‘Defying Canada’

“Canadian aboriginal groups and their allies said…they ‘have the power’ to block proposed oil pipelines on land where they have ‘proven title’, dismissing comments by Prime Minister Justin Trudeau {and the Supreme Court} , who said no community has a veto. 

“Trudeau told ‘Reuters’…that unanimous consent is not needed for the government to approve pipeline projects to bring Canadian oil to market, even as he pledged consultation with aboriginals and environmentalists who oppose projects. 

“At the heart of the conflict are the ‘rights’ of ‘aboriginal people’, particularly in British Columbia, where many groups never signed treaties and a 2014 Supreme Court decision made clear that in cases where aboriginal title is proven, “consent” is required before major projects can go ahead.

“The record of the federal government where consultation is concerned is abysmal at best,” 

said Ernie Crey, chief of Cheam ‘First Nation’ {a ‘nation’ of 473 people} east of Vancouver, adding that it is up to the courts to decide on vetoes.

“Crey told ‘Reuters’ his community is not opposed to development, but they want their ‘rights’ and needs to be treated with the same gravitas as those of other Canadians.

“That concern was echoed by Grand Chief Stewart Phillip of the ‘Union of B.C. Indian Chiefs’, who said Trudeau should keep in mind that the economic considerations of the oil industry do not outweigh ‘aboriginal rights’.

“Well, clearly nothing has changed on our side of the equation. The answer is still ‘no’,”

he told ‘Reuters’ when asked about Trudeau’s comments.

“The dispute sets the stage for a battle over key energy infrastructure projects aimed at bringing oil products from the landlocked province of Alberta to tidewater, principally through British Columbia to the Pacific Coast, though other routes have been proposed.

“Well, communities grant permission. Does that mean you have to have unanimous support from every community? Absolutely not,”

Trudeau told ‘Reuters’ on Thursday, saying the decision would be made in the best interest of the country “writ large.”

‘The One Who Keeps Trying’ and friend (Photo--Jeff McIntosh-CP)
‘The One Who Keeps Trying’ and friend (Photo–Jeff McIntosh-CP)

“Trudeau faces intense pressure from Canada’s oil sands producers, already hard hit by the plunge in crude prices, and increasingly desperate for new pipelines to get product to international markets, where it can fetch a higher price.

“Building those pipelines has proven difficult. Enbridge Inc.’s ‘Northern Gateway’ pipeline was approved in 2014, but has not yet been built, delayed by legal and {illegal} social actions. Kinder Morgan’s ‘Trans Mountain’ expansion, conditionally approved by Canada’s energy regulator on Thursday, appears set for a similar fate.

“Some have interpreted “consent” as a de facto veto. But legal experts, while differing on the exact applications of the rule, agree it is not a guaranteed ban.

“Robin Junger, a Vancouver lawyer who specializes in ‘aboriginal law’, said that even in cases where ‘aboriginal title’ has been proven, the federal government still has final say on whether a project goes ahead.

“THE LAW IS ABSOLUTELY CLEAR ON THIS, the Supreme Court of Canada has said so many times: Consultation is important, it has to be done in earnest and meaningfully, but IT DOESN’T PROVIDE A VETO,” he said.

“But other lawyers point to wording that says while government is allowed “justifiable infringement” on aboriginal title lands, development must not deprive future generations from exercising their rights to that land.

“In other words, if there were a dilbit (diluted bitumen oil) spill, would future generations be deprived their title lands; if yes, then you have an effective veto,”

said Merle Alexander, another Vancouver lawyer specializing in ‘aboriginal law’.”

{Nonsense. The law isn’t about what MIGHT happen some day – ANYTHING might happen some day…}

–‘Canada’s aboriginals tell Trudeau they can block pipelines’,
JULIE GORDON, Reuters, May 20, 2016 {CAPS added}

http://www.reuters.com/article/us-canada-trudeau-aboriginal-idUSKCN0YB2R7Power of Veto - (Big Brother Canada Wiki)“The province has been silent on important aspects of the ‘Tsilhqot’in’ decision. Most discussion has focused solely on the court’s declaration of ‘aboriginal title’ and the powers and authority such a declaration provides to a ‘First Nations’.

“Not enough has been said about how the Tsilhqot’in decision emphasizes the rights and powers of the province — of particular importance is THE RIGHT TO INFRINGE ABORIGINAL TITLE WHERE JUSTIFIED IN THE PUBLIC INTEREST, and the court’s unequivocal finding that PROVINCIAL LAW APPLIES IN TITLE AND TERRITORIAL AREAS…

“The courts have been clear that ‘First Nations’ DO NOT HOLD A VETO over projects or developments even where aboriginal title is proven, let alone on asserted territorial lands where overriding public interest can be demonstrated and an infringement of title can be justified according to a long-established legal principles…

“An example of unmanaged expectations are ‘First Nations’ so-far uncontested assertion that their own mining policies and laws will apply in their asserted territories — rather than the province’s — and ongoing demands for ‘Impact Benefit Agreements’, payments to consult or to even access lands (among other things). NONE OF THIS seems to have a firm foundation in the body of ‘aboriginal title’ decisions by the courts. June26,2014
“A body of jurisprudence, including the recent Tsilhqot’in decision of the Supreme Court of Canada (SCC), clarifies ‘First Nations’ title rights.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do

“They provide a framework for government, industry and ‘First Nations’ to address these rights. Such clarifications should increase certainty for investors and the public.

“‘FIRST NATIONS’, at times, APPEAR TO BE THE ONLY PROMINENT VOICE DISCUSSING THE IMPLICATIONS OF COURT DECISIONS AFFECTING ‘ABORIGINAL TITLE’. They also appear, at times, to be further ASSERTING ‘ABORIGINAL TITLE’ IN WAYS THAT ADDRESS NEITHER THE LETTER NOR THE SPIRIT OF THE FULL COURT DECISIONS and the body of jurisprudence.

“THE PROVINCE HAS BEEN SILENT on important aspects of the Tsilhqot’in decision. Most discussion has focused solely on the court’s declaration of ‘aboriginal title’ and the powers and authority such a declaration provides to a ‘First Nation’.

“Not enough has been said about how the ‘Tsilhqot’in’ decision emphasizes THE RIGHTS AND POWERS OF THE PROVINCE, of particular importance is THE RIGHT TO INFRINGE ‘ABORIGINAL TITLE’ WHERE JUSTIFIED IN THE PUBLIC INTEREST, and THE COURT’S UNEQUIVOCAL FINDING THAT PROVINCIAL LAW APPLIES IN ‘TITLE’ AND ‘TERRITORIAL’ AREAS.

“In 1990, this Court held that s. 35 of the ‘Constitution Act, 1982 constitutionally protected all ‘aboriginal rights’ that had not been extinguished prior to April 17, 1982, and imposed a ‘fiduciary duty’ on the Crown with respect to those rights: ‘R. v. Sparrow, [1990] 1 S.C.R. 1075’.

 

“The Court held that under s. 35, legislation can infringe rights protected by s. 35 only if it passes a two-step justification analysis: the legislation must further a “compelling and substantial” purpose and account for the “priority” of the infringed aboriginal interest under the fiduciary obligation imposed on the Crown (pp. 1113-19).”
(SUPREME COURT OF CANADA, Citation: ‘Tsilhqot’in ‘Nation’ v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256’ Date: 20140626 ; Docket: 34986, Paragraph 13)

 

“Once aboriginal title is established, s. 35 of the ‘Constitution Act, 1982’ permits incursions on it only with the consent of the aboriginal group, or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s ‘fiduciary duty’ to the aboriginal group; for purposes of determining the validity of provincial legislative incursions on lands held under ‘aboriginal title’, this framework displaces the doctrine of interjurisdictional immunity.” {Another case of two-tiered justice’ in Canada…}
(SUPREME COURT OF CANADA, Citation: ‘Tsilhqot’in ‘Nation’ v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256’ Date: 20140626 ; Docket: 34986, Paragraph 2)

“Balanced discussion of the ‘rights’ accorded by the SCC {The Supreme Court should not be granting ‘rights’…} both to the province and to ‘First Nations’ is essential. Not managing expectations in regard to public interest and ‘First Nations’ ‘rights’ can plant new seeds of discord, as well as create uncertainty for investors and the public on how the province will represent the interests of all British Columbians.BackOffCanada
“An example of unmanaged expectations are ‘FIRST NATIONS’ SO-FAR UNCONTESTED ASSERTION THAT THEIR OWN MINING POLICIES AND LAWS WILL APPLY IN THEIR ASSERTED ‘TERRITORIES’ — RATHER THAN THE PROVINCE’S — and ongoing demands for ‘Impact Benefit Agreements’, payments to consult or to even access lands (among other things). NONE OF THIS SEEMS TO HAVE A FIRM FOUNDATION IN THE BODY OF ‘ABORIGINAL TITLE’ DECISIONS BY THE COURTS. The province is the only appropriate body to address this.

“THE COURTS HAVE BEEN CLEAR THAT ‘FIRST NATIONS’ DO NOT HOLD A VETO over projects or developments EVEN WHERE ‘ABORIGINAL TITLE’ IS PROVEN, let alone on asserted territorial lands where overriding public interest can be demonstrated and an infringement of title can be justified according to a long-established legal principles:

“–In the ‘Delgamuukw’ decision, the SCC confirmed that infringements of ‘aboriginal title’ can be justified under s. 35 of the ‘Constitution Act, 1982’ pursuant to the ‘Sparrow’ test, and described this as a “necessary part of the reconciliation of [A]boriginal societies with the broader political community of which they are part” (at para. 161), quoting ‘R. v. Gladstone, [1996] 2 S.C.R. 723’, at para. 73. While ‘Sparrow’ had spoken of priority of ‘aboriginal rights’ infringed by regulations over ‘non-aboriginal’ interests, ‘Delgamuukw’ articulated the “different” (at para. 168) approach of involvement of aboriginal peoples — varying depending on the severity of the infringement — in decisions taken with respect to their lands.
(SUPREME COURT OF CANADA, Citation: ‘Tsilhqot’in ‘Nation’ v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256’ Date: 20140626 ; Docket: 34986, Paragraph 16)

“–In the wake of ‘Gladstone’, THE RANGE OF LEGISLATIVE OBJECTIVES THAT CAN JUSTIFY THE INFRINGEMENT OF ‘ABORIGINAL TITLE’ IS FAIRLY BROAD. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by aboriginal peoples with the assertion of Crown sovereignty, which entails the recognition that “distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community” (at para. 73).

“In my opinion, THE DEVELOPMENT OF AGRICULTURE, FORESTRY, MINING AND HYDROELECTRIC POWER, THE GENERAL ECONOMIC DEVELOPMENT OF THE INTERIOR OF BRITISH COLUMBIA, PROTECTION OF THE ENVIRONMENT AND ENDANGERED SPECIES, THE BUILDING OF INFRASTRUCTURE AND THE SETTLEMENT OF FOREIGN POPULATIONS to support those aims, ARE THE KINDS OF OBJECTIVES THAT are consistent with this purpose and, in principle, CAN JUSTIFY THE INFRINGEMENT OF ‘ABORIGINAL TITLE’. Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis.” {Court cases forever…}
(SUPREME COURT OF CANADA, Citation: ‘Tsilhqot’in ‘Nation’ v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256’ Date: 20140626 ; Docket: 34986, Paragraph 83)

“Constructive engagement is important, which is why the province’s silence on the issue is such a concern.

“The implications of this silence are clear. For example, international investors are being advised to avoid investing in B.C. because of the uncertainties surrounding these issues…ERBLScaringOffInvestment600x600
“The Chamber recommends

‘That the Provincial Government
*acknowledge and accept that the courts have given the province the right to uphold public interest rights where justified in the public interest, in accordance with long-established legal principles in matters of ‘aboriginal title’;

*develop a plan and institutional process for how to uphold public interest rights in regard to ‘First Nations’ interest;

*pro-actively manage public interest expectations in regard to ‘First Nations’ and the appropriate guidance provided by the jurisprudence, and

*publicly state how it will use the public interest rights and obligations afforded it by the courts with respect to ‘aboriginal title’ and land claims in asserted ‘territories’.”

–‘Representing the public interest regarding ‘First Nations’ Title (2015)’,
B.C. Chamber of Commerce {CAPS added}

http://www.bcchamber.org/policies/representing-public-interest-regarding-first-nations-title-2015

http://www.bcchamber.org/sites/default/files/REPRESENTING%20THE%20PUBLIC%20INTEREST%20REGARDING%20FIRST%20NATIONS%20TITLE%20%282015%29%20-%20For%20Download.pdf ERBLShakedown600x600
See also:

‘Shakedown’ (Northern Superior Sues Ontario over ‘Consult and Accommodate’) {September 21, 2015}: https://endracebasedlaw.wordpress.com/2015/09/21/shakedown

‘Exploration Company Pushes Back’ {October 6, 2015}: https://endracebasedlaw.wordpress.com/2015/10/06/exploration-company-pushes-back/

‘All Is Not Well In B.C.’ (‘Parallel Governments’ and Property Rights) {September 19, 2015}: https://endracebasedlaw.wordpress.com/2015/09/19/all-is-not-well-in-b-c/

‘The Province Will Have No More Say’ {January 9, 2015}:
https://www.facebook.com/ENDRACEBASEDLAW/photos/a.336196793149227.59519.332982123470694/584262041676033/?type=1

And:
‘The Emasculation of Crown Sovereignty’:
http://nodifference.ca/essay/chap21

‘Dancing with Danegeld’:
http://nodifference.ca/essay/chap25

‘The Solid Gold Resources Case: Ontario’s Sovereignty Giveaway’:
http://nodifference.ca/essay/chap31

‘The Imperative of Sole Crown Authority’:
http://nodifference.ca/essay/chap30/chap33
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