Tag Archives: Trans Mountain

Roundup: Notwithstanding Ford

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It was a crazy day in the state of constitutional law yesterday, as an Ontario judge struck down Doug Ford’s bill to reduce the size of Toronto city council on some rather dubious grounds, and Doug Ford responded by insisting that he would invoke the Notwithstanding Clause to ensure it passed anyway, no matter that the issue by which he’s going to use the seldom-used provision on is of dubious merit, and has all of the appearances of enacting a political grudge (while all of the “reasonable” members of his Cabinet who were supposed to keep his worst impulses in check cheer him on). It’s a full-blown tire fire.

For starters, here’s a bit of context about just what the Notwithstanding Clause actually is, and some history of its use. But what is perhaps more alarming are the number of voices who are calling on the federal government to invoke the defunct constitutional provisions around disallowance as a way of thwarting Ford – and some of that has been fuelled by Toronto mayor John Tory meeting with prime minister Justin Trudeau last night. I can pretty much guarantee you that Trudeau, however, won’t touch the disallowance powers with a bargepole, because a) the powers are defunct for a reason (in that the issues that disallowance was used on are better dealt with through the courts), and b) it would stir up such a shitstorm of epic proportions that it would be difficult to contain the political damage, and I’m not sure that Trudeau is willing to expend that much political capital for something that is really not his political ambit, and he’s likely to win most of Toronto’s seats again regardless. But if you also look at the message that Trudeau’s minister of intergovernmental affairs, Dominic LeBlanc sent out, the not unsubtle language in there is that this is a fight for the political arena, and Ontario voters will have to deal with the mess that they created, which is pretty much how it should be. It’s not going to be easy if we’re having these kinds of issues three months in, but people shouldn’t expect another order of government to swoop in and save them. That’s not how democracy works.

Meanwhile, Emmett Macfarlane walks through what’s constitutionally dubious about the court ruling, while Andrew Coyne invokes some high dudgeon about use of the Notwithstanding Clause and Ford’s thuggish populist tactics. Chris Selley reminds us that so much of this episode is because Ford is all about chaos, and he brings more of it with these tactics. Susan Delacourt, rather chillingly, wonders which will be the next premier to decide that the Charter is inconvenient for their populist proposals. And University of Ottawa vice-dean of law Carissima Mathen both writes about why Ford’s comments are so offensive to our system of laws and governance, plus offers some more context about the Notwithstanding Clause in this video segment that you should watch.

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Roundup: Keeping up with vacancies

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Of all the places where the current government seems to have lapsed in their basic competencies, the most obvious tends to be their appointments process, and most especially when it comes to making judicial appointments. I’ll grant you that it’s more difficult than it can seem, especially when you are not only balancing the need for new judges with specific skillsets and linguistic capabilities (because you do need a certain number of minority-language speaking judges in every province), before you get to the issues of diversity, and the laudable goals of getting more women and visible minorities on the bench. What has made it more difficult is a process that relies on application rather than nomination, and this continues to be an ongoing saga. And while the courts have been adapting in the post-Jordandecision landscape by ensuring that criminal trials are getting precedence, it means that civil trials are falling to the wayside, and that has its own set of problems.

The Star delves into this problem, with a particular focus on Toronto-area vacancies, where they are chronically behind the number of judges they should have, and where the number that just got appointed will be offset by retirements within weeks. (As an aside, there is a push to get the complement of judges in the GTA increased further, because the total number has been deemed to be insufficient by the local bar). And what is perhaps most disconcerting here is that the minister keeps insisting that there needs to be broader culture change in the court system, not just more judges (when seriously, they’re looking for a full complement to start). I’m not sure that anyone disputes that culture change needs to happen, but the appointments are a pretty low bar that a government should be able to meet. And yet.

This having been said, there is some talk now that we may see more frequent appointments being made as cabinet starts meeting more regularly as Parliament resumes, given that Cabinet needs to approve these names for appointment. So maybe that will happen. But given the pace at which these things have happened, you’ll forgive my skepticism.

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Roundup: No magic wands or Senate public bills

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Prime minister Justin Trudeau went to Edmonton yesterday, and amidst his many media appearances, made a few key points – that getting approval for Trans Mountain was a priority, that while considerations like an appeal or legislation were part of the “all options on the table,” he also made the point that he won’t use “legislative tricks” to get it through, and made some pointed comments about the Conservatives demanding that he wave a magic wand that doesn’t really exist to get it built. If you listened to what he was saying through the layer of pabulum that wraps all of his statements, the core point was that they will comply with the Federal Court of Appeal decision and find the best way to fulfil the roadmap to approval laid out therein.

And oh, what legislative tricks are being proposed. In a particularly boneheaded move, Independent senator Doug Black insists that passing his Senate Public Bill on the Trans Mountain pipeline will declare it in the national interest, and poof, problem solved. (He also suggested giving the NEB four months to redo the portions of the assessment related to marine tanker traffic, when credible people who know these processes say that’s a six-month process, so score another win for Black’s credibility). The problem of course is that there is no actual legislative solution to the issue – the certification is a Cabinet decision, and while some people suggest retroactively changing the legislation to keep the NEB scoping as it was in the report Cabinet based its decision on that the courts found to be flawed, that’s a prospect that will only engender more litigation and will cause further delays – which is why Trudeau has been making the point that they need to ensure long-term solutions so that there will be investor confidence (as Suncor’s CEO announced that they would halt any expansion of their operations until there is a firm pipeline in the ground). Oh, and no piece of legislation can get around Section 35 obligations for the duty to consult, and while I can see some political merit in getting the Supreme Court to weigh in on what exactly constitutes meaningful consultation, it sounds an awful lot like passing the buck to them in order to take the heat off of a political issue, which they really don’t appreciate, and frankly they’ve ruled enough times that governments should have a good idea about what constitutes meaningful consultation.

To add fuel to this fire, Jason Kenney has started making pronouncements about how this recent Court decision is “fuelling separatism” in the province, which really irks me because this wasn’t some bureaucratic decision out of Ottawa – it’s about the rule of law (and if you really want to be technical, the bureaucratic decisions of the NEB came out of Calgary, which is where their headquarters are located). Kenney is being a bad actor and is holding out lighters for arsonists to grab, only to turn around and say “Who, me? I wasn’t inflaming anything! I’m just relaying what I hear,” which is a very dubious denial, and he’s playing with fire in order to score some cheap political points. Add to that, his agitating against the rule of law has darker authoritarian tones, as Colby Cosh pointed out last week, given that this notion about Canada not being “open for business” because the courts protect peoples’ rights. He should be called out on this, rather than being encouraged to keep making these points by credulous journalists (just like those same voices who let Senator Black go unchallenged in that piece).

Meanwhile, Andrew Coyne makes that very point – that this ruling is about the rule of law, and that’s a good thing. Too many actors in this are trying to muddy the waters or accuse the judiciary of some kind of activism that they’re not actually doing (while encouraging their own type of activism that would ignore the rule of law in favour of perceived economic benefit), which is a very worrying sign.

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Roundup: Setting a trap at committee

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The use of Commons committees for performative outrage continued in fine tradition yesterday as an emergency meeting of the natural resources committee was convened, during which the Conservatives demanded that the ministers of natural resource and finance appear before them no later than Thursday with “concrete” plans for the next steps of the Trans Mountain pipeline. This, of course, is a bit of a trap, and unrealistic for any government to comply with, and yet here we were. Why it’s a trap, of course, is that when they inevitably refused and the Liberals con the committee voted it down, Andrew Scheer and his caucus could rush to the media about how outrageous it was that Trudeau was avoiding accountability for his “failure” when their demand was utterly unreasonable in the first place. But why should facts or context matter?

Now, don’t get me wrong – I do think that these ministers should absolutely appear before committee, but not for another couple of weeks, until they’ve had time to digest the Federal Court of Appeal decision, at which time they should answer for why they considered the flawed NEB report, and why they did not engage in an adequate consultation process that would meet the requirements of Section 35 of the Constitution. You know – to hold them to account like a committee should.

As for next steps, there have been boneheaded demands for a “legislative solution” that people keep tossing around, and it’s so stupid – the FCA decision specifically stated that this is a Cabinet decision to approve the licence, so you can’t legislate it into existence, nor would trying to retroactively change the legislation that the NEB was operating under when it didn’t properly scope the marine safety aspect of their report be a feasible option, because it opens all manner of cans of worms. And you most especially can’t legislate away the duty to consult under Section 35, so good luck there. The Conservatives won’t say what they’d do, let alone do differently, while the NDP continue to demand that Trudeau cancel the expansion, and have been giving this ridiculous line that they wanted a Supreme Court reference in the first place and nobody listened to them. The problem was their reference was about jurisdiction, which this decision has nothing to do with, which makes their talking point especially specious.

Meanwhile, Chris Turner has a spectacular piece in Maclean’sabout the history of the pipeline and how it got to be the dumpster fire of an issue that it is today, and I’d encourage you to take the time to read it.

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Roundup: Effacing labour

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Yesterday having been Labour Day, there were a couple of topical stories out there – that the government’s look at updating the Canada Labour Codemay look at more measures to help with work-life balance, and that there are ideas on the table to look at taxing robots who replace workers with automation (though this seems fraught with all manner of complications). There is even talk about how this government has given the labour movement a seat at the table with trade negotiations (though there is some talk about how it’s all for show, and that they have little actual impact). But all of this having been said, I found the statements by the leaders to be interesting.

https://twitter.com/MinWorkDev/status/1036629441517182984

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Trudeau’s tweet was fairly standard, spoke about the labour movement, and the attached statement went into more detail about the achievements of the aforementioned labour movement. His minister of labour, Patty Hajdu, had a video message that talked about ways they are working on improving the current conditions, with a focus on harassment and coming pay equity legislation. Jagmeet Singh, true to NDP form, spoke about the focus on workers. But Andrew Scheer?

Nothing about the actual meaning of Labour Day. Nothing about the gains made by the labour movement, or the safety of workers, or the eight-hour work day, or weekends. Nope. It’s a holiday before getting “back to the grind.” Now, the previous government was no friend to labour, with vexatious legislation designed to make certification harder, impose onerous financial reporting requirements, the fight with public sector unions over sick days, and numerous back-to-work bills. But to not even mention the history of the movement and the gains made, whether it’s with occupational health and safety, weekends, pensions, anything? It smacks of pettiness, and of effacing history – you know, something he gets riled up when it’s a statue of Sir John A. Macdonald, but apparently not the Winnipeg General Strike.

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Roundup: Negotiating in good faith

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After another day of drama, there is no NAFTA deal, and talks have been suspended until Wednesday. And what drama there was, when off-the-record comments that Donald Trump made in an interview with Bloomberg were leaked to the Toronto Star, who published them, which showed Trump bragging that he wasn’t negotiating with Canada in good faith, and later in the day, he confirmed the remarks over Twitter with the note “at least Canada knows where I stand.” (Speculation now stands in that he deliberately leaked the comments). The revelation of the comments no doubt put a strain on the talks, but Chrystia Freeland later noted that she was negotiating with Robert Lighthizer, not Trump, and he was negotiating in good faith. So a little wedge in there, in any case. But in the end, Freeland insisted that we are close to a deal, so we’ll see once the long weekend is over and tempers cool a little.

https://twitter.com/InklessPW/status/1035582322668498944

Meanwhile, here’s a look at the issue of Chapter 19 – arbitration – that the Americans want scrapped even though it’s been as useful to them as it has been for us, so it’s a demand that makes no sense. Also, here are other things to look for when a deal is concluded, and what areas that we have made concessions on and what it means.

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Roundup: Trans Mountain tantrums

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The Federal Court of Appeal’s decision to quash the approval of the Trans Mountain pipeline expansion (temporarily, at least) – both because of an inadequately scoped NEB report around marine protection and because the government didn’t properly consult with Indigenous communities – caused no shortage of meltdowns and tantrums over all forms of media – with a dash of triumphalism from the environmentalists and some of those Indigenous communities. All of it, from both sides, is pretty much overreaction, but some of the reactions were ludicrous.

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The one reaction that was probably most ridiculous and unhelpful was that of Alberta premier Rachel Notley, who in a fit of pique, declared that she was pulling out of the federal climate framework until the pipeline was built, and made a list of nonsensical demands that will do absolutely nothing to get said pipeline built. Appealing it to the SCC? On what grounds (and delaying things another 18 months)? Recalling Parliament? To do what? Hold an angry take-note debate? Yes, this is the federal government’s mess, but none of this actually solves it. What will solve it is to follow the roadmap in the FCA judgment, which means reassessing the marine risks and doing proper consultations with those First Nations on their substantive issues. I get that Notley has to make a show of this, but none of this tantrum is constructive in the slightest, and worse yet, it likely undermines her own environmental agenda.

Meanwhile, Jason Markusoff notes that while the government owns this failure, it’s not as though the opposition has offered a solution that would have worked either. Trevor Tombe walks through the decision and what can be done to fix the problems identified therein, but notes there are costs to delays. Tyler Dawson looks at how the populist outrage over this move can start another round of Western alienation (in which, the actual facts of what’s going on won’t matter, because populism).

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Roundup: NAFTA theatrics

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Yesterday was big for NAFTA news, as the Americans and Mexicans resolved their bilateral differences, particularly around autos, and made progress on getting concessions on the American demands for a sunset clause. But, true to form, US President Donald Trump started spouting a bunch of nonsense about how Canada was on the sidelines, and if we didn’t accept a deal by Friday, he’d slap tariffs on our autos, and so on. The problem there – that he has no congressional authority to conclude a bilateral agreement without us (and indeed, outgoing Mexican president Enrique Peña Nieto kept saying that they were waiting for Canada to rejoin negotiations), so it’s a lot of bluster. Nevertheless, Chrystia Freeland cut short her diplomatic trip to Europe and is headed for Washington today, and trilateral talks will resume, and there’s likely to be a heavy focus on dairy as Trump has become fixated on it. This all having been said, have the Conservatives been pleased by the progress made? Funny you should ask.

First of all, the language in both is that it includes Trudeau’s name and the word “failure,” which is their narrative-building exercise (and Hamish Marshall can give them a cookie for sticking to it). But more importantly, as Kevin Carmichael notes, the Conservatives have been backing the government’s strategy to date on this. Of course, Andrew Scheer made a big deal during his big speech on Friday to insist that the Conservatives were going to be the adults in the room on foreign policy (which is risible considering the bulk of their record), but it also defies the reality of the situation. Even John Baird called bullshit on this line of reasoning – there was no reason for Canada to be part of those particular discussions, and this hasn’t really put us in a weakened position, and for all of the Conservatives’ sniggering about the labour chapter that Freeland has been advocating, wages were a big part of this deal that was struck with Mexico. (It’s also adorable that Erin O’Toole tries to make out that the Liberal strategy is all about domestic political posturing, which is exactly what he’s engaging in with his press release).

https://twitter.com/InklessPW/status/1034187012415340544

In the meantime, industry players in Canada are looking for more details, while Philippe Couillard is vowing not to accept any compromises that will affect Supply Management, so that could be fun while the Quebec election rolls along.

https://twitter.com/kevinmilligan/status/1034216416512172033

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Roundup: A “positive vision” full of falsehoods

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Andrew Scheer gave his first major speech to the party faithful at the Conservative convention in Halifax on Friday, and it was, in a word, meh. After telling the tale of his grandparents and parents struggling to get by, and establishing his “regular guy” credentials (despite the fact that his career suggests he’s been anything but), but from there, it was his usual litany of lies and nonsense talking points. “Conservatives would never leave a credit card bill to our children and grandchildren,” says the party that racked up hundreds of billions in debt during their term; vague assurances about the environment that would actually do nothing to address emissions while also maligning carbon taxes while claiming to understand them and yet demonstrating he doesn’t – or that if he does, he’ll simply lie about them. He went on a whole tangent about Sir John A Macdonald, and this whole bit about how activists were only targeting him because he’s a Conservative and not Liberal prime ministers who arguably did worse (and another lie was about how they weren’t going after Mackenzie King on the $50 banknote – he is being phased out in the next series, as Viola Desmond on the $10 banknote pushes the established prime ministers to higher denominations). He claimed he got to work with UK prime minister Theresa May on a post-Brexit trade deal – something that Trudeau actually did, given that he has no standing to do anything, and claimed that he would be the “adult in the room” in his planned trip to India (which, again, he has no diplomatic standing to do anything on, and that there is no “damage” for him to “repair.”) And his “positive vision” for Conservatives? That he won’t look back at history with shame, and he would have space for debate with viewpoints he disagreed with (this after being astonished that Trudeau would call an avowed racist a racist, characterizing it as a “smear.”) So…yeah. If your positive vision is to simply keep lying about issues, I’m having a hard time squaring that circle.

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Also at the convention, the party will send the resolution around abortion regulation to the full membership, while they voted down the attempt to make repealing gender identity legislation part of the policy book. Not debated was the resolution around ending supply management, which infuriated a number of delegates – some saying they felt that the debate was deliberately stifled, others that it’s emblematic of a party that doesn’t actually care about free market conservative ideas – and that this may drive them to Bernier’s camp.

Meanwhile, the Bernier fallout continues apace at the convention. While he appears to have zero caucus support, there is talk that he can theoretically get the bare minimum he needs to register a party with Elections Canada, and good news, Kevin O’Leary is thinking of supporting him, and he’s got an ally in Stephen Fletcher, whose nomination Scheer blocked. So there’s that. In the interim, Conservatives at the convention continue to mean girl him (to which Bernier says that’s typical of losers), and the anonymous sources with the behind-the-scenes drama have started spilling the tea, for what it’s worth.

In yet more reaction to events, Andrew Coyne notes that while Bernier’s criticism of the Conservative Party under Scheer rings true, Bernier’s planned party nevertheless still smacks of a vanity project. Colby Cosh notes that Bernier’s lack of intellectual hygiene in his veering into talk of diversity and immigration has corrupted his chance to attract concerned with economic issues to his nascent party. Chantal Hébert looks at the history of the Reform Party and it doesn’t compare favourably to Bernier’s record. Former Reform MP Monte Solberg has been there and done that, and he evaluates Bernier’s behaviour and performance in light of it. Terry Glavin thinks that Bernier did Scheer a favour, assuming he takes some of the swivel-eyed loons with him away from the Conservatives. Also, I was on Canada 2020’s /Thread podcast, talking Bernier and his ability to pull it off.

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Roundup: Those pesky gasoline prices

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While avoiding condemning Maxime Bernier’s choice of language and engagement (moving from just winking at white nationalists to now trying to delegitimize the media), Andrew Scheer has resumed his practice of shitposting misleading statistics memes over Twitter, and yesterday it was in relation to gasoline prices. Yes, Statistics Canada reported that the inflation rate in June was 3.0 percent, which is the Bank of Canada’s upper bound for their target, and yes, it was fuelled in part by gasoline prices. (Core inflation, stripped of volatile factors like gasoline, remains closer to the 2.0 percent target, so it’s not really anything to worry about). But why would those gasoline prices be higher? Hmm…

https://twitter.com/MikePMoffatt/status/1030574821543829504

https://twitter.com/MikePMoffatt/status/1030574941060517888

That’s right – the world price of oil has increased over the past year after its recovery from the price collapse nearly two years ago, and that’s an unambiguous good thing for provinces like Alberta, who rely on oil prices being on the higher side for their economies. Trying to cast this as a carbon tax issue – and that oh noes, carbon taxes will make this even worse – is a bit disingenuous considering how small of a fraction of the price that entails.

Meanwhile, with a number of voices (Jason Kenney and Scheer among them) calling for the revival of Energy East in light of the Saudi Arabia spat, energy economist Andrew Leach crunched the numbers on the economic case for that pipeline. Short version: there is no economic case. Stop trying to pretend there is one or blaming Justin Trudeau for its demise.

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