Political Discourse in Alberta: Seen through Orwell’s Lens

“Political language is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.”—George Orwell

It was fascinating to consider Jason Kenney’s comments on two issues that arose this week in the context of George Orwell’s commentary on political discourse.

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George Orwell

The first issue was Mr Kenney’s response to the latest bozo eruption, the second issue was his plan to save Alberta’s energy industry.  Mr Kenney’s comments illustrate the political bafflegab Orwell calls a “catalogue of swindles and perversions”.

“Making lies sound truthful”

Last week three UCP nomination candidates running in an Edmonton riding posed for pictures with the Soldiers of Odin, a white nationalist, anti-immigration group originating in Finland with links to neo-Nazis in Europe.

Two of the candidates said they didn’t know who the SOO were.  The third candidate knew exactly who they were but gave them the benefit of the doubt because they were polite.

Jason Kenney’s response to the incident was, umm, creative:

  • The SOO “crashed” the event (they RSVP’d in advance and checked with the venue to make sure they could wear their colours)
  • The SOO could have been mistaken for a baseball team or motorcycle gang (or they could have been recognized as the SOO from their regalia)
  • The incident was “an act of political mischief” by the Alberta Independence Party who apparently associate “with various kooky organizations.” (google the AIP, there’s no reference to the SOO or their ilk; the AIP supports the LBGTQ+ community but shares the UCP’s belief that parents should be aware of any extracurricular activity (including GSAs) their children participate in).
  • Premier Notley was wrong to say the fact the UCP allowed eight people who expressed racist or homophobic views to run for nomination indicates a “pattern of behavior” that shows the UCP is open to extremists. Kenney said this is “gutter politics” (gutter politics is rooting around in someone’s personal life to dig up dirt to discredit them, it is not the same as stating a fact, namely that eight UCP candidates expressed extremist views and the party continues to attract extremist supporters like the SOO).
  • Notley should have “stood in solidarity” with the Aboriginal candidates who were the “victims of this situation” (why? because they’re women? because they’re Aboriginal? because they were duped? because they’re standing for a party that attracts extremists?)

Orwell says politicians who speak without precision: (1) have a meaning but can’t express it, or (2) inadvertently say something they don’t mean, or (3) are “almost indifferent as to whether [their] words mean anything or not”.

Given that it’s not true the SOO “crashed” the event, there are no facts to indicate the AIP set it up as an act of “political mischief”, a white nationalist, anti-immigration group can be described as many things but “kooky” is not one of them, and Mr Kenney’s attack on Premier Notley is based on an incorrect understanding of the meaning of “gutter politics”, one can only assume Mr Kenney is “almost indifferent” about whether his words mean anything at all.

“Giving the appearance of solidity to pure wind”

When Mr Kenney wasn’t dealing with bozo eruptions he was telling the business community he’d fix Alberta by “hitting the ground running” and sending a message that “Alberta is open for business again”.

He says his government will be a champion of the energy industry.  He’ll move from “being on the defence” to a “fight-back strategy” (I guess that’s supposed to be an offense strategy but fighting-back sounds defensive to me).  He’ll set up “a well-resourced war room in the Ministry of Energy to respond in real time to every lie and myth told about our energy industry here in Canada or around the world.”  He’ll set up satellite offices if necessary.

Orwell calls this “pretentious diction”.  It’s used to dress up a simple statement, namely that Mr Kenney intends to increase the bureaucracy by hiring more people to man a “well-resourced war room” in the Department of Energy and its satellite offices to respond to “lies and myths” wherever they arise.

How will they respond?  Presumably by writing papers and op-eds, attending speaking engagements, and monitoring and responding to comments made in the mainstream media and social media by other governments (including First Nations) and special interest groups.  It is unclear whether the plan includes showing up at conferences and demonstrations to deliver the energy industry’s message to those that oppose it.

It’s a nice piece of corporate welfare but it’s just talk and will have no impact on the federal regulators and courts that approve interprovincial pipelines or international organizations like OPEC that impact global supply and thus prices.

Orwell warns that hackneyed phrases are meaningless; this is particularly true when they’re code for hiring staff to do something that will have no impact on Alberta’s economy.

Orwell’s message

George Orwell made his comments about political discourse in the middle of WW2 while “highly civilized human beings are flying overhead, trying to kill me.”  Alberta’s situation is nowhere near as dire, but Orwell’s observations are still relevant.

Albertans deserve more than political language designed to make lies sound truthful and give substance to meaningless fluff.

Jason Kenney’s off-hand dismissal of the SOO fiasco and his promise that a UCP government will send the message that Alberta is open for business simply doesn’t cut it.

This week Mr Kenney said nothing more than what Orwell described as a string of hackneyed phrases “tacked together like the sections of a prefabricated hen-house.”

Posted in Culture, Energy & Natural Resources, Politics and Government | Tagged , , , , , | 7 Comments

HAPPY THANKSGIVING

It’s been an intense week (aren’t they all).

Today let’s pause and reflect.  We have much to be thankful for.

Happy Thanksgiving everyone.

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A turkey to serve cranberry sauce.  Perfect.

Posted in Celebrations, Uncategorized | Tagged | 27 Comments

The Kavanaugh Confirmation Hearing and How a Calgary City Councillor Sank PostMedia’s Credibility

The Kavanaugh confirmation hearing is like a mirror shattering on the floor, shards of glass are flying every where and women are demanding accountability.

Everyone knows about the two women who confronted Senator Jeff Flake in an elevator and demanded he think carefully about the message he’s sending women by voting in favour of confirmation.

Fewer people know about Calgary city councillor Jyoti Gondek who took the Calgary Herald to task for running a column headlined:  “Kavanaugh doesn’t deserve this. What happened in high school stays in high school.”

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Brett Kavanaugh

On Sept 26, columnist Naomi Lakritz said the Kavanaugh hearing should “strike fear into the hearts of all men because it means no matter how sterling a reputation you have in your adult life and career, something dumb you may or may not have been involved in high school can forever come back to haunt you.”

The Herald says the column received “social media backlash”, local and national media called for comments, and two city councillors, Druh Farrell and Jyoti Gondek announced they would not respond to interview requests from Herald reporters.  (A third councillor, Gian-Carlo Carra, later made a similar announcement).

Gondek* is crystal clear about why she’s suspending interaction with the Herald.  She says it’s irresponsible to normalize sexual assault and disagrees with the Herald’s decision to print the column under the headline: “What happened in high school stays in high school”.

A day or so after Gondek announced her decision, she and the Herald leadership talked on the phone.  Gondek says they came to understand each other’s perspectives and are sorting through next steps.  She hopes Calgarians “can have a broader conversation about the state of journalism in a time of social media and polarizing global politics” and suggested journalists engage with citizens “to re-establish mutual expectations.”

This is a laudable goal on Gondek’s part, however it is doubtful the Herald will rise to the challenge.

On Sept 26 it published an editorial entitled “Free speech for all, including victims of sexual misconduct” where it said it did not agree with the Lakritz column but justified publishing it because editorial pages are intended to reflect a variety of opinions and stir debate so that “published ideas become part of the larger discussion.”

On Sept 29 it took a more aggressive stance with an editorial entitled “Importance of Free Speech” and declared, “We will not apologize.  We are a platform for free speech”.  The editorial included a reference to the Charter which protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” and a quote from the Canadian Civil Liberties Association (“It is only through exposure to different ideas and opinion that each person can make their own informed choices about their core beliefs.”)  The Herald said publishing the Lakritz column and two other columns that strongly disagreed with it was a privilege and a sacred trust and it would stand by its columnists’ right to express their opinions “and no amount of pressure from social media will change that.”

The Sept 29 editorial is bizarre for a number of reasons:

(1) No one is demanding an apology.  The Herald’s righteous refusal to offer one is a red herring that simply confuses the issue.

(2) Invoking the Charter in this context is meaningless.  The Charter protects freedom of expression, including freedom of the press and other media, from infringement by the government (incidentally, such protection is not absolute, the government can infringe our Charter rights with laws that are demonstrably justified in a free and democratic society).  Gondek and others, including the advertiser who objected to its ad running beside the Lakritz column, do not have the power to infringe the Herald’s freedom of speech.  However, they can galvanize public support for their opinion that the Herald acted irresponsibly and this could negatively impact advertiser and subscription revenues.

(3) Cherry picking a quote from Canadian Civil Liberties Association is disingenuous for a newspaper that often finds itself on the wrong side of CCLA causes like protecting LBGTQ rights and opposing what the CCLA calls “religious indoctrination” in public schools.

(4) The issue isn’t whether Lakritz should be free to express her opinion, but whether the Herald acted irresponsibly when it published Lakritz’s opinion in a format Gondek and others say normalizes sexual assault.

Where does this leave us?

Gondek says “we need to understand the significance of the words we choose, and the responsibility we carry when we express our sentiments publicly, regardless of the medium.”

This is particularly true for journalists who, in the words of veteran newspaper editor Neil Reynolds, are in a position to right wrongs and tell stories that bear witness to all that is universally human.

We live in difficult times.  We need newspaper editors like Neil Reynolds and citizens like Jyoti Gondek now more than ever.

*Gondek’s comments can be found @JyotiGondek or on her Facebook page

Posted in Law, Social Media, Uncategorized | Tagged , , , , , | 38 Comments

Blinded by the Brand

Why are people loyal to a brand that guarantees austerity today in return for the promise of prosperity tomorrow with no plan setting out how and when austerity will morph into prosperity and despite overwhelming evidence that similar promises failed to deliver prosperity in the past?

It’s a mystery, but part of the explanation has to be that people are blinded by the brand, especially if it sets up black hats and white hats and is easy to express in memes.

For example, if the UCP stands for righteous austerity, then the NDP must stand for frivolous spending.  If the UCP believes in trickle-down economics, then the NDP are rampant socialists.

There is nothing in between.

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But here’s where loyalty to the brand becomes problematic.  People who say they support the UCP because they believe economic pain today will bring economic prosperity tomorrow fail to understand that the UCP brand is more than an economic ideology, it extends to a discriminatory position on social issues that is attractive to homophobes, Islamophobes, pro-lifers, alt-rightists and nutbars who will run roughshod over the rule of law and democratic norms if it’s necessary to implement their conservative agenda.

UCP supporters argue they can’t be tarred with the same brush as the UCP lunatic fringe, they insist they’re fiscally conservative and socially progressive.

This brings us to what Timothy Snyder describes in his book On Tyranny as the renunciation of the difference between what you want to hear and what actually is the case.

Snyder says the truth dies in four ways.  His analysis is set in the context of tyranny but in this post-Trump era it is equally applicable to the conservative movement as espoused by Jason Kenney.

Presenting lies as facts:  Jason Kenney has convinced many Albertans that Alberta is on the rocks and only he and the UCP can save it, however, Bloomberg reports Alberta led the country in 2017 with GDP growth at 4.9 percent.  GDP growth is expected to be 2.7 percent in 2018 and many economic indicators including exports, manufacturing, rig activity and wholesale trade have seen gains.  The labour market is improving, and corporate profits are expected to be higher in 2018.

Even Mr Kenney knows this to be true.  He didn’t describe Alberta as a sad sack province when he traveled to India on a bizarre little junket.   Instead he told government and industry representatives that Alberta was a low tax province with one of the best educated work forces, efficient power prices and lots of strategic advantages for investment.

Shamanistic incantation to make the fictional plausible:  If there’s one thing Kenney and the UCP are adamant about it’s that the NDP are a bunch of raving socialists.  The comment section of any article describing anything the NDP government does demonstrates this fiction has taken hold with UCP supporters who are convinced the socialists are using any means possible, including farm safety legislation and the curriculum re-write, to spread their socialist ideology to the unsuspecting masses.

If Mr Kenney and his supporters knew anything about political and economy theory or simply paid attention to the Notley government’s relationship with the business sector (particularly energy) they’d know this isn’t true.

Magical thinking to embrace contradiction:  Mr Kenney insists that cutting taxes and implementing austerity will not negatively impact public services.  He refers to the Klein era as the golden age of balanced budgets but never acknowledges the devastating impact Klein’s cuts had on education, healthcare and infrastructure.  Short-term and long-term beds were cut by 50%, nurses and teachers left the province in droves, and the infrastructure deficit is now over $16 billion.

No amount of magical thinking will reconcile a 10% flat tax with the expectation that public services will continue to be provided at today’s standards.

Misplaced faith:  Snyder says when a politician presents himself as the saviour of [insert favourite ideology here] evidence is irrelevant, his followers will support him based on faith.

UCP supporters believe Mr Kenney when he says he’s interested in economic issues, not social ones.  They believe Mr Kenney when he says the UCP rejects those who express hateful views of entire groups of people and that such people are not welcome to run for the party.  They have faith that Mr Kenney will not support policies that discriminate against certain Albertans, notwithstanding the regressive beliefs of the lunatic fringe who’ve found a home in the UCP.

And yet not a week goes by without the discovery of a UCP nominee whose social media pages are rife with Islamophobic, homophobic, racist and anti-Semitic content.  Some of these nominees are removed from the nomination process, others remain in the race.  Their supporters continue to spout the same discriminatory beliefs Mr Kenney says are abhorrent to him and the party.

UCP supporters who insist Mr Kenney will separate his fiscally conservative agenda from his socially regressive agenda* are kidding themselves.

In their desire to become wealthy at some undefined point in the future, they’ve renounced the difference between what they want to hear and what the UCP has been broadcasting in dog-whistles and overt appeals to those who want him to implement economic and social policies straight out of the 1950s.

They’ve allowed themselves to be blinded by the brand.

*See Kyle Morrow’s well researched account of Mr Kenney’s 30-year fight against women’s reproductive rights   

Posted in Politics and Government, Uncategorized | Tagged , , , | 32 Comments

The Notwithstanding Clause: A Gift from Doug Ford to Jason Kenney

Sometimes silence speaks louder than words.

Last week Doug Ford went straight to the nuclear option when a judge told him no Doug, you can’t downsize Toronto city council in the middle of a municipal election just because you feel like it.  Mr Ford says he’s going to invoke the “notwithstanding clause”, Section 33 of the Charter of Rights and Freedoms, to get his way.

When a conservative politician makes a grand “I’ll show you” gesture, especially when it is accompanied by overblown rhetoric about activist judges interfering with the wise decisions of elected representatives, it is customary for all conservative politicians to pile on.

But one conservative politician, Jason Kenney, has remained uncharacteristically silent.  (Mr Kenney hits the airwaves to condemn things his own government did when it was in power, so it’s strange he’s not applauding Doug Ford for putting the judiciary in its place).

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Mr Kenney and Mr Ford

Mr Kenney could have said many things, including the comments he made 20 years ago as a Reform MP when he said the Klein government should “have the courage to invoke Section 33 [and begin] the recovery of democracy” to override a Supreme Court of Canada decision that said an employee could not be fired on the basis of his sexual orientation because it was a protected ground under the legislation.

Instead he declined to be interviewed.

It’s unlikely Mr Kenney is no longer worried about “the recovery of democracy”.

It’s more likely Mr Kenney is beside himself with joy.  Mr Ford’s decision to invoke Section 33 will give Mr Kenney a preview of what to expect if he tries to do the same thing in Alberta (assuming he’s elected in 2019).  If Mr Ford pulls it off without grave political damage Mr Kenney will deploy Section 33 as part of his legislative arsenal to transform Alberta into the beacon of the conservative movement.

It’s an incredible gift for the man who sees himself as the leader of the Canadian conservative movement.

Section 33

Section 33 has been described as “reintroducing a measure of Supremacy of Parliament” by allowing Parliament and the legislatures to “have the last word on a number of issues”.

These issues concern fundamental freedoms including freedom of thought, assembly, association, and the press (section 2), legal rights including the right not to be arbitrarily detained and arrested (sections 7 to 14) and equality rights including the right to equal protection and benefit of the law without discrimination on the basis of race, ethnic origin, religion, sex, etc (section 15).

Critics of the notwithstanding clause say it renders the Charter useless.  Others disagree saying Section 33 is limited in scope (it looks pretty broad to me) and time, it must be renewed after five years or it expires.  They also say it’s rarely used and legislative bodies generally let the Supreme Court of Canada have the last word.

This may have been true in the past, but it’s not true today when the conservative movement is being led by the likes of Doug Ford and Jason Kenney.

Mr Kenney’s agenda

Mr Kenney has been crystal clear about his economic agenda.  He will bring back the “Alberta Advantage” by eliminating the carbon tax, bringing back the 10% flat tax, and reducing the deficit by imposing austerity measures.

Yes, it’s going to hurt but it can be accomplished without impacting our fundamental rights and freedoms.

Mr Kenney has been less transparent about his social agenda, preferring to boycott potentially contentious debates rather than risk a bozo eruption.

However, the reaction of UCP to NDP legislation that protects LBGTQ2S+ rights and the rights of organized labour signals a desire to reverse the progress the NDP has made on these fronts.

This is where the “notwithstanding clause” becomes important.  The UCP government could pass legislation revoking such protections and invoke the notwithstanding clause to pre-empt any attempt to challenge such legislation for violating the Charter.

And there is nothing anyone could do about it.

Will he or won’t he?  

Mr Kenney refused to be interviewed about Doug Ford’s decision to invoke Section 33, instead the UCP issued a statement saying Section 33 “is a tool available to every provincial government to use if and when it is appropriate.”

Mr Kenney won’t comment because he’s waiting to see if Mr Ford can pull this off.

If Mr Ford is able to ramrod legislation through the House using Section 33, Mr Kenney will use it at the “appropriate” time to reverse socially progressive legislation and demonstrate to Alberta and Canada that he’s got what it takes to be the true leader of the conservative movement.

If Mr Ford is hammered by political blowback, Mr Kenney won’t have to backtrack from having praised Mr Ford for trying this stunt in the first place and can hold the idea in reserve for the future.

Mr Kenney knows there’s a time to be silent and a time to speak up.

Albertans know this too.

If Albertans want to ensure their Charter rights won’t get trampled by a UCP government in 2019 we need to speak up today and most importantly on Election Day.

Posted in Economy, Politics and Government, Uncategorized | Tagged , , , , | 21 Comments

What Albertans Can Learn From Barack Obama

To paraphrase that old E.F. Hutton commercial, when Barack Obama talks, people listen.

Last week Obama spoke at the University of Illinois.  He broke with the tradition of ex-presidents stepping away from the podium to give the new guy a chance to get on with his agenda because these are “pivotal” times.

He was concerned Americans wouldn’t turn out for the November mid-term elections because they’d become cynical, were taking their rights and freedoms for granted and were distracted by “electronic versions of bread and circuses”.

He said their lack of attention to politics had created a void that is being filled by power seekers sowing the politics of fear, resentment, and retrenchment in order to get into power and stay there.

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Former President Obama at the University of Illinois

Obama’s message was both disturbing and hopeful.  It was tailored to the American experience but is remarkably relevant in the Alberta context.

Obama’s message

In a healthy democracy the government does not, in Obama’s view, cut taxes on its wealthiest citizens, unwind regulations, weaken worker protections and shrink the social safety net; because doing so increases inequity, diminishes economic opportunity and increases regional, racial, religious and cultural tension.

Obama says a strong democracy embraces a number of elements.  These will be familiar to supporters of Notley’s NDP, the Liberals and the Alberta Party, but not so familiar or welcome in Kenney’s conservative party.  They include:

  • a free market subject to regulations governing health, safety, and the environment (Kenney’s promise to cut red tape would make the free market paramount),
  • recognizing society’s collective responsibility for healthcare (Kenney would shift more of this responsibility to the private sector—those who can afford better care would get it, those who can’t won’t)
  • empowering workers through unions (Obama floated the European model of giving workers a seat on corporate boards, Kenney’s head would explode)
  • eliminating discrimination against minorities, women, the disabled and the LBGTQ community, (Kenny vowed to repeal legislation protecting kids who join GSAs, he and his caucus boycotted the abortion bubble zone debates and they picked fights with Pride parade organizers),
  • standing up to bullies, racists, homophobes, misogynists and xenophobes, (the UCP puts them on the ballot and gives them free rein on social media. Check out David Climenhaga’s informative blog on how far the UCP will go to tolerate intolerance).
  • increasing disclosure and transparency (Obama is still waiting for Trump’s tax returns, Albertans will wait even longer for Kenney to disclose the complete list of donors who supported his run for the PC leadership)
  • not lying about government institutions and programs (Kenney attacks the federal equalization payment scheme, the immigration process and the Liberal’s handling of Trans Mountain but they’re not really creating “western alienation”.  Alberta’s long overdue revamp of the school curriculum is not really a conspiracy to turn our children into mini-socialists),
  • investing in science, infrastructure and education (Kenney’s promise to cut the deficit ASAP will cripple these investments).

All of these elements are indications of progress.

Progress

Obama says progress doesn’t move in a straight line, it moves in fits and starts.  Progress stands on the shoulders of people who refuse to be “bystanders to history, ordinary people [who] fought and marched and mobilized and built, and…voted to make history”.

Obama encourages citizens to look for candidates who champion fresh ideas rather than those who recycle stale ideas fluffed up with fear or resentment.  He urges citizens to support candidates who are running for something, not candidates who are running against something (like the UCP candidates who promise to bring back the “Alberta Advantage” but can’t tell you what it is and vow to repeal the carbon tax without offering an alternative plan to manage climate change).

So, if you’re worried about where a UCP government would take Alberta if they win in 2019, take Obama’s advice.  Get engaged, attend fund raisers, door knock, donate, and talk to your family and friends about the progressive alternative.

Barack Obama says you will generate a “spark of hope”.  Hope leads to change and change results in progress.

It’s time to listen.

Posted in Alberta Health Care, Economy, Education, Lectures, Politics and Government | Tagged , , , , | 36 Comments

The Trans Mountain Pipeline Court Decision

Ms Soapbox spent the long weekend poring over the Federal Court of Appeal’s decision nullifying the Order-in-Council that approved the Trans Mountain pipeline expansion (TMX).  Mr Bumble’s comment in Oliver Twist comes to mind.  Mr Bumble said if the court thought he could control his domineering wife, the law was an ass.

By now the entire country knows the FCA put a hold on the construction of TMX.

Everyone has an opinion, it’s a good thing, it’s a bad thing, did the Liberals learn nothing from Northern Gateway, is it another example of western alienation, etc.

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Have any of these people read the decision or are they content to misrepresent it in the hopes of drumming up votes?

Let’s look at the decision; but first some context.

Timeline 

In Dec 2013 Trans Mountain filed an application to build and operate the Trans Mountain Expansion Project with the NEB.

In May 2016 after reviewing tens of thousands of pages of evidence and hearing from 1600 participants, the NEB recommended to the GIC that the Project be approved subject to 157 conditions.

The Crown consultation process started in 2013 and ended in Nov 2016.  It was augmented by the work of a Ministerial Panel which identified “any additional views that could be relevant to the Government’s final decision” but was not part of the Crown consultation process.

In Nov 2016 the GIC accepted the NEB’s report and issued an Order in Council approving the Project subject to the NEB’s 157 conditions.

A flurry of appeals and applications for judicial review were launched and decisions were rendered.

Then on Aug 30, 2018 the FCA put TMX on hold.  It said the NEB report to the GIC was so flawed the GIC could not rely on it in making its decision and the Order in Council was nullified.

The FCA decision

The FCA’s identified two fatal flaws: (1) the NEB “unjustifiably” defined the scope of the Project to exclude Project-related tanker traffic and so avoided the need to mitigate the adverse effects of increased marine traffic on the Southern resident killer whale, and (2) Canada did not adequately discharge the duty to consult with Indigenous people.

Flaw #1:  Project Scope

The NEB said that unlike Transport Canada, Port Metro Vancouver, Pacific Pilotage Authority and the Canadian Coast Guard, it had no jurisdiction over Project-related shipping, namely tankers going in and out of Westridge Marine Terminal.

Consequently, it excluded Project-related shipping from the Project scope.  This meant it would assess the environmental and socio-economic effects of increased marine shipping under the NEB Act and conduct an Environmental Assessment under CEAA but would not address the impact of  increased marine shipping on the Southern resident killer whale under the Species at Risk Act.*   

The FCA said the Project scope should have included Project-related shipping, the Project was a “designated project” under Canadian Environmental Assessment Act (CEAA) and triggered the Species at Risk Act which required the NEB to address the adverse effects increased marine traffic would have on the Southern resident killer whale.

Commentators who say it’s bloody obvious the NEB screwed up clearly haven’t read a prior FCA decision in which the FCA dismissed an appeal of the NEB’s failure to include marine shipping in the TMX Project scope because the appellant should have raised its concern at the beginning of the NEB hearing when the NEB could have considered it fully.    

They’ve also not read this FCA decision where the FCA fails to explain why it ignored its previous decision and makes a pathetic attempt to justify the inclusion of Project-related shipping in the Project scope with a bootstrap analysis that starts with a CEAA guidance document CEAA says “is for information only” (it’s not a statutory instrument) and adds Trans Mountain’s evidence of steps it’s taken to enhance tanker safety plus NEB conditions on marine safety to reach the conclusion that tanker traffic is “incidental to” the Project and should be included in the Project scope.

The NEB is an expert tribunal.  It has the jurisdiction to consider matters of fact and law.  It determined it did not have jurisdiction over Project-related marine vessels.  The FCA tied itself into knots to demonstrate otherwise.

Flaw #2:  Duty to consult

The NEB identified 130 Indigenous peoples who might be affected by the Project.  Seventy-three were granted intervenor status and six brought applications arguing Canada had failed in its duty to consult.

The FCA reviewed the principles applicable to the duty to consult:

  • It arises from “the honour of the Crown” (a promise is a promise) and the protection of aboriginal and treaty rights in section 35(1) of the Constitution Act, 1982
  • It is fact specific
  • The depth of consultation increases as the strength of the prima facie Indigenous claim and seriousness of potentially adverse effects increases
  • Strong Indigenous claims may trigger a duty to accommodate, weaker ones may not.
  • The Crown’s duty to consult can be fulfilled in whole or part by the NEB process, but it’s up to the Crown to ensure the NEB consultation is adequate.
  • The duty to consult is not a duty to agree and does not give Indigenous people a veto.

The Crown’s consultation process started in 2013.  It had four phases and was complemented by a four-month consultation process run by the Ministerial Panel.

Critics argue Canada learned nothing from the FCA’s criticism of the Northern Gateway consultation process.  This is not true.

The Crown’s consultation process in Trans Mountain, unlike the process in Northern Gateway, did not withhold information from Indigenous applicants, it did not present inaccurate information to the GIC, it granted time extensions, it responded to information requests, it disclosed its assessment of the strength of Indigenous parties’ claims to right or title and its assessment of Project impacts and it made Ministers available.

The FCA ruled the consultation process was reasonable and satisfactorily implemented with the exception of Phase III which kicked in after the NEB closed the record and ended before the GIC rendered its decision.  Phase III was intended to address concerns not addressed in the hearing or by the NEB conditions and Tran Mountain’s commitments.

At this point everything fell apart according to the FCA.

The FCA acknowledged the consultation team was respectful and did a good job of understanding and accurately documenting the Indigenous applicants’ concerns and presenting an accurate and unbiased report to the GIC.

Nevertheless, the FCA found the consultation team failed to engage in “meaningful dialogue and grapple with concerns” so as to explore possible accomodation.

The FCA attributed this failure to the consultation team’s unwillingness to depart from the NEB’s findings and “genuinely understand” the concerns raised, as well as the GIC’s erroneous view that it could not add more conditions.

What should the consultation team have done?

Critics suggest the team should be more than stenographers.

Okay, but it didn’t have decision-making authority.  It couldn’t substitute its views for that of the NEB.  What should it have done to “meaningfully grapple” with concerns such as:

  • rerouting the pipeline to avoid an aquifer
  • implementing specific recommendations already covered in generic NEB conditions
  • reconsidering the behavior of diluted bitumen in the marine environment
  • putting a spill response centre on the reserve and funding it with a per-barrel spillage fee based on product flowing through the pipe
  • implementing a resource development tax on proponents with projects located on traditional territory

Did the team have better expertise than the NEB to make different recommendations to the GIC?  Or was it enough that the team presented an accurate and unbiased account of Indigenous concerns to the GIC?

One of the three judges in the Northern Gateway case said its consultation process was just fine.  The TMX consultation process was far better than the Northern Gateway consultation process and all three judges said it wasn’t good enough.

The courts are right when they say it’s impossible to take a “check the box” approach to consultation, but it would help if they stopped moving the goal posts in the name of “meaningful dialogue”.

What should the GIC have done?

The GIC is the final decision-maker when it comes to approving interprovincial pipelines.  It reviews the NEB report and can: (1) direct the NEB to dismiss the application, (2) accept the NEB’s report and conditions and direct it to issue the certificate, or (3) ask the NEB to reconsider its recommendations and conditions and resubmit the report.

The GIC picked door number two.  It accepted the NEB’s report and conditions and directed the issuance of the certificate.

But wait, the FCA says there’s a fourth option:  The GIC could have imposed additional conditions of its own on TMX and the fact it didn’t do so is another reason why the Crown failed to fulfill the duty to consult.

The GIC has never imposed its own conditions on a project.  When did it get this new power?  When the FCA gave it to them in the Northern Gateway (Gitxaala Nation) case.

The Supreme Court of Canada will one day let us know whether the FCA is correct.  But given the pipeline expertise at the GIC compared to pipeline expertise at the NEB it’s not clear Canadians would want the GIC to have this power.  (One shudders to think what conditions a Cabinet full of climate change deniers would slap on to an NEB project.)

Where do we go from here?

Well Ms Soapbox wants to go on vacation until this whole thing blows over…

But Canada will not be able to get a pipeline to tidewater if the FCA decision stands so it must be appealed on the grounds that the FCA was wrong to include marine shipping in the Project scope, and it was wrong to conclude the Crown failed to satisfy the duty to consult.

The feds could amend the CEAA to make it clear that a “designated project” does not include marine vessels moving in and out of marine terminals and just to be on the safe side, they could restart the consultation process.

Because as Mr Bumble pointed out, sometimes the law is an ass.

*Updated to clarify the fact the NEB conducted an Environmental Assessment under CEAA but since it decided the Project did not include Project-related shipping, decided it could not not address the impact of shipping on the Southern resident killer whales under SARA.

Sources: https://www.canlii.org/en/ca/fca/doc/2016/2016fca187/2016fca187.html

https://www.canlii.org/en/ca/fca/doc/2016/2016fca219/2016fca219.html

https://www.canlii.org/en/ca/fca/doc/2018/2018fca153/2018fca153.html

https://www.canada.ca/en/environmental-assessment-agency/services/policy-guidance/guide-preparing-description-designated-project-under-canadian-environmental-assessment-act-2012.html

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