Maybe it was the way Canada kept insisting that their good intentions were enough to excuse abuse and neglect. Or how, though they kept saying “sorry”, they couldn’t help but take up all the space, ‘flagspreading’ their way to occupy 98% of the sofa without once handing over the remote. Tired of watching Beachcombers re-runs and being gaslit over wounds ancient and fresh, Indigenous Peoples negotiated, accommodated and — finally — litigated. 

So it’s no big surprise that Canada’s legal systems tend to borrow from family law when it comes to repairing relationships. From the issuance of Advance Costs to fund litigation, all the way down to the idea of reconciliation itself, instruments developed to settle disputes between quarrelling parties have been adapted to address this country’s most fundamental fallout. 

Let’s look at just one case: colloquially known as the Defend the Treaties trial, Anderson v Alberta was launched in 2008 by Beaver Lake Cree Nation(BLCN). Located 200 km north of Edmonton in the heart of what was once Alberta’s boreal forest, BLCN was faced with the explosive expansion of oil and gas projects in their territory. As a result, the community was finding it increasingly impossible to get out on the land to hunt, fish, and collect berries and medicines. Without these activities, it was growing difficult for families to make ends meet, and to pass on cultural knowledge from elders to parents, and from parents to children. 

Imagine if every time you set out to check on your traplines, you discovered another road, another well, another tailings pond. What you once knew as a sinuous landscape layered with lineages of your ancestral ecosystem knowledge has become a maze of dead-ends and no-go zones. Imagine if the rare caribou or moose you did encounter was inedible, the meat poisoned after the animal licked at the salty-tasting bitumen that seeps to the bog’s surface because of in situ oil sands extraction. 

For the small Indigenous Nation, the writing was on the wall: go to court, or lose everything at the heart of what it means to be Beaver Lake Cree.  

The Ecological Promise at the Heart of Canada’s Treaties

“A truly exceptional matter of public interest.” 

That’s how Canada’s Supreme Court described Beaver Lake Cree Nation’s legal challenge. At its core, the case involves a tiny Nation standing up to Canada and Alberta to demand that the protections assured in Treaty 6 be upheld. The treaty, signed in 1876, spells it out in black and white: Indigenous rights to hunt, fish, and practice cultural activities on their territory are enshrined in perpetuity in one of the country’s oldest contracts. 

The treaty protects not just reserve land, but access to vast tracts of boreal forest that Beaver Lake Cree have been sustained by, and have stewarded, for thousands of years. 

The Defend the Treaties case emphasises that it’s the cumulative impacts of industry on treaty rights that is at issue. A win would force regulators to evaluate new project applications not piecemeal, as is currently the practice, but according to how any well, mine, or pipeline fit into the overall picture affecting the availability, health and productivity of hunting and fishing grounds. 

When the case was filed, environmentalists took notice. A scrappy start-up organisation called RAVEN (Respecting Aboriginal Values and Environmental Needs) took on fundraising for the case. “We felt like it shouldn’t be up to First Nations to bear the huge cost of holding industry to account,” says RAVEN’s founding Executive Director Susan Smitten. “It’s not fair to rely on the poorest people in what is now called Canada to stand alone and be the voice of reason in this effort. They have the power of their treaties to protect the planet, and we have the power of a nation to support them.” 

Together with Chief Al Lameman, for whom the Defend the Treaties case was initially named, Smitten first stewarded funds from the Cooperative Bank of the UK, whose members invested, recognizing the strategic importance of BLCN’s challenge in halting the devastating impacts of tar sands extraction. Since then, RAVEN has raised more than $2 million dollars to cover a portion of BLCN’s hefty legal bills. 

For the governments of Canada and Alberta, Beaver Lake Cree’s ambitious challenge was a dire portent of a future where oil was no longer king. They knew that adopting a holistic view of project impacts would slow down the gold-rush frenzy that fuels the race to develop Alberta’s tar sands and get at vast deposits of bitumen and natural gas.  

Besides the fact that Alberta is sitting on the largest deposit of crude oil on the planet is the irrevocable climate reality that if we extract and burn it, we’ll assure the extinction of a million species: including, if we really blow it, ourselves. 

The whole industry is built on the pressure of short-term imperatives. Especially in the years since the Copenhagen and Paris climate agreements, the race has been on to squeeze as much profit out of the tar sands as possible before serious emissions controls come along to curtail development and ultimately make their product obsolete. If industry continues at its rampant pace, there just won’t be any caribou left for Beaver Lake Cree Nation members to hunt – that would turn the conversation from one about conservation of precious resources into one about compensation for irrevocable losses. 

The challenge for Beaver Lake Cree is simple and urgent: if tar sands development continues to expand in their territories, BLCN’s treaty won’t be worth the parchment that it’s written on. 

Court to First Nations: How broke are you? 

After a decade of fighting motions to strike and appeals, the Nation has won the right to have its case heard in court: the trial is set for 2024. Beaver Lake Cree are also making the case for why the government should advance them the money needed to pay for it. 

12 long years after filing the Defend the Treaties challenge, Beaver Lake Cree Nation was exhausted and flat out of funds. So, in 2018, Chief Germaine Anderson applied for what are known as Advance Costs. 

Let’s just go back to the family law analogy. When a married couple who disagree are seeking a divorce, if the husband holds all the financial cards, it puts the wife at an unfair disadvantage. He can finagle the house, the car, and even the kids if she is reduced to relying on legal aid or forced to go under-represented. To avoid that kind of scenario, the courts developed an instrument so that the richer party would be ordered to advance a set amount to the more ‘impecunious’ party, allowing them to afford a decent lawyer. Though they are sometimes called ‘awards’, Advance Costs are not grants but rather are a tool to level the playing field so that both parties are on more equal footing. 

To receive Advance Costs, the less wealthy party has to turn out their pockets in front of the court and prove just how broke they are. 

That’s exactly what Beaver Lake Cree Nation did. It really should come as no surprise that a rural Indigenous Nation — struggling to cope with outdated infrastructure, substandard housing and a shabby education budget — might not be able to sustain million-dollar litigation. But the Nation had to argue for the necessity of, for example, paying for the delivery of clean drinking water to community members ahead of spending that money on litigation. 

Having gone through the patronising process of being nickel and dimed by the government, the Nation managed to prove their ‘impecuniousness’ and in 2019 BLCN was awarded Advance Costs. Had that lower court ruling stood, it would have required Alberta, Canada and BLCN to share the costs of litigation to the tune of $300k each, annually, for the duration of the trial. 

In keeping with tactics the powers that be had been deploying all along, the award decision was appealed and overturned. With their very existence as a people at stake, fiercely committed to seeing justice done, BLCN took their Advance Costs fight to the Supreme Court of Canada. 

A milestone for Indigenous justice

After months of nail-biting, in March 2022 Beaver Lake Cree Nation received a unanimous Supreme Court Decision that will echo down the years as a landmark ruling on Indigenous access to justice. In a 9-0 decision, the Supreme Court of Canada overturned Alberta’s removal of Beaver Lake Cree’s Advanced Cost order.

The Supreme Court recognized that in an era defined by reconciliation and respecting Indigenous self-determination — to take care of pressing community needs first, before spending on court costs — must come first.

While the SCC ruling requires Beaver Lake Cree Nation to go back to the trial judge for a deep dive into BLCN’s financial situation and how it meets the fine-print criteria of “pressing needs” set out by the court, their appeal is a huge win for access to justice. 

It is also a big win for RAVEN. 

“It’s not every day we watch the needle move to advance the law in favour of Indigenous rights,” says Smitten. “We’re really proud to be part of this, and humbled by the never-flagging determination of BLCN’s leadership.”

All’s fair in love and litigation

Advance costs are actually extraordinarily rare, as they require that applicants pass a series of legal tests. Anderson v. Alberta clarified what those tests will be going forward. One thing that has not changed is that Advance Costs are only available for cases that are considered to be in the public interest. The court determined that there is a strong public interest in obtaining a ruling on the claims brought forward by Beaver Lake Cree Nation in its Defend the Treaties challenge. That alone may seem obvious — tar sands expansion affects us all, and Albertans, Indigenous and settler alike, have treaty obligations that should matter to everyone. 

But the court went further. Recognizing that we are in a new era where self-determination and reconciliation confer upon First Nations the right to allocate spending as they see fit, the Supreme Court affirmed that Indigenous governments — not courts — are best suited to set their own priorities and identify the needs of their communities. 

The Court also found that when a government has used delay and outspend tactics — bloating the costs of, and timeline for, urgent legal action — the court should ‘exercise its discretion’ in awarding Advance Costs. From now on, the fact that a First Nation might choose to allocate its limited funds to address the needs of its community – including for cultural survival and to fund basic services that most other Canadians take for granted – should not be used as a basis to disqualify the First Nation from advance costs for litigation to protect its Section 35 rights. 

Back to our family law metaphor: the court’s new ruling means that the person in charge of the household and children will be able to determine their own priorities and needs ahead of what some judge decides is ‘best for them’. This ruling takes some of the paternalism out of the Advance Cost process and opens the door for Nations to meet government and industry on a more level playing field. 

The Supreme Court also awarded solicitor-client costs to Beaver Lake Cree Nation for all three levels of court hearings related to the Advance Cost application and appeal. Now that Canada and Alberta have to pay BLCN back for what the Nation spent on the Advance Costs process, BLCN can immediately use these funds to gather evidence, elder testimony, and prepare arguments for what could be one of the most monumental legal challenges Canada has ever seen. 

An ambiguous win

BLCN’s victory was a major milestone in the Nation’s decades-long process to push back against the cumulative impacts of industrial development in their territory. But you’d never know what a big win they scored from reading mainstream media coverage. 

Most outlets failed to recognize the groundbreaking nature of the SCC ruling. Headlines reported both that the Nation had won, and that they had lost. Partly, that’s because the Nation was sent back to the lower court in Alberta for a rehearing on Advance Costs, this time using the new test set out by the Supreme Court. But under those conditions, the Nation not only qualifies: they literally set the standard. The opportunity to go back to the court to adjudicate the award amount and terms under these new Supreme Court criteria may result in an even larger sum being awarded to the Nation. 

Karey Brooks, lawyer for Beaver Lake Cree Nation, is unequivocal. “The Supreme Court of Canada ruling is a huge win for access to justice.” 

She explains that the Court recognized Indigenous self-determination when it emphasised that a Nation’s pressing needs must be understood within the broader context from which a First Nation government makes decisions.

“I think it’s a huge win in that respect.” 

Fair’s Fair: Enshrining Access to Justice into Law

Going before the courts – for both advancing the original claim to trial and to achieve Advance Costs — Beaver Lake Cree Nation has been validated, and their right not only to pursue their case but to receive support, fully affirmed.

“The greatest barrier to justice – and victory for this court challenge – is the high cost of the legal system,” says RAVEN’s Susan Smitten. “How fantastic that a small group of dedicated donors was able to shore up this challenge to fund a trial that could stagger the tar sands behemoth. Also: how spooky to think how many worthy cases have faltered due to lack of resources.”

The implications of this judgement are nation-wide and capture in law the sovereignty of a Nation’s decision-making. Judges will now be able to take into account systemic factors such as the history of colonialism, displacement, and residential schools and how that history continues to operate today. 

Thanks to Beaver Lake Cree Nation, Indigenous Peoples will no longer, as a judge in Alberta’s Court of Queen’s Bench put it, have to “stand naked before the court.”

No matter how the lower court chooses to award Advance Costs, Beaver Lake Cree will still be on the hook for hundreds of thousands of dollars a year for the duration of the trial, which could last several years. No matter how the court rules: RAVEN will be there. 

“When we join forces as Indigenous Peoples and settlers, we can move mountains – and create better laws” Susan Smitten, Executive Director, RAVEN

This story was generously funded through support from Metcalfe Foundation.

Follow RAVEN online!

Website

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The post Mediating a Marriage on the Rocks: Anderson v. Alberta appeared first on A\J.

To support the Isles de Jean Charles Tribe please visit http://www.isledejeancharles.com/

For more information about the Pointe-au-Chien tribe, and to support their restoration projects and their application for federal recognition, please visit their website at http://pactribe.tripod.com/.

In the shadow of the hurricane was Produced in association with Turtle Island Solidarity
https://www.facebook.com/turtleislandsolidarity/

To support the Isles de Jean Charles Tribe please visit http://www.isledejeancharles.com/

For more information about the Pointe-au-Chien tribe, and to support their restoration projects and their application for federal recognition, please visit their website at http://pactribe.tripod.com/.

For more information on supporting the fight against coastal erosion in Louisiana please visit The Meraux Foundation at merauxfoundation.org/ and to volunteer and help fund wetland restoration projects in Lousiana visit www.commongroundrelief.org. 

To find out more about the Louisiana Universities Marine Consortium and their research, visit https://lumcon.edu/

The post In the shadow of the hurricane appeared first on A\J.

***

Follow up:

Sources: News this week

The Recap is part of our Student Summer Takeover series which aims to amplify the voices of young people in environmental media. New episodes will be released at the beginning of every week, don’t miss out!

***

Follow up:

Sources: News this week

https://www.theguardian.com/global-development/2019/aug/06/us-states-water-stress-new-mexico-california-arizona-colorado
https://www.energylivenews.com/2019/08/05/irish-18-year-old-invents-way-to-remove-microplastics-from-water/
https://www.cbc.ca/news/canada/windsor/algal-blooms-colchester-toledo-1.5237286

The post The AJ Recap: Something big appeared first on A\J.

The environment has not been so front and center in Canadian politics since the early 1990s. October’s federal election suddenly has three parties (Greens, Liberals and NDP) looking to outdo each other on environmental concerns. It has been a long time since government in Ottawa made our glaringly obvious environmental problems a leading priority. What happened?

Increasing visibility happened: starved whales washing ashore with stomachs full of plastic, mass puffin deaths likely a result of climate change, above normal scale and frequency of wild fires and flooding and the recent devastating IPCC climate report. But also, crucially: Trump, Ford and Kenney determined to ignore our urgent environmental problems and, worse, to aggressively erase long-established protections and, perhaps most important to the green shift in priorities, the stunning worldwide political interventions of savvy young people.

Work to get young people thinking about their futures and older people thinking about their grandchildren’s futures. If we can do that, most Canadians will figure out the right thing to do in the voting booth.”

As in the 1970s, new environmental organizations are proliferating: the Sunrise Movement, Fridays for Future and Extinction Rebellion to name three. They take to the streets peacefully and playfully and are quickly changing global public consciousness. American Presidential candidates are endorsing the Green New Deal and green parties recently made big gains in the European Parliament and elsewhere.

Canada’s Green Party is also surging: electing provincial leader Mike Schreiner as Guelph MPP, winning a federal by-election in British Columbia, electing three members in New Brunswick and becoming the official opposition in PEI. Federally, Greens are now polling at 10-11% and, importantly I think, Elizabeth May will participate in this autumn’s televised leader debates. The Canadian political landscape could be moving toward a system with four major parties.

Regardless, a three-way competition for pro-environment voters is underway. The Liberals, doubtless reading opinion polls carefully, are 1) pushing hard on a carbon tax, 2) eliminating the captivity of whales and dolphins and 3) proposing elimination of single-use plastics by 2021. All are very positive steps. The NDP, also losing ground to the Greens, has offered bold proposals in the spirit of the Green New Deal advanced in the US and elsewhere. The NDP has included energy efficiency renovations of virtually every building in Canada by 2050. The Green Party, of course, has had broad and bold plans on climate in its platform for years and, of late, had pushed for the parliamentary initiative on whales and dolphins. The question remaining now is what do environmental voters do in the federal election to maintain this new momentum?

Absent electoral reform our decision as voters is not easy, all the options involve complications and unknowns. My own first choice in terms of outcome is for a minority government that includes any combination of the three parties that do not more or less exclude environmental action (other than cutting Environment Canada budgets). A ‘Minority government comprised of only the pro-environment parties’ is not, alas, a single ballot circle where one can put an ‘X’.

There are things to learn or decide before making one’s choice. Has the incumbent in one’s riding demonstrated environmental concern through past actions? What is in each party platform? Which candidates and parties emphasize aggressive initiatives on climate change? For those considering strategic voting, what is the prior voting history in your riding (does the best party have any chance)? Is the worst party competitive in the riding (if not, vote freely for your first choice)? What do current polls show about this time (how much have things shifted)? And, importantly, is it time to consider just putting aside strategic voting considerations?

These are all tough questions, but here are some suggestions. Work out a personal plan soon enough to participate on behalf of your choice early on so that you can help with a campaign. Even without a plan, go to all-candidates meetings and ask environmental questions. Talk to friends and family about why this election, and environmental issues, are urgent this time around. Work to get young people thinking about their futures and older people thinking about their grandchildren’s futures. If we can do that, most Canadians will figure out the right thing to do in the voting booth.

The post Environment: On Canada’s Agenda Again appeared first on A\J.

***

Follow up:

Go check out Our Time for more information:

http://its.our-time.ca

The Recap is part of our Student Summer Takeover series which aims to amplify the voices of young people in environmental media. New episodes will be released at the beginning of every week, don’t miss out!

***

Follow up:

Go check out Our Time for more information:

http://its.our-time.ca

Also check out Climate Justice Toronto

https://www.facebook.com/climatejusticeto/ 

Sources: News this week     

https://www.theguardian.com/environment/2019/may/18/this-is-a-wake-up-call-the-villagers-who-could-be-britains-first-climate-refugees
https://www.cbc.ca/news/canada/new-brunswick/north-atlantic-right-whale-dead-1.5219891
https://www.bbc.com/news/world-europe-49108847

The post The AJ Recap: Change the debate appeared first on A\J.

How can I consider myself a “real environmentalist” if I’m not keeping up with the issues and solutions being discussed in the world around me? For me, Twitter and Instagram are often the first place where I find out about current and trending topics in the news. Recently, while browsing Twitter, I noticed that the hashtag #Billc69 was trending and saw a lot of comments about this bill, which proposes a new environmental impact assessment system. Being an Environmental Assessment student, these familiar words enticed me to dig in and find out why so many people had so much to say about it.

Bill C-69 was adopted on June 20th by the Canadian federal government. According to the Parliament of Canada, it is “an Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, an Act to amend the Navigation Protection Act and to make consequential amendments to other acts”. Essentially, this bill will introduce new laws governing environmental assessments, replace the National Energy Board with a new Canadian Energy Regulation and amend the Navigation Protection Act.

The federal government says this bill will rebuild public trust around decision-making by increasing public engagement, creating stronger rules for environmental protection, increasing engagement with Indigenous peoples, and requiring both early planning phases and shorter review timelines. The new impact assessment act is also seen as a way for the government to assess larger projects like pipelines and railways and their effects on human health, the economy, and the environment.

The Honourable Catherine McKenna, Minister of Environment and Climate Change, has naturally been one of the major voices promoting the bill through the media. In a promotional video, she says with Bill C-69 and the new impact assessment system, project decisions will be more closely based on scientific evidence and Indigenous traditional knowledge. The new system would allow for more opportunities for Canadians to participate in the decision-making process through the creation of simple summaries available to the public and by recognizing the rights of Indigenous people and their roles in decision-making.

But the bill has been facing a lot of criticism online, and unsurprisingly, most of the concerns are related to its impacts on the oil and gas sector. Conservative Party Senator for British Columbia, Richard Neufeld, called Bill C-69 “one of the most toxic, polarizing and divisible bills” he has ever encountered in his 10 years as a senator. In an official video, the Premier of Alberta, Jason Kenney, called Bill C-69 “a no-more-pipelines law” and said the bill is “attacking a major export of only one province, Alberta” and “is a prejudicial discriminatory attack” with “no defensible rationale”. Alberta’s Energy Minister, Sonya Savage said the bill “strikes at the heart of national unity”, suggesting it shows a disregard for jobs and the economy. But Alberta is not the only provincial government against it. Newfoundland and Labrador Senator David Wells says, in a guest column for St. John’s Telegram, that Bill C-69 “kneecaps the well managed and responsible petroleum sector supposedly in the name of the environment”.

Despite the loud criticisms, however, the bill also saw positive traction and feedback online. According to the National Post, Bill C-69 has been supported by industries such as the Mining Association of Canada. Many environmental organizations support the bill, while pointing out that it could have gone further in protecting sensitive ecological regions and accounting for greenhouse gas emissions. Several Northern Alberta Indigenous leaders have also supported the legislation. “Our intent with Bill C-69 is to ensure that it is robust enough to allow First Nations across Canada to have their rights considered without having to resort to courts,” said Chief Archie Waquan of Mikisew Cree First Nation tribe of Alberta, to the Canadian Press for Global News. West Coast Environmental Law, a non-profit group of environmental lawyers and strategists, have shown support for Bill C-69 as well. They hosted workshops around Canada on Impact Assessment, participated in expert review and debunked myths about C-69. They described the passing of this bill as “a huge step forward for environmental decision making in Canada.”           

So, what does this all mean? From the time it was proposed to after it was passed, Bill C-69 has been viewed as a threat to the economy by the oil and gas sector and  conservative commentators because of its tighter environmental regulations. Their pushback is understandable. With more serious action on the climate crisis being demanded in the last few years, people whose livelihoods depend on the oil industry are worried about how they will be affected every time an environmental bill is proposed. But the new impact assessment systems and regulatory bodies are not even up and running yet. We should at least give it an opportunity to work. After all, it only seeks to put more efficient regulations towards protecting the environment, as the Ministry of Environment is expected to do. 

The post Bill C-69: Assessing the impacts appeared first on A\J.

The Green New Deal (GND) has gotten a lot of attention since legislation was proposed in the U.S. Congress in February. The term derives from Roosevelt’s New Deal policies during the Great Depression. The Green New Deal, however, addresses today’s two most urgent problems simultaneously: climate change and rising inequality. This approach may lessen the current appeal of climate denying populism for some. Canadian jurisdictions should consider a similar approach.

The inequality gap between the rich and everyone else has increased continuously since the late 1970s. Since 1978, controlling for inflation, most wages in America have only increased by 6% while executive’s incomes have gone up 937%. The upper 1% now make twice what the bottom half of the population do. Canada is slightly less unequal, but our CEOs earn 300 times the minimum wage — not enough, of course, to keep some of them from objecting to a $15 minimum hourly wage.

 The polar opposite of simultaneous progress are the policies of Trump and Ford who do all they can to increase fossil fuel consumption and the wealth gap.”

Climate change has been underway for at least 40 years. Yet global carbon emissions are still rising despite the efforts of some nations. In Europe and elsewhere, a few have achieved year over year reductions, but Canada and most others have not. The world as a whole has not even started on reducing emissions.

The GND urges rapid progress on both problems, an ambition that is wonderfully out of step with North American politics-as-usual. The norm on this continent as a whole is decades of delay (though B.C. and California have stepped up as did Ontario until recently). The polar opposite of simultaneous progress are the policies of Trump and Ford who do all they can to increase fossil fuel consumption and the wealth gap.

GND policies are labelled as radical merely because they assume that governments should, and can successfully, address both. Addressing the two jointly may actually be easier than taking them on separately. As Van Jones argued a decade ago, more good jobs are created addressing climate than are produced in continuing with a carbon intensive economy. Both America and Canada would gain more jobs building a post-carbon economy than would be lost in completely phasing out all fossil fuels. As a bonus, the jobs would be distributed geographically much more widely than fossil energy jobs. Renewable energy is also owned more broadly – often by homeowners, farmers, communities, utilities, non-energy businesses, coops and landowners.

America’s GND proposal includes an equality-building job guarantee, increased energy efficiency, regenerative soil management, energy storage research, and comprehensive retraining opportunities for those in vulnerable jobs. It even advocates a guaranteed annual income in response to the looming age of artificial intelligence and self-driving vehicles. Indeed, GND House of Representatives legislative sponsor Alexandria Ocasio-Cortez has said ‘no one should have to fear automation, but all should instead welcome it’.

A key political strength of the GND is that it explicitly opposes blaming job losses on scapegoats (immigrants or other nations). It understands that there is more than enough worthwhile work to do on better health care and education, healthier food, improved infrastructure, new technologies and, above all, on transforming our energy systems. Underfunding these needs are, in effect, needed jobs that never happen.

We will also need to deal with carbon removal from the atmosphere and protecting biodiversity and habitat. Crucially, everything mentioned above is only affordable before we are overwhelmed by the high cost of serious climate impacts.

Finally, the most important political argument for a Green New Deal is this: it can be adopted at any level of governance – globally, nationally, provincially, municipally or regionally. This is crucial because the progress we need only rarely has all governments on side simultaneously and continuously. To succeed globally many cities and nations must relentlessly demonstrate that positive change is possible.

Those who would deny the possibility of reversing inequality and the need to stop climate change must be proven wrong continuously. With most of the world moving forward on both fronts we can decisively reject political claims of harm to the economy or the non-importance of climate change. 

The post The Green New Deal: Our Best Chance on Climate appeared first on A\J.

The Toronto MPP and former Greenpeace head introduced Bill 21 Monday at Queen’s Park, legislation that would  pave the way for individuals, governments and businesses to sue fossil fuel companies for property damage or loss, the higher cost of insurance or infrastructure expenses to protect against future harm.

“The world’s largest fossil fuel corporations have to start paying their fair share of the damages that are going to be inflicted by climate change,” Tabuns said. “And they also have to pay for steps necessary to protect people from those climate damages.”

Peter Tabuns, Ontario MPP, Toronto-Danforth (NDP)

Working with legal guidance from Greenpeace and West Coast Environmental Law, Tabuns’ bill assumes “strict liability on the part of producers” so that companies cannot argue their innocence or ignorance. It starts from a belief, as the preamble to Tabuns’ legislation makes clear, that climate change is real and caused by human activities. “You made a product and it is generally known that your product causes damage,” Tabuns said. “The fossil fuel majors knew exactly what they were doing and what the consequences would be.”

It’s part of a growing wave of climate litigation taking place across the world. Kristin Casper, litigation counsel for Greenpeace Canada, told reporters that Ontario has the opportunity to take the lead in making it simpler for people who are being harmed by climate change to hold big polluters accountable.

Casper pointed to one Peruvian farmer who is currently asking a German court to help him hold a coal plant near his community accountable for a nearby melting glacier that threatens his home and livelihood. In the Philippines, communities have successfully petitioned the country’s human rights commission to investigate the role of numerous fossil fuel companies in possible human rights abuses. Supercharged typhoons and other climate-driven natural disasters, they believe, are negatively affecting the country and its residents.

“I work with lawyers and communities around the world who are seeking justice for climate impacts like stronger storms and sea level rise,” Casper said. These impacts “are already being felt and are only going to get worse.”

Closer to home, New York City became the latest government to announce it was suing five major oil producers for billions to cover the infrastructure costs associated with preparing the city for a warmer future. Mayor Bill de Blasio also indicated his city’s pension fund would divest itself of $5 billion in fossil fuel holdings. And in British Columbia, the City of Victoria and other communities are sending letters to more than a dozen fossil fuel companies asking them to pay for repairing climate change-related damages.

In Ontario, Tabuns admits the costs of climate change have not yet been calculated. But the extreme flooding in the Greater Toronto Area in July 2013 and the ice storm that December cost Ontarians more than $1 billion. New York, meanwhile, is forecasting that $20 billion is needed to protect the city against a warming future.

Asked whether the cost of lengthy litigation processes would be worth taxpayer dollars, Tabuns said any legal bills would be dwarfed by the costs of climate damage. “This is going to cost us in the many billions of dollars,” he said. “We are going to have a huge burden put on us dealing with damage and infrastructure costs that will far exceed any legal costs.”

Keith Stewart, a senior energy strategist at Greenpeace Canada, told reporters that scientists have gotten much better at determining the causal links between fossil fuel burning from specific companies and its impacts on individual extreme weather events. Investigative journalism, meanwhile, has exposed decades of shady behaviour from fossil fuel companies like Exxon Mobil, who claimed the science was too uncertain to warrant government action on climate change, all while incorporating the same data they publicly discredited into their internal operations to protect their investments,  

“Oil and coal companies have hid what they knew about the science to delay policy actions that would reduce the market for their product,” Stewart said. They didn’t just create this problem, but their attempts at cover-ups and financing disinformation campaigns have actively made the problem worse.

Renowned climatologist James Hansen, former head of NASA’s Goddard Institute for Space Studies, joined the press conference via Skype. “Climate change is already underway,” he said, and it’s today’s young people and their children who are the most threatened by the irreversible effects of sea level rise and species extinction.

Intergovernmental accords like the Paris Agreement are “basically wishful thinking,” Hansen said. “The actual phase-out of carbon emissions and justice for young people will only occur when fossil fuel companies pay for the costs of climate change.”

The post Ontario MPP Peter Tabuns (NDP) tables climate damages legislation appeared first on A\J.

Dilbit could be a good name for a goofy dog. Instead it is short for “diluted bitumen,” the serious mix of light petroleum diluent and the oily tarry sandy goop that the hydrocarbon industry wants to ship from Northern Alberta to foreign markets…

Unlike bitumen, dilbit flows in pipelines and several new or expanded dilbit pipelines will be built if the industry gets its way. The proposed pipelines – most notably the Northern Gateway and Transmountain pipelines from Alberta to British Columbia’s Pacific coast, Line 3 across the prairies, and the Energy East pipeline to New Brunswick and the Atlantic – would facilitate big increases in bitumen extraction, transportation, processing and eventual combustion.

The main attraction is jobs and revenues, presuming the price of oil rises. However, bitumen extraction is already an environmental horror. Spilled pipeline dilbit is a clean-up nightmare, and bringing more bitumen to market is difficult to justify in a country committed to doing its part to prevent climate warming beyond 1.5ºC. 

Inevitably, then, proposals for more dilbit pipeline capacity have faced determined opposition.

For much of the past decade, the designated lightning rod for these conflicts has been the beleaguered old National Energy Board (NEB) – an old school regulatory body with a staff of technical experts and a board of appointees sensitive to industry and government concerns. 

Acceptable to whom? For how long? Assuming what circumstances? Relative to what other options?”

Formally, the NEB’s job is to determine whether each major pipeline proposal “is and will be required by the present and future public convenience and necessity.” In practice that has meant judging whether (and under what terms and conditions) each proposed pipeline is acceptable. 

The “acceptability” test is a relic from the days when private sector resource exploitation ventures were a mostly unquestioned Good Thing, and just needed to be checked to ensure the engineering was sound and the results would not offend national policy.  

In those days it was possible to imagine an identifiable line between unacceptable and acceptable. Technical analyses by specialized experts and close relations with government and the regulated industry could reveal whether or not a proposed project met the accepted standard of established practice.

Unfortunately for the NEB, the imagined line between acceptable and unacceptable has faded. Established practice is now widely associated with imposing local sacrifices, disregarding Aboriginal rights and ignoring climate change. The available information is always incomplete, the simplifying assumptions are always debatable, and acceptable is always a matter of choices and preferences. 

Even when acceptability decisions are coated with technical analyses and buttressed by entrenched expectations, they always rest on assumed answers to the big choice questions – acceptable to whom? for how long? assuming what circumstances? judged against what criteria? relative to what other options?

In the dilbit pipeline cases, these questions have been central. Interests and experts have disagreed, often forcefully and fundamentally – not only about the likelihood of particular effects from individual projects, but also about what bigger issues should be on the table, what happens if all the pipelines are approved, what would be a fair distribution of benefits and risks, and how might any dilbit pipeline fit in a viable plan to meet Canadian climate commitments.

The old NEB has doggedly persisted in trying to identify a line between acceptable and unacceptable for the individual projects of an unsustainable agenda. So far, it has succeeded mostly in undermining its own credibility. Its approval of the Northern Gateway proposal met a wall of Aboriginal and public interest opposition, high court rejection and political abandonment. The other proposals may fare no better.

For the dilbit pipelines, the relevant question is not whether this or that old economy project is in some narrow technical or political sense acceptable, but whether such projects will move us to a more promising future. That is a question about options and objectives. It rejects imaginary lines and faces the big choices. 

An approval test based on best options for a viable and desirable future is demanding but realistic. Settling for less is unacceptable.

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The Cofán lived in the Amazon rainforest long before companies like Texaco came to drill. They are trying to maintain their culture, but the government has given away the land under their feet to encourage colonization of the “empty” territory. And of course, when oil comes out of the ground, it comes out with health, environmental and social problems.

On the other side of the title sequence there is a parallel of Hugo’s opening scene: David Poritz is also peering into the water – a village well. “Chromium,” he declares to a group of voluntourist types. “Cancer water.”

Oil and Water is the chiasmus of two lives defined by this issue. 

Oil and Water is the chiasmus of two lives defined by this issue. Until the age of ten, Hugo Lucitante lived in the village of Zábalo on the Aquarico River. Then an American graduate student visited and Hugo’s father asked her to take his son to America so that he might “understand who the enemy is.” If this sounds desperate, well, what would you have suggested to a disenfranchised people on the brink of losing their way of life?

David, on the other hand, is driven by his own choices and ambitions. A school project on oil spills led to volunteering for a class action suit against Texaco, which led to visiting the villages along the Aquarico River, which led to a realization. There was no EPA for the developing world; there was no real recourse for the victims. His solution is a fair-trade-style certification for oil companies called Equitable Origin. He hopes consumer pressure and government regulations will force companies to behave responsibly in order to earn his certification.

David, Hugo and the Cofán provide Oil and Water with a lot of fascinating subject matter and it does a great job of taking us into these lives. The footage is often immersive. The acoustic guitar-driven soundtrack does an excellent job of conveying urgency and melancholy.

My only complaint is that the movie never goes very deep. It brings up good questions but we often get no answer, or only superficial ones.

For example, what must it be like to be Hugo, to have been chosen to save his people when he was just a boy? Hugo mostly just shrugs. He hopes vaguely that if he gets a college degree he’ll know what to do. We’d despair that Hugo is unable to help his people, except that buried in the middle of the film, mentioned almost in passing, we learn that he helped with two intriguing projects: creating a map of the Cofán’s traditional territory using oral histories to assert land rights, and leading grassroots restoration of polluted areas. But instead of exploring that, we get a lengthy montage of Hugo’s family seeing America for the first time, complete with waving on the Jumbotron at a baseball game and piling into the SUV for a trip to McDonald’s.

In David’s case, I want to know how he has gone from describing the development of oil in Ecuador as “an indirect genocide” to inspecting an extraction site and nodding sympathetically as the PetroEcuador manager says “there’s always going to be some impact.” After defending Equitable Origin in an interview with a journalist, he seems genuinely uncomfortable with his evolution from idealist to pragmatist. Then we get a clip where he jubilantly unboxes some Equitable Origin golf balls for promoting his certification and that’s about it. Are oil companies signing up? Are Indigenous peoples happy with the standards? Are they leading to positive change?

Maybe that’s just how life is. No easy answers, no tidy story arcs, lots of loose ends. Maybe the filmmakers ran out of time to explore the issues more deeply and had to just ship the DVD. Either way, the movie tells a good story and if it makes you, like me, curious about what happened next with David and Hugo, then it has done its job.

Oil and Water directed by Francine Strickwerda & Laurel Spellman-Smith, USA/Ecuador: Stir It Up Productions, 2014, 77 minutes.

Book a screening of Oil and Water through BullfrogCommunities.com. Bullfrog handles the Canadian rights for most of the offerings on their site and definitely for this film. 

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