Part II – keep it in the ground (why market based solutions can’t save us)

Part I discussed Vista Coal in Alberta, and the federal refusal to conduct an EA. Like TMX, this is presumably based on the notion that the emissions will be regulated in the jurisdiction where the fossil fuels are burned.

This supports an endless shell game that allows the world to keep producing fossil fuels, blaming each other, and emissions continue to rise. In reality what it means for this coal is that it could end up being burned in many nations, some of which have a carbon tax or other policies in place, most of which do not.

Let’s first be clear – carbon taxes / cap and trade / market mechanisms, are better than nothing, and have generated some good results in some jurisdictions. I would argue that one of their key benefits in federal-state systems, like Canada, is that they are an opportunity to establish that the federal government has authority to regulate emissions (yet to be determined in Canada by the carbon tax reference cases (see my reflections on those here)).

Some of the issues with a carbon tax, and reasons that it has not realised hoped for results, are found here, where the authors point out that they are seen as the most “efficient” mechanism (I am about to argue otherwise, but it doesn’t change this point);

We question whether efficiency should be an overriding priority of climate policy. If we are to limit global warming to less than 1.5 °C, there is little time remaining to reach carbon neutrality (9). The negative impacts of climate change are already undermining human prosperity and the cost of inaction will escalate the longer we wait (10). Despite the urgency of the problem, carbon pricing places considerable weight on seeking low-hanging fruit and, according to Patt and Lilliestam, fails to appreciate that “we must eventually pick all of the apples on the tree” (11). Furthermore, as of 2019, existing carbon pricing schemes only cover about 20% of global emissions and more than two-thirds of these have prices below $20 United States dollars (USD) per ton of CO2 equivalent.* This is far too low to be effective and increasing coverage and prices presents serious challenges, which we return to below.

They also point out the drawback of this universalist approach;

Carbon pricing strategies tend to be predicated on the notion that, eventually, all emissions are covered so that all prices will be corrected such that no economic decision would escape carbon pricing’s regulatory impact (2). This means that all jurisdictions and economic sectors should be included, ideally with uniform price signals (6). In the absence of uniform pricing, there is a risk that some nations will free-ride on the efforts of others and that firms will relocate to places with lower or no carbon prices (i.e., “carbon leakage”).

Three issues confront this universal approach. First, the required levels of coordination and cooperation are unrealistic, as carbon pricing encounters a fragmented international climate policy landscape (20). In the absence of a global sovereign and considering the great diversity of national circumstances (where countries have different responsibilities for generating the problem, vulnerabilities, and resources to adapt and support mitigation), cooperation or convergence among emission pricing frameworks remain elusive. Second, a universal approach will require well-functioning institutional structures and high levels of regulatory competences and monitoring systems, which do not exist everywhere. Third, carbon pricing strategies tend to ignore that policies need to be tailored to local and/or sectoral contexts in order to address specific sources of lock-in and opportunities for innovation.

The authors go on to propose a wise and well thought out program, “sustainability transition policy” (STP), which “is predicated on the notion that a low-carbon transition will involve multiple and co-evolving social and technological changes” and is described as “STP emphasizes the rapid and effective reduction of emissions, system transformation and radical innovation, the development of context-sensitive responses, and the inherent political nature of decarbonization.”

STP is promising, but there is an even simpler answer: keep it in the ground. If a nation commits to reduce GHGs by 5% per year, they reduce their fossil fuel production by that amount. There are no loopholes, no trade-offs, no caveats – just results. The result of such a policy is GHG production declines.

There is a market element to it in that as supply diminishes the price of fossil fuels may rise – that’s great – then renewables become more competitive, eventually being the obvious choice, and their scale up will take on a life of it’s own.

This may seem simplistic, but you would think the problem that “we are putting too much carbon into the atmosphere” would have a simple solution: make less.

The next post will deal with how to write this into international agreements.

 

 

Vista Coal – another federal betrayal of present and future generations (Part I)

On December 3rd, 2019, Canada opened their factum to the SCC in the Saskatchewan carbon tax reference appeal with;

1. Global climate change is an urgent threat to humanity. Greenhouse gases (GHGs) in the atmosphere enable global warming, causing climate change and creating national and international risks to human health and well-being. GHG emissions cannot be contained within geographic boundaries. Their deep and urgent reduction requires an integrated pan-Canadian and international approach to prevent significantly worsening consequences of climate change.

In October, 2019, the same federal government declined a federal review of the proposed expansion of the Vista Coal Mine in Alberta. According to Global news the Minister of environment and climate change, Jonathan Wilkinson, said;

… the Coalspur Vista Coal Mine project just east of Hinton in western Alberta doesn’t need to be designated for federal review because it is subject to the provincial environmental assessment process.

He adds issues of federal jurisdiction will be covered through other regulatory processes and, if the project proceeds, it will be subject to federal regulation

Ecojustice called it hypocrisy, and that is exactly what it is. What can be done? Well, litigation, of course. And Ecojustice is doing that too.

This is the same argument that was used regarding TMX – that the fossil fuel will be burned elsewhere, and they can count and deal with the emissions. As Clark Williams-Derry, a Seattle-based energy finance analyst with the Institute for Energy Economics and Financial Analysis was quoted in the Narwhal, “It’s like getting a temperance lecture from the bartender,” “As he’s pouring the drink, he’s saying ‘you really shouldn’t be drinking so much.’ ”

Is there a better solution?

 

Carbon tax cases – timing and importance

The Canadian carbon tax cases are important because they are fundamentally about the federal government’s power to regulate climate change on a national scale. The Greenhouse Gas Pollution Pricing Act, SC 2018, c 12 (GGPPA), the subject of dispute, sets up a federal carbon tax, and (this is the disputed part) imposes a carbon tax on provinces which are not taking sufficient measures of their own.

Let’s be realistic, a carbon tax is not going to save the world, or save us from climate destruction. It’s a step. It is also not going to bankrupt Alberta, ruin the oil and gas economy, or cause the sky to fall. The oil and gas economy is already effectively on life support and the question of its resuscitation, or not, is addressed elsewhere. So why is it such a focus of ideological dispute between some provinces and the feds?

This case will determine whether the federal government can take national action to mitigate climate change, most importantly whether the feds can impose measures on the provinces. Without being able to do so, and with the provinces having jurisdiction over many heads of power which are critical to dealing with climate change (such as the management of public lands, timber and wood, and most importantly property and civil rights, it is not clear that the federal government could even reach their Paris commitments if they wanted to (still an open question).

These cases will give us a preview of the extent and depth of the federal legal capacity to regulate climate change and meet present and future international legal commitments.

The CASES

Saskatchewan: The Saskatchewan Reference was heard in February 2019, and the Saskatchewan Court of Appeal issued its decision on May 3, 2019 (Reference re Greenhouse Gas Pollution Pricing Act, 2019 SKCA 40 (CanLII)). The Attorney General of Saskatchewan filed a Notice of Appeal at the Supreme Court of Canada on May 31, 2019.

The SKCA opened its judgement with this, upholding the carbon tax:

4 The factual record presented to the Court confirms that climate change caused by anthropogenic greenhouse gas [GHG] emissions is one of the great existential issues of our time. The pressing importance of limiting such emissions is accepted by all of the participants in these proceedings.

Ontario: The Ontario Reference was heard in April 2019, and the Ontario Court of Appeal issued its decision on June 28, 2019 (Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544 (CanLII)). The Attorney General of Ontario (“Ontario“) filed a Notice of Appeal at the Supreme Court of Canada on August 28, 2019. All of the case documents, and video of the proceedings, can be found here.

The ONCA said, also in upholding the carbon tax;

[3]         The Act is within Parliament’s jurisdiction to legislate in relation to matters of “national concern” under the “Peace, Order, and good Government” (“POGG”) clause of s. 91 of the Constitution Act, 1867. Parliament has determined that atmospheric accumulation of greenhouse gases (“GHGs”) causes climate changes that pose an existential threat to human civilization and the global ecosystem. The impact on Canada, especially in coastal regions and in the north, is considered particularly acute.

[4]         The need for a collective approach to a matter of national concern, and the risk of non-participation by one or more provinces, permits Canada to adopt minimum national standards to reduce GHG emissions. The Act does this and no more. It leaves ample scope for provincial legislation in relation to the environment, climate change and GHGs, while narrowly constraining federal jurisdiction to address the risk of provincial inaction.

And aptly quoted the Paris Accord to say;

[6]         Climate change was described in the Paris Agreement of 2015 as “an urgent and potentially irreversible threat to human societies and the planet”. It added that this “requires the widest possible cooperation by all countries, and their participation in an effective and appropriate international response”.

Alberta: The Alberta Reference was heard on December 16, 17, and 18, 2019, and the Alberta Court of Appeal issued its decision on February 24, 2019 ( Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 (CanLII)). British Columbia filed a notice of appeal on March 25, 2020.

The ABCA opened very differently, signalling at the start that they were finding the carbon tax unconstitutional;

[1]               Calls to action to save the planet we all share evoke strong emotions. And properly so. The dangers of climate change are undoubted as are the risks flowing from failure to meet the essential challenge. Equally, it is undisputed that greenhouse gas emissions caused by people (GHG emissions) are a cause of climate change. None of these forces have passed judges by. The question the Lieutenant Governor in Council referred to this Court though – is the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12 (Act) unconstitutional in whole or in part – is not a referendum on the phenomenon of climate change. Nor is it about the undisputed need for governments throughout the world to move quickly to reduce GHG emissions, including through changes in societal behaviour. The federal government is not the only government in this country committed to immediate action to meet this compelling need. Without exception, every provincial government is too.

University of Ottawa professor Nathalie Chalifour gives an excellent and very in-depth preliminary discussion here and Chalifour wisely notes that “[t]his question has many dimensions, including the scope and applicability of multiple heads of powers, such as the national concern and emergency branches of the residual peace, order, and good government (POGG) power, taxation, criminal law, and the trade and commerce powers.”

Chalifour’s article was before the ABCA case was merged, however, and the ABLawg gives a great analysis of the later Alberta decision here. There are many other excellent analyses of the cases, including from an Indigenous feminist legal perspective, and an argument for climate change as a sui generis area of law.

When will they be heard?

The Saskatchewan and Ontario Appeals were originally tentatively scheduled to be heard in December 2019 and then January 2020. This was adjourned to March 24 and 25, 2020. These dates were in turn adjourned tentatively to unspecified dates in June 2020 because of the Covid-19 pandemic. The cases are now all tentatively scheduled to be heard by the SCC in September via live webcast. Since you’re not in live court, popcorn is welcome in this highly technical, but high-stakes hearing. It will be interesting to watch counsel for each of the 3 AGs – whether they open/close arguments with the big picture, or the technical.

Thoughts on safely letting the oil and gas industry die

As a starting premise is this article title, “The world is on lockdown. So where are all the carbon emissions coming from?” We are flying less, driving less, and yet emissions have barely come down to the point they need to stay at to possibly meet the inadequate Paris targets.

Massive oil and gas bankruptcies were already predicted before Covid-19. This piece back in December, 2019, said a “bankruptcy boom has hit the oil and gas industry, and it’s just getting started.” Then, earlier this month there was an oil price war resulting in an international agreement from a number of OPEC and key oil producing states to cut production. And now, as of April 22nd, there are oil tankers (ships) holding 22 million barrels of stranded crude oil parked all over the world..

So what will become of the oil and gas industry, and what will become of us? Even with all this oil stranded we have not cut emissions enough. Of course governments are tempted to prop them up, and there have been some bail outs already, but they should not do more, they should let them go bankrupt.

People will argue that they shouldn’t because if they do then the government/taxpayer will have to clean up all those abandoned oil wells and toxic sites, but the truth is, they will anyway, as proof – the federal government just committed $1.7 billion to clean up orphan wells.

People will argue that there are too many jobs at stake. But the above orphan well clean up is good job creation, as is renewable energy. There are lots of better ways to create jobs.

People will argue that we still need oil and gas to run many aspects of the economy. This is true. But government can do that to a degree, where industry does not, as we have seen them do with both the TMX purchase, and their management of covid-19.

If oil and gas companies are allowed to fall the assets will still exist (wells, trucks, machinery, etc.) – the crown may as well pick up the positive with the negative (orphan wells / contaminated properties), and anything that doesn’t escheat to them they can buy for a song. Then they can operate it only as long as necessary, and shut it down when the time is right (as soon as possible).

People will argue that there is a danger the government will operate it for too long, and cling to it out of ideology rather than need. This is the biggest danger with such an approach. But is it really that different from the government buying any project they feel is “in the public interest,” like TMX?

Also, letting them die sends a signal to the world – that it’s time to embrace the new.

 

 

 

 

Spring 2020 update on the federal Emergencies Act

We are now living amongst the terror and sadness of a global pandemic – Covid-19. Yesterday, after a phone call between the PM and the Premiers, the federal government officially decided, on pressure from the provinces, not to use the federal Emergencies Act (R.S.C., 1985, c. 22 (4th Supp.)). That leaves it as still having never been used since it was passed in 1988, replacing the War Measures Act. 

The War Measures Act was used three times – to intern Canadians in WWI, WWII, and during the October Crisis in 1970. The last use, by Trudeau senior, gave it a bad rap (the first two did as well), and after the Charter was passed it no longer seemed to fit the Canadian legal ecosystem, so it was repealed and the Emergencies Act passed, which is supposed to accord with the Charter.

Regardless – it is clear that its potential use is not popular with the provinces, as it is fairly likely to intrude on provincial jurisdiction. BC Premier John Horgan said yesterday that it was a “distraction” and a waste of time. It was also clear that the Emergencies Act is considered a stop-gap measure, to fill in the blanks when there is a failure of national co-operation, or provinces fail or are unable to do their part, Trudeau said in a briefing afterwards;

“We are seeing that the collaboration, the partnership among provinces and territories and the way we’re moving forward on this means that we might not ever have to use the Emergencies Act and that would be our preference.”

This post, by Adrienne Smith, lays out some of the powers the federal government can access under the Emergencies Act;

… Cabinet has the power to evacuate, remove, requisition, direct and dispose of person and things. It can force the establishment of hospitals and shelters – for 90 days. People can be directed to render essential services. This declaration allows for the payment of benefits and support to people who are affected – through Employment Insurance, the CERB and as transfers to the provinces. Various enforcement tools are created, including fines and imprisonment.

Those are extensive, and if the federal government were to use the Emergencies Act regarding climate change they would have considerable powers to deal with it. This post builds on one from last year – Can governments declare a “Climate Emergency”? – the powers under the Act are listed in s. 8 of the Act, and discussed in last year’s post in more detail.

The Act itself mentions “accident or pollution” (s. 5(c)), under “Public Welfare Emergency,” as one of the bases on which to declare an emergency.  Certainly climate change qualifies as pollution. 

In order to really get the answer regarding the question of whether the federal government will ever use the Emergencies Act regarding climate change we can look at two things; 1) the provincial resistance to it, as an encroachment on their spheres of ppower, 2) it would have to be in a situation of complete provincial failure to deal with the problem (which is arguably the case for most provinces), and 3) look at the resistance to the carbon tax, which is also predicated on a failure of the provinces (in order for it to be applied there (to be discussed in a coming post)).

The result? It will have to be very dire circumstances for the federal government to ever consider invoking the Emergencies Act in relation to climate change, including a complete failure of one or more provinces to deal appropriately with those very dire circumstances. It is unlikely to happen any time soon.

3 climate lessons from Covid-19

  1. Suffering sucks. Every person that dies is someone’s loved one, the loss of whom will leave them grieving, possibly needing counselling, or years to digest and reconcile. Loss, pain, tears. Suffering sucks. The numbers of dead are not numbers – they are permanent and negative changes – losses of resources, knowledge, personal and family history, connection and support.
  2. Listen to the warnings. We were warned. We saw it happening in China, spreading out from there. Governments, and people, were slow to react. Instead of listening to the warnings many people believed when they heard someone mumble that it was really just another flu, or that the warnings were overstated. Some used such talk for political leverage.
    We have been warned on climate change. We have not listened.
  3. We have tools, but they are more effective if used early. There is currently less suffering, and more confidence, in places where tools were deployed quickly. Some of those tools have been quarantining, testing, financial and economic measures to support those who respect the request/order not to go to work, ticketing-fines-jail for those who break the rules, and government money into projects that help.
    On the climate front we are late, very late. But, to quote an old english poem, “time still succeeds the former..”
    There are legal, policy, and cultural tools at our disposal. A previous post covered some of the things the Canadian government can do with the Emergencies Act regarding climate change (and there’s another post to come). But some clear examples of legal tools that could be used now regarding climate change, to reduce the impacts, are; financial and economic measures to support transitioning oil and gas workers, and supporting those who are hurt by a transition to a low-carbon economy, ticketing-fines-jail for those who break the rules, and government money into projects that help – solar and wind farms, tidal, geothermal, planting trees, and research and development.
    Some policy options, of many, are leaving oil and gas in the ground – no new projects, and wind down current ones, and completely change how forestry, agriculture and fisheries are conducted to maximise carbon storage.

    Climate change, on the path we are on, is going to cause far greater human suffering than Covid-19. Once the bad part really starts, there will be no turning back, and it will be too late to effectively wield the tools we have. To reduce human suffering we must listen to the warnings and use the tools we have now.

Teck: post-mortem – (they got the message, should we get theirs?)

Teck’s mega “Frontier” oilsands mining project is dead, abandoned by its owner, Teck Resources, on February 23, 2020. Why? Global News said a few days later,

[i]t’s still not entirely clear what led Teck Resources to withdraw its proposed Frontier oilsands mine, nor is it clear why that decision came just days before we were to learn whether Ottawa would approve the project.

There’s not likely a single explanation to all of this, but the company’s deliberately vague announcement left the door open for others to fill in those blanks with their own spin

But the reasons are not really that mysterious. Teck CEO and president Don Lindsay wrote that they had “unprecedented support from Indigenous communities” and the project “was deemed to be in the public interest by a joint federal-provincial review panel following weeks of public hearings and a lengthy regulatory process,” and that the project was “commercially viable.”

But he listed as their key reason, “..global capital markets are changing rapidly and investors and customers are increasingly looking for jurisdictions to have a framework in place that reconciles resource development and climate change, in order to produce the cleanest possible products.”

And went on to wisely say, “[u]nfortunately, the growing debate around this issue has placed Frontier and our company squarely at the nexus of much broader issues that need to be resolved. In that context, it is now evident that there is no constructive path forward for the project.”

So, he essentially said that markets are changing due to climate change, and Alberta/Canada are not addressing that sufficiently, and they don’t want to get in a big public dispute over it. That’s pretty clear, and reasonable. They probably had their lawyers and advisors look at Northern Gateway, Energy East, Keystone XL, and Trans-Mountain. They probably got advice that they were in for a huge battle, which would be very expensive, they were not sure to win, and they definitely would not win the PR side of it. Good advice.

Perhaps most insightful is that a few days later Teck bought  “SunMine Solar Energy Facility.” They bought a solar farm. At the same time JP Morgan has pulled out of big oil funding Teck has sold the past and bought into the future, policy be damned. Industry is giving up on big oil and gas.

This hasn’t just happened overnight. In September 2019 CNBC posted an article “Climate change: Did we just witness the beginning of the end of Big Oil?” There have been many others like it. The CNBC article made these two key points:

  • The energy sector is notorious for booms and busts, but oil and gas stocks’ weighting in the S&P 500 has not been this low since as far back as 1979.
  • Investors have lost faith in oil companies, but it is not yet clear whether that is a permanent change caused by fear of increasing advances made by renewable-energy sources like wind, solar and electric batteries, or a temporary reluctance to invest caused by low oil prices.

Well, if it wasn’t clear in 2019 it certainly  must be after recent news. A March, 2017 Environmental Defence article titled “Seven oil multinationals that are pulling out of Canada’s tar sands” and said that “[l]ast week brought big news that Royal Dutch Shell, one of the world’s largest multinational oil companies, would sell off its Canadian tar sands assets.”

That’s right, let’s not forget Shell’s withdrawal in 2017, which Environmental Defence attributed to, “low oil prices, stronger policies to fight climate change, and the accelerating global shift to renewable energy make the tar sands uneconomical.”

This again calls into question government funding and support for the oil and gas industry. If Teck’s Frontier mine isn’t viable, should we be putting government money into TMX, subsidies? Arguably Teck’s withdrawal makes oil and gas subsidies that much more questionable – should we be using government money to prop up a dying, or transforming, industry? When Teck said they are “looking for jurisdictions to have a framework in place that reconciles resource development and climate change” and then bought a solar farm – doesn’t that imply government money should be going into renewables, not oil and gas?

Does this also say that those who have been fighting against new oil and gas projects, whether they experienced success or failure in each instance, have contributed to shaping the context in which project decisions are made?

The writing is on the wall.

Written Submissions regarding changes to old growth management in British Columbia in the context of a global climate emergency

The following is a copy of my written submissions today to the British Columbia Old Growth Strategic Review:

The Saskatchewan Court of Appeal (“SKCA”) recently said that “climate change caused by anthropogenic [GHG] emissions is one of the great existential issues of our time.” Old growth forests are critical to our survival in the context of a global climate emergency.

I am a lawyer, have certificates in international and environmental law, and have worked in environmental law for over 10 years. Before law-school I graduated in the top of my class with a Forest Technician diploma from the Maritime Forest Ranger School, now the Maritime College of Forest Technology. I recently returned there, in 2016, to give the graduation address. I have worked for the federal government, and the Ministries of Environment and Natural Resources in the Ontario provincial government. These are my submissions on BC’s review of its old growth policy.

We have known since 1990 or before that old-growth forests store more carbon, and when they are cut that storage capacity is lost for hundreds of years. A dissenting Court of Appeal Judge recently wrote, in the United States “Juliana” case (where youth are attempting to sue the government to force them to take action on climate change), of the situation regarding our climate;

In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity.  It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.

The same can be said of Canada and British Columbia. Old-growth forests are a critical defense against climate change, both for mitigation and adaptation. They not only store carbon, but are more fire-resistant, regulate water supplies, and provide food in a number of forms – plants, wildlife, and healthy fisheries.

BC’s old-growth strategy is effectively shutting down this line of defense. That must change. Please stop all old-growth logging immediately.

We need new rules for a new era

We are in a climate emergency, and global biodiversity is collapsing. In 2018 Greta Thunberg said, regarding oil;

Today we use 100 million barrels of oil every day. There are no politics to change that. There are no rules to keep that oil in the ground, so we can’t save the world by playing by the rules because the rules have to change. Everything needs to change and it has to start today.

Although she was speaking about oil, it is equally applicable to old growth forests. Business as usual means surrender to disaster.

The entire forestry system has to shift to long term investment in our environment, culture, and green jobs. For starters, forestry must be regulated again – not just old-growth, but that is a good place to start. Professional reliance, a key tenet of natural resource management under a neo-liberal worldview, has failed.

Create good green jobs

BC is currently giving millions and millions in subsidies to LNG, reflecting that the province is perfectly capable of spending money to support certain industries. Regarding old growth BC should spend money on protecting areas, and real jobs in forestry. Those could be in science, research, carbon storage, managing our old growth forests, planting new trees, protecting old-growth, and food production.

Forest managers, scientists, rangers, firefighters, tree planters, and forest Guardians – are all good jobs.

Focus of old growth management: carbon storage, fire protection, culture, biodiversity, and water

Old growth is critical to our survival. We are in a climate crisis and old growth stores carbon and protects us from the worst effects of climate change. We are in a biodiversity crisis and old growth supports biodiversity. Yet, we are logging the last of it. It must stop. Not only does old growth store carbon, it also buffers against fires, regulates and cleans water, and is critical to First Nations culture, and tourism.

BC has an opportunity to shift to managing old growth for other interests; wildlife, carbon storage, water, recreation, culture, and global survival.

We all must do our part

BC also has a chance to learn from the people who have lived here for millennia. Joe Martin, Tla-o-qui-aht Master Carver, and former logger, recently wrote, in regard to this review and old growth logging;

Our people practised for abundance rather than “sustainability.” To me, sustainability means keeping our natural resources on a lifeline until they’re eventually gone or until industry has finally had enough and moved on. Practising for abundance is making sure that your grandchildren won’t have to work as hard as you did. It’s ensuring that when we leave this garden for them, they will have everything they need.

This should be part of any new old growth policy. We should manage our forests for abundance, not bare survival. If we do so that may help buffer them, and us, against the coming impacts of climate change.

First Nations should have a veto

There is considerable debate about whether UNDRIP means Indigenous Peoples should have a veto over decisions regarding their traditional territories. In my view they should, but I understand government is not ready yet to embrace that. The B.C. Declaration on the Rights of Indigenous Peoples Act is a good start, although there is still much work to be done.

Regarding old growth, however, a veto would be a significant management simplifier, would result in more protection, and would reduce conflict. It would also reduce litigation over this issue, including the incredible expense of that to both the province and First Nations.

First Nations should have a veto over any logging of old growth in their traditional territories. Considering the history of disputes over this issue, the tie-in with colonialism, the commitment to reconciliation, and the ongoing cultural and economic importance of old growth forests to First Nations, this is an obvious potential positive.

Closing

Each generation takes the earth as trustees.  We ought to bequeath to posterity as many forests and orchards as we have exhausted and consumed.

 J. Sterling Morton

Please put a moratorium on all old growth logging. Take the time to design a new forestry model – heavy on regulation, on-the ground jobs, both public and private, no shipment of raw logs out of BC, and manage for long term well being of the economy and environment on which we all depend.

If that is not possible then at least design a new way of dealing with old growth – precautionary, careful, selective, favoring green jobs, First Nations, and in consideration of our global climate and biodiversity. We all must do our part.

Give First Nations a fair voice in what is theirs, as a step toward healing for all of us. We will need these forests, they don’t belong to us – but to the future, and they are too important to lose.

Thank you,

Patrick C. Canning

 

 

SCC confirms the Canada v BC TMX reference case, but misses the rising tide..

Did the SCC get it right technically, but miss the rising tide on factual context?

On January 16, 2020, the Supreme Court of Canada (SCC) refused British Columbia (BC)’s request for leave to appeal their loss at the BC Court of Appeal (BCCA) in Reference re Environmental Management Act (British Columbia), 2019 BCCA 181 (CanLII).

The case turned on the division of powers, sections 91 and 92 of the Constitution Act, 1867, with Justice Rowe saying at the hearing on January 9, 2020 ‘[t]oday it’s heavy oil, tomorrow it could be anything else..”

The SCC is technically correct about division of powers, and the factual circumstances were brutal for contracted BC lawyer Joe Arvay O.C., Q.C., one of the top Constitutional lawyers in the country. The fact that the BC Premier, John Horgan, had promised in the 2017 election campaign “to use every tool in our tool box” to stop the construction of the Trans Mountain pipeline expansion (TMX) didn’t help BC any, who then had to try to argue that the impugned measures were not in fact designed to block just the TMX (which would clearly be unconstitutional), but were of a general purpose to protect the environment in keeping with BC’s constitutional jurisdiction under the Constitution Act, 1867.

Apparently the SCC Justice’s pushback was so clear that Arvay conceded by late afternoon he wasn’t likely going to win.

At the BCCA Justice Newbury summed up the issue as follows;

[1]           The protection of the environment is one of the driving challenges of our time. No part of the world is now untouched by the need for such protection; no government may ignore it; no industry may claim immunity from its constraints. This reference is not about whether the planned Trans Mountain pipeline expansion (“TMX”) should be regulated to minimize the risks it poses to the environment — that is a given. Rather, this reference asks which level or levels of government may do so under our constitution, specifically ss. 91 and 92 of the Constitution Act, 1867. [1] British Columbia asserts that it may regulate the pipeline in the interests of the environment — not exclusively, but to the extent that it may impose conditions on, and even prohibit, the presence of “heavy oil” in the Province unless a director under the Environmental Management Act issues a “hazardous substance permit” under the proposed addition that is the subject of the reference.

BC argued that regulating the presence of bitumen and heavy oil fit under the headings of “property and civil rights” (92(14)) and “Matters of a merely local or private Nature ..” (91(16)), and the principle of “subsidiarity,” which the BCCA described as the principle that “on occasion that certain functions are best carried out by the level of government closest to the citizens affected.”

Canada argued that the matter related to ““Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province” s 91(29) and 92(10)(a) ..

It is true, and an easy point for Crown lawyers to defend, that interprovincial works are a federal head of power. But, as Peggy Lee sang in 1969 – is that all there is?

Ecojuctice lawyer Harry Wruck, QC, argued that “[w]ithout a viable environment we cannot have a Constitution, we cannot have a nation based on laws, we cannot have institutions, we cannot have a society..”

BC chose to argue the case on the basis that BC was not opposed to oil, but just worried about spills, saying “[t]he only concern the premier, the attorney general and the members of the government have had is the harm of bitumen. It’s not about pipelines. They’re not anti-pipelines, they’re not anti-Alberta, they’re not anti-oilsands, they’re not anti-oil…”

Was that the best strategy? BC’s unfortunate support of LNG and other oil and gas projects made it the easiest path to take, as did the facts of how the law was designed and drafted. But what if they had taken the other strategic path, and argued that they were in fact blocking this pipeline, that they were anti-pipeline, they were, in fact “anti-oil,” because – we are in a climate emergency, and it is the provinces Constitutionally mandated duty to protect property and civil rights, both of which will be directly impacted by the effects of climate change flowing from TMX?

They could have argued that the provinces also have a Constitutionally mandated duty to manage “Public Lands belonging to the Province and of the Timber and Wood thereon,” – which will equally be impacted and undermined by the climate impacts of TMX. How can the province manage forests that are burning, underwater, or dying of drought? By stopping the TMX, that’s how. They would have had to also argue that the feds have failed, regarding TMX, to take into account Canada’s international commitments under Paris, and our moral and legal duty to reduce emissions – a pretty easy branch of the argument to prove.

Would taking that strategic path have improved their chances of winning? Probably not – their chances would have gone from zilch to zilch. But would it have forced the courts grappling with the Reference to deal with the core issues? Possibly.

SCC Justice Rowe was also quoted as saying, regarding the economic impact of the court ruling in BC’s favour, “[t]here will be nothing. The uncertainty will kill the business case” (of projects across Canada).

What if the province had also made the economic argument head-on: that climate impacts are the issue, it affects all heads of power, both federal and provincial, and that the long-term business case for allowing climate change to continue to worsen favours allowing BC to regulate its climate.

The dissent in the recent Juliana case (to be subject of another post) makes the argument, and shows that judges can accept it –

… the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity.  It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.

Regarding TMX the line could read, “[i]t is as if an asteroid were barreling toward Earth and the government decided to buy and operate a chunk of asteroid to add to it..” (while at the same time wringing their hands about how terrible it all is, and committing to do something to stop it… ).

Our 1867 Constitution never imagined we could destroy the whole Earth.. the law must adapt. As the SCC said in Hydro-Quebec the law must “be able to keep pace with and protect our emerging values.”

Unprecedented times.

COP25; “an agreement which accommodates everyone”? Failure, process, and alternatives

In the Friday the 13th COP25 Presidency Press Briefing, Andres Landerretche, Coordinator of the COP25 Presidency, said that they would stay until they had an agreement, and that they were working hard to get “an agreement which accommodates everyone”..

It’s now Saturday night, and according to Elizabeth May on twitter, they are still going. This effort by those trying to reach a deal must be applauded, but is this the right process for today?

It’s not clear who, in the COP25 Presidency statement, is considered to be “everyone,” or should be. If “everyone” is all the delegates, including those who want to hold up the process, then satisfying everyone is a question of how low the bar can go and still satisfy most nations, or conversely how high it can go and still be acceptable to the recalcitrants – Saudi Arabia, Australia, and the United States.

If “everyone” is everyone on Earth, everyone who is impacted, or everyone who will be impacted, and that’s pretty clearly not who he was referring to, then it’s clear that “everyone” will not be accommodated at COP25, or through the resolution regarding Article 6 (carbon markets – a key sticking point).

But, could it be? As Dr. Peter Carter, co-author of Unprecedented Crime: Climate Science Denial and Game Changers for Survival, points out here, every COP session since the first few have been based on full consensus. The world is burning. We are in a climate emergency. And yet, because of the process we have chosen, a few nations who have chosen personal wealth and power over the greater good can entirely bar us from saving ourselves.

Is it time to consider a different process? The Montreal Protocol had teeth – an enforcement mechanism – that trade sanctions could be brought against violators. We need something similar to that, or other enforcement mechanisms. Those who endanger life on earth should be excluded from the economic community of nations in meaningful ways. Or there must be other sanctions which reflect the gravity of their actions. Massive tariffs on oil and gas from non-compliant countries? That would have the four effects of punishing them, rewarding compliant nations (with increased exports), encouraging other nations to become less oil dependant, and accelerating the death of the oil economy.

How do we get there? The easier method is through article 15(2) of the United Nations Framework Convention on Climate Change (UNFCCC), which says that;

The Parties shall make every effort to reach agreement on any proposed amendment to the Convention by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting at the meeting.

So, the UNFCCC can be amended to change the voting procedure/decision-making mechanism, and / or enforcement mechanisms can be added. A lot more can be said on the specifics of this in future posts, and hopefully others will come up with even better ideas. For now all we need to know is that once “everyone” has tried to convince the few recalcitrants, and failed – a 3/4 majority can change the process.

The only problem with that is – the next COP, COP26, is hosted by the UK, who just elected a Boris Johnson Conservative government. While they are likely to be better about climate talks than some other conservative governments might, they are unlikely to take the vanguard position and initiate this level of change.

That leads to another possibility – can the UNFCCC, or the process – be amended by the UN General Assembly? It’s worth looking into. That would be a much more just process.

This is an emergency – let’s act like it.