Diana Daunheimer on Supreme Court of Canada rulings on National Energy Board approvals: Clyde River & Line 9: “It’s a wash for our soiled SCC”

Comment by Diana Daunheimer

The rulings released yesterday demonstrate what happens to our Supreme Court, when fossil fuel interests are yanking puppet strings in the hallowed halls of justice.

The SCC ruled the NEB can consult for the Crown in both rulings, but clearly didn’t in one. A 50% failure rate, yet, our top justices are confident the NEB is capable of handling their responsibilities to consult.

Was it not scripted and predetermined that these rulings were chosen for appeal, ruled on unanimously and released on the same day, with such media attention? These represent two distinct cases of consultation by the NEB, however, the outcome for both remains the same, the SCC has set precedent for the right of the NEB to consult for the Crown. This was no victory for anyone but oil and gas interests and colluded regulators, across the nation.

It is plain and obvious that the NEB failed in Clyde, so the SCC killed the approval for an obscure Norwegian consortium for seismic testing, that was not going to occur anyway. In December of 2016, the Feds implemented a 5 year ban on oil and gas exploration operations in the Arctic, and depressed commodity pricing have ensured Arctic operations remain fiscally impossible. This token ruling has served only one purpose, to make the SCC look balanced and fair in their approach to First Nations concerns regarding consultation by the NEB, while not stepping on any Big Oil toes.

Of course, with the other ruling, Enbridge and the NEB, changed their spots, (it is Southern Ontario after all and not the far, excluded North) consulted appropriately and this approval holds. And it’s a wash for our soiled SCC. I see intention and playing favourites, anyone else?

If you have ever had the harrowing and humiliating experience of dealing with the NEB or the AER for oil and gas applications and approvals, there is one key element that has been missing from all the reporting and rulings, the term and notion of “directly affected.” Both regulators use this elusive and undefined term to categorize those that can file statements of concern or intervene in projects, yet, there is no definition or parameters for those that are directly affected. It’s completely arbitrary and in the case of the AER, you will be hard pressed to find any person in Alberta in which the AER deems directly affected, by any oil and gas operation.

In the event that regulators, more so the NEB, confer that a party is affected, they then revert to a risk based system of rationalizing approvals. You may be affected, but to a small degree or under an acceptable level of risk, therefore, you are not entitled to be an obstacle to approval. And to be candid, that is all that you are, a snag in the seamless art of rubber-stamping.

It’s nauseating that our Supreme Court lacks the intelligence and integrity to hold the NEB to account and has failed Canadians by armouring the NEB with these optical illusion rulings.

Justice has been bought and paid for again.

In light of this masquerade, one should be concerned for the litany of other cases regarding NEB approvals before the SCC. [Emphasis added]

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SCC blew big oil profit increases into multinational laps. Lap dancing a la supreme.

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Trans Mountain opposition still faces uphill battle after Supreme Court decisions, analysts say by Reid Southwick, July 27, 2017, Calgary Herald

The Supreme Court of Canada warned the national energy regulator it cannot waver from its duty to consult Indigenous communities, but observers don’t believe the upbraiding will derail approvals for a massive pipeline project facing legal opposition.

Canada’s highest court Wednesday released a pair of decisions on the National Energy Board’s consultations with Indigenous groups, one quashing an approval over a failure to consult, the other finding the regulator properly considered Indigenous impacts on a separate project.

The decisions reaffirmed the role of Indigenous rights in energy projects as companies seek large pipelines to transport western Canadian oil and gas to markets.

Grand Chief Stewart Phillip of the Union of BC Indian Chiefs said the decisions “represent another day at the office in the long, protracted and ongoing evolution of our legal battles with the predations of the oil and gas industries.”

“Clearly, substantive and adequate consultations with Indigenous peoples is absolutely essential as it relates to resource development projects in our territories,” Phillip said in an email.

Kinder Morgan Canada is facing an omnibus legal challenge from 30 parties seeking to quash approvals for its $7.4-billion Trans Mountain expansion from Edmonton to Burnaby, B.C., but analysts believe the Indigenous and environmental opposition still faces an uphill battle.

“The Crown clearly did a better job of consultation in this case than it did in Northern Gateway,” said Nigel Bankes, a natural resources law professor at the University of Calgary, referring to the quashed Enbridge project.

The Supreme Court, Bankes said, has been “quite demanding” in laying out the legal threshold of adequate consultations with Indigenous communities.

“That’s guidance on a go-forward basis, but I don’t think there’s anything there that is going to have a significant impact on the Trans Mountain litigation,” he said.

The Supreme Court scrapped the NEB’s approval of seismic testing in the Inuit community of Clyde River in Nunavut, ruling the regulator considered environmental concerns, but not treaty rights.

Among a litany of failures, the court said there were several cases where project proponents didn’t provide sufficient answers to basic questions about the impacts of seismic testing. The vast majority of one document purported to answer these questions was not translated to Inuit language.

“Where the Crown’s duty to consult remains unfulfilled, the NEB must withhold project approval,” the ruling stated. “Where the NEB fails to do so, its approval decision should be quashed on judicial review.”

Clyde River lawyer Nader Hasan said the ruling means the NEB will have a harder time in the future approving similar projects that “have the potential to prove catastrophic for the Inuit people.”

The NEB said in a statement it is reviewing the decision, but “it’s too early to say if this ruling will affect the detailed route process” of the Trans Mountain expansion.

In a separate decision, the Supreme Court found the regulator took all of the proper steps to hear Indigenous voices when considering Enbridge’s proposal to reverse the flow of part of the company’s Line 9 that runs from Ontario to Quebec.

It found the NEB provided the affected Indigenous community, Chippewas of the Thames, with enough opportunity to participate in the decision-making process, and had properly found the negative consequences were “minimal and could be mitigated.”

Nick Schultz, general counsel for the Canadian Association of Petroleum Producers, said the two decisions provide a glaring contrast of “what not to do” and “how to do it right” when consulting with Indigenous communities.

“The Trans Mountain process is very much the way the NEB does oil pipeline hearings, which is very much the way they did Line 9,” Schultz said, noting Kinder Morgan is preparing for construction of the long-awaited mega-project.

“Now we can put the lawyers away and get the construction crews out there.”

The legal fight isn’t over, however. The Union of BC Indian Chiefs said Indigenous leaders continue to reject the idea that the federal government can “farm out the legal duty of consultation to industry through the NEB.”

“Therefore the long, bitter and protracted legal battle shall continue,” Phillip said.

Still, Bankes doesn’t believe there are any recourses available to opposition groups on Trans Mountain, noting the federal government conducted its own consultation with environmentalists and Indigenous communities, separate from the NEB’s process.

The NDP government in B.C. had previously vowed to “employ every tool available” to stop the pipeline, but B.C. attorney general David Eby recently said the province would not artificially delay permits for the pipeline because “we’ll be sued.”

“Now, we’re finding out that the tool box that they talked about might be empty,” said energy analyst Dirk Lever.

“There are many aspects to this that are going to be very hard to predict, but you can see that some tides are changing.”

With files from The Canadian Press [Emphasis added]

SCC resource decisions do not put blind faith in the NEB by Nader Hasan, July 27, 2017, Special to The Globe and Mail

Nader Hasan is a partner at Stockwoods LLP in Toronto. He was counsel to Clyde River at the Supreme Court of Canada.

On Wednesday, the Supreme Court of Canada delivered two landmark rulings on the Crown’s duty to consult and accommodate Indigenous peoples.

Commentators around the country are asking what these decisions mean for government, industry and Indigenous groups. Many have heralded the Clyde River decision as a victory for Indigenous rights. By contrast, some have read the decisions as industry-friendly and argue that they offer a “blueprint” on how to push pipelines and other projects through the National Energy Board (NEB) or other regulatory agencies.

Ultimately, it will be up to the courts to determine how these rulings apply to future cases, but it is important to understand what the rulings did and did not say. It would be dangerous and unhelpful if government and industry interpreted these rulings to mean the NEB process is good enough – as some outlets have suggested. Blind reliance on the NEB’s process is why the government was on the losing end of the Clyde River case.

It would also be wrong to suggest that the NEB alone can discharge the duty to consult Indigenous peoples. That duty continues to rest with the Crown. What the Supreme Court held is that the Crown “may rely on steps taken by a regulatory agency,” [DANGEROUS DEFECTION OF CROWN RESPONSIBILITY BY THE SCC, like it saying in Ernst vs AER, that governments can choose to legislate themselves above Canada’s top law in the country, the Charter of Rights and Freedoms] but the “ultimate responsibility” for ensuring that consultation is adequate always rests with the Crown. [WHAT DO YOU THINK THE CORPORATE CONTROLLED CROWN AND COURTS WILL DO IN FUTURE?] And where the regulatory process being relied upon does not achieve adequate consultation or accommodation, the Crown “must take further measures to meet its duty.”

Practically speaking, this means the government must carefully scrutinize each and every regulatory process and determine what it can rely on and what else it needs to do to discharge its duty-to-consult obligations.

If, for example, the NEB is already holding an evidentiary hearing into the environmental impact of a proposed project on fish stocks, then the Crown need not conduct a separate evidentiary hearing into the same issue. It can rely on that part of the NEB process. [Relying on an industry controlled, corrupt regulator and process is not fulfilling the Crown’s duty] But consultation and accommodation may require more than an evidentiary hearing, particularly where the potential impact on Indigenous peoples’ rights is severe. Consultation may require negotiation on a nation-to-nation level. It may require that Indigenous groups be afforded not only the right to participate in the process but also a say in the design of the process. Tribunals such as the NEB can assist the Crown in discharging certain parts of consultation. [The SCC set a dreadfully slippery dance that prefers industry] Other aspects will require direct engagement from the Crown.

Finally, and perhaps most importantly, we must appreciate the limits of a court ruling – even a ruling from the highest court in the land. Courts do not tell governments what they ought to do as a matter of best practice and policy. The Constitution operates as a floor – not as a ceiling – and courts will intervene if government conduct falls below the minimum threshold that the Constitution requires. That is what happened in the Clyde River case.

But Canada should not be satisfied with doing the bare minimum. Canada should strive to be better. You don’t achieve reconciliation by doing the bare minimum. This may be what the Supreme Court meant when it said that “[t]rue reconciliation is rarely, if ever, achieved in courtrooms.”

[When has Canada or any province done “better” than the lowest of bare minimums for ordinary people when it comes to impacts and lies by the oil and gas industry? Canada serves rape and pillage, as do Canada’s courts and regulators.]

Reconciliation will require respecting international law and Canada’s international commitments. Prime Minister Justin Trudeau should finally put his money where his mouth is and introduce legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples, including the doctrine of free, prior and informed consent. Consent is not a “veto.” It is an acknowledgment that for Indigenous peoples’ rights to be meaningful, they must entail corollary obligations on government. Consent will not be required in every case, but where the impact on Indigenous rights is substantial, nothing short of consent will respect those rights or achieve reconciliation.

The Trudeau government can choose to treat these Supreme Court decisions as a blueprint for helping industry through the regulatory process. [Wanna bet that’s what Trudeau and all future governments choose?] Or it can embrace the spirit of these decisions, which urge the government to pursue a path of reconciliation with Canada’s Indigenous peoples. [HA! As if that will ever happen in Canada with CAPP, NEB, oil and gas companies and AER ruling all roosts] We stand at a fork in the road of Canadian history. Let’s take the path of reconciliation. For real this time. [Emphasis added]

From the comments:

HabFan410
2 hours ago
Congratulations to the author and representative for the people at Clyde River on his successful argument in that case before the SCC. But your reach has over-extended your grasp in suggesting that, where the letter of the law does not provide a veto, then the spirit of “reconciliation” must grant it. I call BS. The SCC’s decision favouring the Line 9 pipeline proposal confirms there are limits to the consultation process which negate any assumed veto rights.
… Let’s not start muddying the waters the very next day with exaggerated interpretations about SCC decisions being “floors, not ceilings” and assumptions that veto power actually exists when it doesn’t.

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