The News Rundown
- The Federal Court of Appeal has dismissed an appeal by Indigenous groups challenging the federal government's approval of the Trans Mountain expansion project — clearing yet another major legal hurdle for the long-delayed $7.4 billion project, which will carry nearly a million barrels of Alberta oil per day to the B.C. coast.
- In a unanimous 3-0 decision, the court ruled that Ottawa carried out "reasonable" and "meaningful" consultations with Indigenous peoples affected by the project's construction before approving the pipeline for a second time.
- The court decision says that "This was anything but a rubber-stamping exercise. The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from renewed consultation, all very much consistent with the concepts of reconciliation and the honour of the Crown."
- The court also said that there is no such thing as an indigenous veto, that pipeline advocates worried about with BC adopting UNDRIP, the UN motion that in lengthy words calls for such a thing.
- The court ruled that "The case law is clear that although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try and veto it. Canada must act in good faith, but at the same time accommodation cannot be dictated by Indigenous groups."
- The court made an important ruling against the veto: "The applicant's submissions are essentially that the Project cannot be approved until all their concerns are resolved to their satisfaction. If we accepted those submissions, as a practical matter there would be no end to consultation, the Project would never be approved, and the applicants would have a de facto veto right over it."
- Moreover, the court found that only a small subset of Indigenous communities are actually opposed to Trans Mountain's construction.
- Of the 129 Indigenous groups potentially affected by the project, 120 either support it or do not oppose it, the court found. Meanwhile, 43 Indigenous groups have signed benefit agreements with the proponent. The four Indigenous groups that launched this legal challenge have 60 days to appeal the Federal Court of Appeal's decision to the Supreme Court.
- The consultation do-over was made necessary by a Federal Court of Appeal ruling in August 2018 that concluded consultations to that point had been a "failure." The court quashed cabinet approval and directed Ottawa to meet again with Indigenous communities along the route and at the marine terminus near Vancouver. The court said the flaws identified in its previous ruling were "adequately addressed" and "reasonable and meaningful consultation had taken place." It said Ottawa mitigated "shortcomings in its earlier consultation process." and responded to Indigenous concerns and remedied them by directing cabinet to consider conditions beyond those previously imposed by the National Energy Board.
- This is the second victory for the pipeline and its proponents in the past month. In mid-January, the Supreme Court of Canada ruled the B.C. government could not regulate what flows through an interprovincial pipeline because such projects are wholly within federal jurisdiction.
- Alberta Premier Jason Kenney praised the decision — and even gave credit to Trudeau for getting the pipeline this far:
- "It demonstrates that we do have the rule of law. That decisions can be made, that big projects can be completed. The prime minister has reconfirmed for me, every time we've spoken, his government's commitment to complete this project. They did, after all, end up buying Kinder Morgan's Trans Mountain project for $4.7 billion, and frankly, we appreciate that. I think his government understands there has to be a balance and we agree, a balance between economic growth and environmental responsibility. We are committed to that."
- The Alberta government has long seen the Trans Mountain expansion as essential to turning around its economy, which has been battered by low oil prices since 2014. A big part of the problem is that constrained pipeline access has sent Canadian crude prices significantly lower than U.S. prices.
- Another project has also emerged as critical to Alberta: Teck Resources Ltd.'s Frontier oil sands mine. The massive oil development is awaiting a decision on federal approval, which could happen by the end of the month, unless the government delays an announcement.
- In the meantime, the Crown corporation that owns the pipeline confirmed that the projected cost has jumped by 70 per cent. It’s now expected to cost $12.6-billion by the time it’s up and running in 2022.
- Trans Mountain’s CEO says the increase was driven by delays, including from an earlier court challenge that derailed construction in 2018, increased costs for materials and changes to the expansion project. A single year’s delay, the corporation said, costs about $1-billion.
- The government plans to sell the pipeline when the risk is removed, though Finance Minister Bill Morneau wouldn’t say when that might be. He also declined to speculate whether he expects to sell it at a loss. Ottawa already spent $4.7-billion to buy it.
- In BC, a different type of pipeline is sowing conflict. The Coastal Gaslink LNG pipeline in central British Columbia was originally touted as a resource project that could sidestep some of the difficulties faced first by the proposed Northern Gateway pipeline and then Trans Mountain. But the past six weeks have demonstrated that that project, too, is beset by questions surrounding Indigenous rights.
- After a judge granted Coastal GasLink an expanded injunction to clear protesters from the site of a proposed pipeline needed to feed natural gas to the proposed LNG facility, provincial government officials have been scrambling to de-escalate the situation.
- Hereditary chiefs of the Wet’suwet’en Nation oppose the pipeline, though the project has the backing of all other elected band councils along the route. The hereditary chiefs agreed to seven days of talks with the provincial government and the province brought in former NDP MP Nathan Cullen to facilitate discussions.
- But they broke down this week. Early Thursday morning, the RCMP moved in to enforce the court injunction. Six people were arrested in the dawn hours of Thursday and the RCMP continued Friday to clear the obstacles blockading the path for workers to access the construction site for the pipeline. Officers dismantled two of three camps blocking access along the road on Friday. Further arrests are expected through the weekend.
- As tensions remain high along the rural northern B.C. road, the dispute has sparked a number of demonstrations across the country in solidarity with the First Nation. This includes a protest in southeastern Ontario which has forced the shutdown of passenger rail services since Friday morning.
- In B.C., a number of demonstrators have been protesting RCMP actions by occupying the Legislature in Victoria for more than 24 hours. Another protest shut down a major downtown Victoria road. Another protest has shut down access to the Port of Vancouver. A few weeks ago a protest blocked access to Vancouver Island's BC Ferries Swartz Bay terminal just north of Victoria. Close to 50 protesters brought signs and songs to the steps of the Kelowna Law Courts.
- One thing is clear from all of this: it is not easy to get any resources project up and running in Canada. Businesses see that, and that's why investment is fleeing.
- Supplementals:
- Edmonton’s unemployment rate rose by 0.2% from December to 8.2% while Calgary’s ticked up a tenth of a percent to 7.2%.
- Second and sixth highest in all of Canada, Edmonton is only beat out by Windsor, ON.
- On the whole Alberta’s unemployment rate rose to 7.3% from 7%.
- But back to the top 8: Windsor, ON (8.3%), Peterborough, ON (7.6%), St. John’s, N.L. (7.4%), Saint John, NB (7.4), Oshawa, ON and Regina, SK (6.7%)
- On the whole the nation’s unemployment rate sits at 5.5% with the lowest in BC followed by Ontario, Quebec, and Manitoba. The Atlantic provinces lag behind but Alberta and Saskatchewan join them in having rates far exceeding the national average.
- Most of the changes in Alberta were due to the decrease in part time work from the holiday season ending and the cold spell that gripped most of the province resulting in part time workers taking fewer hours.
- It’s estimated that about 19,000 positions were lost in Alberta.
- Drilling down specifically into the Alberta numbers we can see that the average standard error for the measurement in Alberta plus or minus 10.3 thousand for the total employed across all industries.
- What’s left out of the mainstream media reporting is that from December to January our natural resources sector saw a growth of 4200 jobs. This is above the margin of error of 3600.
- In total the losses came from the services sector otherwise known as the tertiary economic sector. These losses totalled about 18 and a half thousand.
- Primary (resources) vs. secondary (producing) vs. tertiary (retail/services).
- The biggest were wholesale and retail trade, transportation and warehousing, and business, building and other support services.
- The opposition NDP would have us believe that the UCP’s cutbacks are causing the unemployment rate to spike in Edmonton but job losses in the education, health and social services sector totalled only about 1600 with an error rate of about +/- 3700 for each sector respectively.
- What this means is that due to the fact this is a survey, these sectors may have very well gained jobs, or they could’ve lost. There’s no way of knowing.
- So how do we fix this?
- Create a more fruitful investment climate in the natural resources sector and compete with the US.
- Remove uncertainty
- Streamline approval processes for natural resource projects
- Reduce regulation
- Aim to become an energy superpower and become energy independent.
- The US is a competitor edging us out on net energy exports due to the fact most sources of american oil (shale and Texas light sweet) are easier to extract and produce than Canadian oil.
- The US saw a fracking boom even under President Obama.
- While a new pipeline and oil sands mine are great, they don’t change the competitive nature of our country and make Canada more attractive than the US.
- Canada lacks a robust energy policy to foster growth and until that is done, we’re unlikely to see a boom like in the Dakotas or low unemployment like our neighbours in BC have.
- Supplementals:
- B.C. motorists are about to see a drastic change to their auto insurance starting May 1st 2021, just 5 months before the next provincial election. Premier John Horgan unveiled Thursday the largest reforms to auto insurance since the creation of the Insurance Corp. of B.C, or ICBC more than four decades ago, as his government struggles to stop continuing financial losses at ICBC.
- The reforms will include switching from a litigation based system to a no fault system of insurance, which will result in a promised 20% cut to driver's insurance premiums in 2021. In the meantime, ICBC’s basic rates will not increase in 2020, the government revealed Thursday.
- No-fault insurance means people involved in vehicle crashes can no longer sue for damages, except in cases involving court convictions for offences like negligence, street racing, impaired driving, or in cases of faulty manufacturing, botched repairs and the over-service of alcohol by a business. Instead, people will receive benefits, payments for medical treatment and compensation directly from ICBC, using amounts set by the province depending on the type of injury.
- ICBC will continue to determine fault in crashes for the purpose of penalizing the at-fault driver with higher insurance premiums based on their crash history. However, everyone involved in a crash, regardless of fault, will have access to the same medical benefits — which for an at-fault driver means new care for things like permanent impairment.
- Horgan said of the changes that “A 20 per cent decrease in rates in the years ahead is a symbol to the people of British Columbia that we are going to wrestle this problem to the ground.”
- According to the BC government, the process will save ICBC an estimated $2.9 billion in legal fees, pain and suffering and injury claims in 2022. Roughly $1.2 billion of that will be redirected into boosting treatment benefits and quickening response times for claims. The remaining roughly $1.7 billion will go to fund the one-time rate cut of 20 per cent.
- Attorney General David Eby said “You shouldn’t need a lawyer to access the benefits you’ve paid for. The current auto insurance system in British Columbia simply doesn’t work.”
- Eby says that had the government not made the change, rates would have risen 36 per cent over the next five years, adding an average of $650 million to annual insurance costs.
- Eby admitted it sounds “too good to be true” that B.C. will adopt a model that boosts benefits and cuts premiums. But he pointed to other provinces like Manitoba and Saskatchewan that already have such systems: “It’s only because we see it actually being delivered in two other provinces that we believe we can do it.”
- A person’s doctor, not ICBC, will decide what recovery treatments are needed and for how long, according to the province. The government says the benefits will be available for as long as a person needs, meaning funding for care aides and supports for more seriously injured victims could be sustained for a person’s entire lifetime and not, under the current system, simply involve a one-time lump sum payment in court that must be rationed by the victim for future years and can’t be re-litigated.
- Money for pain and suffering will be eliminated for minor injuries; but for major injuries, cash compensation will be set by categories of benefits with maximum amounts set by ICBC, according to government. Repairs to vehicles will still be handled by auto adjusters with traditional damage assessments.
- However, not all of the Manitoba and Saskatchewan model is being followed. B.C. did not copy Saskatchewan’s hybrid model for no-fault, in which motorists can opt out and pay to retain the right to sue. It also chose not to follow Ontario’s partial no-fault system, in which legal action is still allowed if your injuries are severe — a loss of a limb, spinal cord damage, blindness and traumatic brain injury, among others. Ontario also has a fully private marketplace, with no government role in selling insurance.
- Opposition Liberal leader Andrew Wilkinson slammed the change as a cynical attempt to provide rate relief just before the next provincial election: “The problem we have is John Horgan and the NDP are saying to us you can trust ICBC for the rest of your life. That's the fundamental problem of trust, in that people no longer have any faith in ICBC.”
- Wilkinson repeated calls to end ICBC’s monopoly on basic rates and open up the market to private competition. He also said the current NDP government should follow Saskatchewan’s model and allow drivers to opt-out of the no-fault system and retain the option to sue. Roughly 0.5 per cent of Saskatchewan drivers choose to opt out of no-fault.
- The no fault model virtually eliminates the role of personal injury lawyers, who typically take one-third of the total amount awarded in a settlement and represent a powerful lobby group that continues to fight government reforms. They have argued a no-fault system would leave the most vulnerable victims, with the most catastrophic injuries, alone to face ICBC without legal help.
- The Trial Lawyers Association of BC said the change puts the rights of injured and vulnerable British Columbians “at grave risk.” John Rice, association president says that move is akin to "taking away the legal rights of British Columbians" in doubling down on protecting ICBC management who have gotten us into this mess in the first place: “This move will reward bad drivers and will reduce the ability for injured and vulnerable British Columbians to receive a fair settlement when injured. It’s a broken promise. They don’t have a mandate from the public.”
- The other thing that isn't mentioned is that the NDP repeatedly said over the past few years that they would "absolutely not" be moving to a no fault system. Before the 2017 election, the NDP sent a questionnaire to B.C. trial lawyers before the last election about the problems with ICBC. In it, the NDP said “The solution is not to take away or limit the legal rights of drivers. That means ‘No’ to no-fault.” It was a position the New Democrats stuck to through 2019, when Attorney General David Eby again shot down any no-fault talk. “We are not looking at no-fault insurance,” Eby insisted.
- There is a big factor that explains the flip flop: the still-burning ICBC financial dumpster fire. Drivers were set to get walloped with 36-per-cent rate hikes over the next five years if the government didn’t take drastic action, and after earlier hammering drivers with stiff premium increases in the previous 2 years, Horgan knew more rate hikes could produce a voter backlash in the next election.
- The NDP probably also felt extremely vulnerable to escalating attacks from the opposition BC Liberals, who were demanding ICBC be forced to compete against private-sector insurance companies as a way to reduce driver premiums.
- But will the public care if Horgan delivers that 20-per-cent insurance premium cut? The New Democrats don’t think so. The BC Liberals say it all comes down to trust. In the end, do you trust ICBC? And if so, do you trust David Eby and John Horgan?
- Supplementals:
Firing Line
- Last weekend Heritage Minister Steven Guilbeault called for licensing of media companies in Canada.
- This follows from the panel report on media in Canada that we talked about last week on our show.
- The report suggested requiring all companies that deliver "audio, audiovisual, and alphanumeric news content" to Canadians be regulated by the Canadian Radio-Television and Telecommunications Commission (CRTC) or another body, through a licence or registration.
- "If you’re a distributor of content in Canada and obviously if you’re a very small media organization the requirement probably wouldn’t be the same if you’re Facebook, or Google. There would have to be some proportionality embedded into this," said Heritage Minister Steven Guilbeault in an interview on CTV’s Question Period last Sunday.
- Another of the panel’s recommendations became known that would call for the CRTC to identify news sites that are “accurate, trusted, and reliable” to “enhance the diversity of voices.”
- On Monday the Heritage Minister walked back his statements saying that there would be no licensing of news sites and tried to clarify what he meant by media content.
- He said that the Liberal government "has no intention to impose licensing requirements on news organizations, nor would we try to regulate news content."
- Steven Guilbeault said, "We are committed to a free and independent press, which is essential to our democracy. Our focus will be and always has been to ensure that Canadians have access to a diversity of high-quality and credible news sources.”
- Also responding to the idea of applying the GST to foreign streaming services Guilbeault said it’s about fairness. “Companies are paying GST in Canada and there’s no reason that some of the wealthiest companies in the world who are operating on Canadian soil shouldn’t pay. They’re investing a lot of money in Canada right now. We’re asking them to dedicate part of that money to specific Canadian cultural content. We’re not asking them to do more.”
- Michael Geist, the Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa called the report “candidly extreme” and has no “physical boundaries.”
- On this Michael Geist said, "The industry is enjoying massive success, so the question then shifts a bit to OK; we want to ensure there are Canadian stories. Part of the problem with that argument is the last two years have also been record years for Canadian certified content.”
- He also said the panel doesn’t address what it means for content to be Canadian.
- Under the current laws Netflix couldn’t create Canadian content because the producer (Netflix) has to be Canadian!
- Ultimately Geist called it rather than a rejigging a “massive and costly overhaul of the system.”
- Steven Guilbeault mandate letter.
- The media could have noticed this early on but they were more concerned about the CBC and the Netflix tax.
- Supplementals:
Word of the Week
Protest - a statement or action expressing disapproval or objection
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Show Data
Episode Title: Who’s At Fault?
Teaser: The Federal Court of Appeal rejects a native veto on Trans Mountain, Alberta’s unemployment rate continues to rise, and ICBC is changing to a no-fault system. Also, the Trudeau government tries to put more regulations on Canadian media.
Recorded Date: February 8, 2020
Release Date: February 9, 2020
Duration: 52:44
Edit Notes: None
Podcast Summary Notes
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Duration: XX:XX