Saturday, May 25, 2019

British Columbia will Appeal Crt. Decision it CANNOT regulate flow of bitumen through Transmountain Pipeline

Supreme Court of Canada In Session


The headlines in yesterday's newz looked dire for BC.  The ROC [Rest of Canada] no doubt chortled in happiness.....as BC's own Appeals Court ruled against the province's attempt to control oil tanker traffic through its narrow, dangerous and environmentally fragile waters.

Burrard Inlet is just a few kilometers from my home
The Transmountain pipline port is located 
on the coast near those two blue gas towers
in the centre of the photo

Please read the following snippets from CTV news below and I will have more comments to follow:


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Court rules B.C. can't limit oil shipments in major blow for pipeline fight

VANCOUVER -- British Columbia lost the largest tool in its toolbox to halt the Trans Mountain pipeline expansion with a court decision Friday that concluded it can't restrict oil shipments through its borders.

The unanimous ruling from the B.C. Court of Appeal represented a major win for the project, which the federal government and Alberta see as crucial to getting more oilsands crude to overseas markets.

….

Alberta Premier Jason Kenney said the decision is an occasion for "real hope" for hard-working people and the project will allow his province to realize a fair price for its resources and create new jobs.


In light of the court's decision, we hope that the B.C. government will respect the rule of law and end its campaign of obstruction," he said.


Kenney also said the expansion could provide much-needed relief at B.C. pumps. Premier John Horgan has disputed that the project would ease sky-high gas prices, noting its purpose is to transport heavy oil for shipment overseas...."

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Greencrow says:  Albertan Premier Kenney and many other Canadians just don't get it.  Even though Kenney basically admits that British Columbians are being punished at the gas pump for wanting to save their environment...he thinks we can be bought or bullied off our position of wanting to save our province.  Perhaps Kenny and Canadians even think this is the end of the matter.  Very wishful thinking, IMO.  Please read the subsequent newz story from the CBC regarding BC's intention to appeal the decision to the Supreme Court of Canada.  I will have comments to follow:


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B.C. to appeal decision over control of Trans Mountain pipeline oil to Canada's top court
'We believe we have the right and authority … to regulate harmful substances through B.C.,' AG David Eby says

"There's always been a tug and pull in our federation between the supremacy of federal jurisdiction versus that of provincial jurisdiction. And when comes to the environment, this is an untested area," he said.

Environmental charity Ecojustice, which was an intervener in the case, also expressed disappointment in the ruling.

…...

"The issue at the heart of this case goes far beyond a single pipeline project. What was at stake is the B.C. government's ability to step in and enact laws that will better protect communities and the environment when federal measures fall short." said Ecojustic lawyer Kegan Pepper-Smith.

"The Supreme Court of Canada has overturned unanimous decisions by the B.C. Court of Appeal in the past," he said. "For reference questions like this, provinces have the right to appeal."

According to Section 36 of the Supreme Court Act, the appeal is automatic and does not require leave.

When asked about the financial price tag of the appeal, Eby said it would be a "fraction of a fraction of the cost of a catastrophic diluted bitumen spill."

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Greencrow says:  When I was a young person in my 20's I worked as an administrative assistant at the University of Western Ontario Faculty of Law in London, Ontario.  Back in the heady days of the late '60's and early '70's, The Josephine Spencer Niblett Faculty of Law, or "The Niblett" as it was affectionately referred to, was a catalyst of social upheavals of the time. The drug revolution [LSD and marijuana], the anti war movement [against the Viet Nam War] and not least was the "environmental movement".  The first time I ever heard the words "ecology" and "environment", they were spoken to me by a twenty-eight year old law professor.  He had done his masters in Berkley and came to the school all decked out in bell-bottom jeans, granny glasses, long hair and beard.  Those were heady days indeed.

Another movement that was shaking society at the time was the emergence of "aboriginal law".  We had several First Nations law students attending the school.  They were given special permission to take the courses --without having acquired the necessary academic credentials as the other students.  This was an early effort to promote inclusion in the legal arena.

Anyhooo.  One of the biggest legal decisions that was on everybody's mind was the Delgamuukw decision.  Although this decision was not handed down until 1997, it was beginning to wend its way through the court system in the late '60's and early '70's.  Everyone was saying that this decision would give First Nations constitutional rights that would change Canada forever.  Please read the following summation of the Delgamuukw Decision and I will have more comments to follow: 


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Delgamuukw Decision of the Supreme Court of Canada, 1997

“The Delgamuukw case (1997) concerned the definition, the content and the extent of aboriginal title. The Supreme Court observed that aboriginal title constituted an ancestral right protected by Section 35(1) of the Constitution Act, 1982. Aboriginal title is a right relating to land sui generis, held communally and distinct from other ancestral rights. Aboriginal title is, therefore, in substance, a right to territory and encompasses exclusive use and occupation. The native people concerned must tender evidence of the existence of aboriginal title in respect of the following requirements: “(i) they must have occupied the territory before the declaration of sovereignty; (ii) if present occupation is invoked as evidence of occupation before sovereignty, there must be a continuity between present occupation and occupation before the declaration of sovereignty; (iii) at the time of declaration of sovereignty, this occupation must have been exclusive.” It is not necessary to prove a perfect continuity; the demonstration of a substantial maintenance of the bond between the people concerned and the territory is sufficient. In this respect the Supreme Court held that oral evidence could be admitted as proof. The court also ruled that aboriginal lands could not be used in a manner that was inconsistent with aboriginal title: if aboriginals wished to use the lands in ways that aboriginal title did not permit, then the lands must be surrendered. Aboriginal title cannot be transferred to anyone other than the Crown.”

….and from the Canadian Encyclopedia

The Delgamuukw case (1997) (also known as Delgamuukw v. British Columbia) concerned the definition, the content and the extent of Aboriginal title (i.e., ownership of traditional lands). The Supreme Court of Canada observed that Aboriginal title constituted an ancestral right protected by section 35(1) of the Constitution Act, 1982. Influenced by the Calder case (1973), the ruling in the Delgamuukw case had an impact on other court cases about Aboriginal rights and title, including in the Tsilhqot’in case (2014). 

Supreme Court of Canada Decision


Following an abandoned attempt at treaty negotiations with the province of British Columbia, the claimants decided to appeal to the Supreme Court of Canada, which heard their case on 16 and 17 June 1997. Six months later, on 11 December 1997, the court’s ruling addressed a number of issues, including the extinguishment of Aboriginal title, the use of oral history in testimony and the content and extent of Aboriginal title.

The court found that the provincial government had no right to extinguish the Indigenous peoples’ rights to their ancestral territories. Reaffirming the decision in the Van der Peet case (1996), the court deemed that oral history is an important type of evidence that courts must treat as equal to other types of evidence.

The court also clarified the content and definition of Aboriginal title, as previously explored in the Calder case (1973). It defined Aboriginal title as Indigenous peoples’ exclusive right to the land, and affirmed that Aboriginal title is recognized as an “existing aboriginal right” in section 35 of the Constitution Act, 1982.

However, the court also acknowledged some limitations with Aboriginal title. Traditional lands cannot be used in a manner that is “irreconcilable with the nature of the claimants’ attachment to those lands.” For example, a nation with ancestral claims to fishing rights may not use the waters in a way that would destroy its value for fishing. If Indigenous people wished to use the lands in ways that Aboriginal title did not permit, then the lands must be surrendered. Aboriginal title cannot be transferred to anyone other than the Crown.

In order to clarify how Indigenous nations must demonstrate Aboriginal title, the court created a test based on three key points: sufficient, continuous and exclusive evidence of territorial occupation.

Delgamuukw Test: Demonstrating Aboriginal Title

According to the Delgamuukw ruling, Indigenous people seeking to prove their title to ancestral territories must provide evidence of the existence of Aboriginal title in respect of the following requirements:
The Indigenous nation must have occupied the territory before the declaration of sovereignty. This means that the Indigenous nation must have demonstrated to other First Nations and to Europeans that it clearly used and occupied the land. This is different than the ruling in the Van der Peet case (1996), which established that Indigenous peoples need to prove that their traditional rights were integral to their culture when Europeans arrived. In the Delgamuukw test, it is sufficient to say that occupied land was integral to their culture at the time of contact.

If present occupation is invoked as evidence of occupation before sovereignty, there must be a continuity between present occupation and occupation before the declaration of sovereignty. In other words, there must be evidence of a continuous ownership of the land. However, it is not necessary to prove a perfect continuity; the demonstration of a substantial maintenance of the bond between the people and the territory is sufficient. In this respect, the Supreme Court held that oral evidence could be admitted as proof.

At the time of declaration of sovereignty, this occupation must have been exclusive. This means that the land had to have been the exclusive territory of an Indigenous nation, although they could have shared it with another Indigenous nation.

Influence and Impact

The Delgamuukw case is an important one in Canadian law because it provides information about the definition and content of Aboriginal title. The ruling also clarified the government’s duty to consult with Indigenous peoples, and affirmed the legal validity of oral history. After the case, other First Nations, most notably the Tsilhqot’in people in 2014, used the Delgamuukw decision in their own land claims cases.

Despite the importance of the case, treaty negotiations between the two nations, the province and the federal government continue. Various companies operate in their traditional territories without permission, and there is division within the community over participation in large energy projects, such as the LNG pipeline that is planned to run through traditional lands. In December 2018, Wet’suwet’en people prevented some Coastal GasLink representatives (whose pipeline is supposed to transport natural gas to the scheduled LNG facility) from passing through Indigenous territory (see Pipelines in Canada). The RCMP arrested 14 people associated with this incident on 7 January 2019. Three days later, Wet'suwet'en chiefs and the RCMP reached a deal to allow road access for pipeline workers. Therefore, while the Delgamuukw case raised and clarified issues relating to Aboriginal title, it did not outright resolve them.
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Greencrow concludes.  British Columbians always knew that their case for control of their environment and coastline was going to end up in the Supreme Court of Canada.  Anyone with half a brain would have figured that out.  IMO, British Columbia has an extremely solid case in the Supreme Court of Canada.  The Delgamuukw precedent is very clear on aboriginal rights being embedded in the Canadian Constitution.

The irony [there are many ironies in this case] is, that for le Dauphin to get his Transmountain Pipeline through British Columbian First Nations territories...and for him to get his 7X heavier oil traffic tankers plying the coastal waters of BC...he will have to trash The Constitution Act of 1982...the legacy of his father, Trudeau Sr.

Good luck with that one.

Warning Sign

4 comments:

Anonymous said...

Gharuda , sends 3 bows to Greencrow for standing for up for Native Title.
Brahma protects our Peoples and Lands.

greencrow said...

Hi Gharuda:

I stand up for indigenous rights and the rule of law, wherever they're under threat in the world.

Reading between the lines said...

I do believe that Trudeau and minions stepped into something that they have no idea how to handle.Riding rough shod over Aboriginal rights is one of them especially when precedent has been set.
Not a vote gathering situation in my view just another sign of juvenile leadership.

Gharuda said...

Gharuda sends this on our 'friends' at the Privy Counsil.
https://www.fort-russ.com/2019/05/the-forgotten-struggles-against-the-deep-state-in-north-america-1945-1968-part-i/