who had been holding their breath and waiting for Ambrose to make a move can now make their own moves. It also means that currently, Marilyn Gladu is the only woman in the race, which can’t be healthy for the party either. (It also makes me wonder who the Red Tory in this race is going to be, because it’s not actually Peter MacKay).

And just minutes after Ambrose made her announcement, another would-be candidate, former staffer Richard Décarie went on Power Play to expound on his social conservative views. It went as well as can be expected.

While most of the other candidates quickly came out to condemn these comments, there are a few things to note here – Décarie is worth following because he has attracted some organizational heft, particularly from those who were behind Tanya Granic Allen in Ontario, and it’s not insignificant, and when you recall that Brad Trost did come in fourth the last time around. There is a particularly strong social conservative organization within the party, and they do a lot of fundraising and organizing, and that can’t be overlooked when it comes to a leadership race, where those to factors are going to count for a lot more.

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Roundup: When lower carbon is not lower carbon

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As the various interests trying to promote the continued development of Alberta’s energy sector amidst changing global markets and the need to move to a carbon-constrained future, one is bound to find a number of arguments that are inherently self-serving and containing falsehoods (such as the fiction that Andrew Scheer and Jason Kenney keep trying to promote that somehow Alberta energy can reduce the environmental footprint in China and India, and that we can take their emissions credits for it). Energy economist Andrew Leach found another one promulgated by the Canadian Association of Petroleum Producers (which I will remind you is an organization that has gone so far to the one side that major players like Royal Dutch Shell have withdrawn from the group, because they understand the need for mechanisms like carbon pricing).

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Roundup: Congeniality by way of TV

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Maclean’s has a profile of the TVO series Political Blind Date, which pits politicians from rival parties – sometimes from the same level of government, sometimes from different provinces – in situations that help them understand each other’s viewpoints and helps to break down the partisanship barriers. And this is great – but what it was missing was any particular context as to why partisanship has grown to such toxic levels in the first place, and that has a lot to do with parliaments and legislatures rejigging their rules to be more “family friendly.”

Until the early 1990s, parliament used to hold evening sittings three nights a week. At six o’clock, the House would adjourn, and everyone would head upstairs to the Parliamentary Restaurant (aided by the fact that there was a dearth of restaurant options in the area, and liquor laws were such that you bought a bottle of booze that was kept behind the bar in the restaurant with your name on it). MPs would eat together, drink together, get to know one another across party lines, and it developed a sense of congeniality, and at eight o’clock, they’d head back to the Chamber and debate for a couple of more hours. The arrival of the Reform Party and the move to end evening sittings to be “family friendly” ended the congeniality and cross-party opportunities to just be parliamentarians together. With no impetus to break bread together, caucuses grew insular, and it became easier to treat other parties as the enemy rather than just having opposing points of view. Now, it’s rare that cross-party friendships occur unless there is committee travel that helps MPs bond, but that’s not very often. It’s disappointing that we are now relying on a TV show to build these relationships which used to be part and parcel of being an MP.

What’s particularly sad is that this kind of thing is now infecting the Senate, which used to be a far less partisan place than the House of Commons, and for which many senators have formed close and long-lasting friendships across the aisle. They still have more of the convivial culture that the Commons did, but that too is fading as the new Independents, eager to burn things down and declare anyone with partisan affiliation to be tainted and in some cases the enemy (particularly the Conservatives), it is polarizing the Chamber, and souring the mood therein. For a move that was supposed to lessen partisanship, Trudeau’s brilliant attempt to reform the Senate is doing the opposite – just one more unintended consequence that nobody bothered to consider, and all Canadians suffer as a result.

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Roundup: Testing names in the field

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Over the weekend, I got a call from a public opinion research company who was doing a survey on the Conservative leadership race. While many of the questions were fairly loaded or leading when it came to things like carbon pricing, and there were a lot of questions relating to just how progressive one thinks a future Conservative leader should be, I was most fascinated by the testing about potential candidates. There was an open-ended opportunity to provide a name that one might think could entice voters to switch to the Conservative party, followed by a list of names where one was invited to rank how much it would make you switch your vote for the Conservatives. That list: Gerard Deltell, former Bank of Canada Governor Mark Carney, Doug Ford, Jason Kenney, Jean Charest, Peter MacKay, Rona Ambrose, Lisa Raitt, Pierre Poilievre, Erin O’Toole, and Christy Clark. The inclusion of Carney is a head-scratcher considering that there was a Big Deal a few years ago about his apparently sniffing around the Liberals about a possible future leadership bid, while the fact that Michael Chong was left out despite his previous leadership run and the fact that he has stated he is seriously considering another go of it. So anyway, make of the list what you will, but those are the names that someone is testing.

Meanwhile, the first “official” declared candidate is Bryan Brulotte, a one-time Progressive Conservative staffer and failed candidate, who is pitching a negative income tax and “luxury tax” in lieu of a carbon price. Pierre Poilievre is also planning to announce his candidacy today, with John Baird chairing his campaign – though one wonders if that will conflict with his post-mortem report on how the party botched the election.

On that note, here’s Jess Morgan’s argument why he would be the absolute worst thing, while Paul Wells sizes up what we know of the race to date, and what kinds of choices the party faces in the process.

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Roundup: Building the Teck narrative

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While some of Jason Kenney’s usual mouthpieces and apologists start agitating for the Teck Frontier oilsands mine, it seems we need yet more reality checks about the project – particularly the economics. Because we have seen on more than one occasion where a project that wasn’t economically viable still achieves mythology status because certain people who think the idea of it is great will lie about its fate in order to suit their narratives *cough*Energy East*cough*. Anyway, here’s Andrew Leach with more.

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