Trans Mountain Appeal Part 2:  The Crown’s Duty to Consult First Nations

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First Nations celebrate their court victory.

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The Title and Location of the Court Decision.

Introduction

You can read a much shorter version of this post, published on October 10, 2018 by the CD Howe Institute, here:

CD Howe Institute.

On August 30, 2018, the Federal Court of Appeal (FCA) set aside the federal Cabinet’s approval of the Trans Mountain Pipeline Expansion (TMX) project. One of its two reasons for doing so was its finding that the Crown’s consultation with several First Nations (FNs) about the proposed projects had been inadequate.  The court criticized the government officials doing the consulting for seeing their roles as largely note-taking and communicating FNs’ concerns to the Cabinet, rather than engaging in a responsive two-way dialogue to “grapple with” their concerns.  To approve TMX again, the Crown will have to comply with the court’s requirement for further consultation. With respect, I think the court was wrong.  

A number of FN chiefs have made public statements that the government needs their permission to proceed with the pipeline, which permission they will deny.  That is incorrect. The SCC has held that the Crown’s duty of consultation does not give FNs a veto over project approval. Yet this FCA decision (as well as a similar FCA decision in the earlier Northern Gateway Pipeline case) has given FNs an effective veto.  The two decisions have now created two bad precedents. Continue reading “Trans Mountain Appeal Part 2:  The Crown’s Duty to Consult First Nations”

Appealing the Trans Mountain Pipeline Decision Part 1: The National Energy Board Issues

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I took the three photos below on a trip to Vancouver in 2016.

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Orcas travelling through the Vancouver harbour

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Bulk carrier moving slowly.

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Bulk carrier at anchor.

Background

Part 1 of this analysis discusses the issues around the National Energy Board recommendation to Cabinet, and Cabinet’s acceptance of it to approve the pipeline’s construction licensing. Part 2 will discuss the issues around the Crown’s consultation of several First Nations.

The CD Howe Institute recently published my brief (500 word limit) analysis of the Federal Court of Appeal’s (FCA’s) decision to overturn the Cabinet’s approval of the Trans Mountain Pipeline expansion.  I recommended that the federal government should appeal the decision to the Supreme Court of Canada (SCC). You can read that here, and continue to read my fuller analysis below.

Click here to read my short analysis on the CD Howe Institute website.

One of the reasons the Court gave for its ruling was that the Cabinet approved a  National Energy Board (NEB) environmental assessment (EA) report recommending approval.  The court held that the NEB report was so fatally flawed that the Cabinet could not reasonably have approved it.  The NEB had discussed, but not included in its formal EA, future increases in tanker traffic to and from the pipeline’s marine terminal in Burnaby, a Vancouver suburb.  That additional traffic might have harmful impacts on the Southern Resident Orcas, an endangered species. Continue reading “Appealing the Trans Mountain Pipeline Decision Part 1: The National Energy Board Issues”

Ontario’s Doomed Legal Challenge to Ottawa’s Carbon Tax

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Introduction
The Ontario government recently announced that it will be challenging the federal government’s carbon tax in court.  Ontario will most probably lose.  To understand why, we need to consider four issues:
1.  The Ontario Court of Appeal cannot hear any of the political arguments the Ontario government has against the tax.  What can it hear?
2.   What taxes is Ottawa allowed to impose under our constitution?
3.   What does the so-called carbon tax actually tax, and who gets to keep the money it collects?
4.   Ontario (like Saskatchewan) has said the tax is unconstitutional because it treats different provinces unequally.  Is that true?

Continue reading “Ontario’s Doomed Legal Challenge to Ottawa’s Carbon Tax”

Hydro One Doesn’t Matter

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HYDRO ONE DOESN’T MATTER.  WHY ARE POLITICAL PARTIES AND THE MEDIA TRYING TO FIX IT?

Consider a typical family ordering food for delivery to their home. Assume that the restaurant used to charge $40 five years ago but is now charging $80 for the same food. Assume the delivery service used to charge $10, but is now charging $11. Thus, in five years, the total cost of the delivered food has increased from $50 to $91. Would it make sense to blame the delivery service’s $1 fare increase for the entire price increase when the restaurant has doubled its prices? Of course not. Yet that is what the political parties and some media critics have been doing with Hydro One. The only reason I can think of for this mistake is that they are confusing Hydro One with the old Ontario Hydro, which used to generate and deliver electricity but was broken up years ago. 

For a typical Toronto Hydro customer’s 2018 electricity bill of $123 a month, Hydro One would represent no more than 8% of that total bill, around $10.31. Why is everyone obsessed with “fixing” the 8% while ignoring the remaining 92%, which is truly broken? Continue reading “Hydro One Doesn’t Matter”

Are Old Polluters Better Than New Polluters?

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Carbon dioxide emissions will become a scarce and valuable commodity in Canada soon. Who will be permitted to emit how much CO2? The answer should not depend upon whether someone has been emitting for a long time or  is just starting a new facility.  I have covered this topic in a recent publication of the C.D. Howe Institute that you can read here:

https://www.cdhowe.org/intelligence-memos/andrew-roman-are-old-polluters-better-new-polluters

Are Government Sharks Eating Too Much of Your Income in Taxes?

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 Note: I took this shark’s photo at the Ripley’s Canada Aquarium in Toronto.

 

According to an August 2017 study by the Fraser Institute Canadians pay, on average, more in taxes than for the basic necessities of life.  A typical Canadian household used 37 per cent of its income on basic necessities but 42.5 per cent of its income in taxes.  (https://www.fraserinstitute.org/article/taxes-the-average-canadian-familys-largest-expense)

An average Canadian family with an income of about $83,000 paid $31,000 for basic necessities: housing (rent and mortgage payments), food and clothing, while  paying roughly $35,000 in taxes last year.  (That includes federal, provincial and local taxes, including income, payroll, sales and property taxes.)

Canadians’ tax bill has risen by over 2,000 per cent since 1961, while the Consumer Price Index rose by only 718 per cent over the period, the report said.  Thus, taxes have increased by around 2.8 times as much the general cost of living.

This rate of escalation in the tax share of income cannot go on indefinitely.  All levels of government will have to put tighter limits on their spending, sooner rather than later.  However, that day can be put off for a few more years by the federal government distracting the voting public from government spending increases by complaining that some income groups are not paying their “fair share”.

Is anyone not paying their fair share? Continue reading “Are Government Sharks Eating Too Much of Your Income in Taxes?”