Tuesday, 15 July 2014

Supreme Court's Land Claims Ruling Harms Canada's Business Environment

By: Gwyn Morgan, Globe and Mail

Gwyn Morgan is a retired Canadian business leader who has been a director of five global corporations. 

On June 26, the Supreme Court of Canada awarded title to a piece of the B.C. Interior roughly the size of Prince Edward Island to the 3,000-member T'silhqot'in First Nation. Initial government and business reaction characterized the decision as merely a clarification of previous lower-court judgements.

That was before it came clear that the land-claim entitlement criteria set out in the 37-page decision, written by Chief Justice Beverley McLauchlin, exceeded the worst-case scenario of both governments and industry.

Under previous legal rulings, the "basis of occupation" to be used in establishing aboriginal title was limited to the immediate environs around settlements. The Supreme Court has vastly expanded that, saying "[A]boriginal title ... extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources, and over which the group exercised effective control at the time of assertion of European sovereignty" (that is, the mid 1800's). The court justifies this extreme interpretation by stating "... what is required is a culturally sensitive approach to sufficiency of occupation based on the dual perspectives of the Aboriginal group in question ... and the common-law notion notion of possession as a basis for title."

The court has, in effect, established a separate legal structure for aboriginals and non-aboriginals that has implications far beyond land entitlements.

Having established the broad criteria for transforming land claims into formal title, the court defines its nature and limitations, saying "[A]boriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders." The lone exception is when, after consulting and attempting to accommodate, proceeding without consent is backed by "a compelling and substantial objective." In addressing the question of what might qualify as such an objective, the court refers to the 1991 Delgamuukw decision, citing "the development of agriculture, forestry, mining and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign population in support of those aims ..." Because natural gas and oil pipelines are transportation infrastructure, this section may prove crucial to both the LNG projects and the proposed Northern Gateway oil project.

In British Columbia, much of the province is subject to claims by hundreds of aboriginal groups. Consternation about the impact of the top court's ruling on resource development projects was captured by Black Press columnist Tom Fletcher, who asked, "Will British Columbia exist as we know it by the end of this century?"

In a July 6 Saskatoon Star Phoenix column, aboriginal writer Doug Cuthand urges governments to negotiate resource agreements with First Nations "while they still can." But even highly motivated government efforts to do so are unlikely to stop many First Nations from filing for court-ordered aboriginal titles. Unfortunately, the Supreme Court decision encourages such precipitous legal actions: "Prior to establishment of title, the Crown is required to consult in good faith with any Aboriginal groups asserting title to the land ... The level of consultation and accommodation required varies with the strength of the Aboriginal group's claim to the land ..." And how would the "strength" of such claims be determined outside the courts?

As if the resulting uncertainty isn't enough to deter investment in B.C.'s resource-dependent economy, the decision also states, "If the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title..."

The word "consent" appears many times in the judgement, but nowhere does it set out what constitutes consent. Is consent of the chief or band council sufficient? Is the consent of collective band members required? And how many aboriginals living off-reserve might return to be part of that collective? The answers to such questions might have to be settled by the courts, possibly undermining projects that could help First Nations lift themselves out of poverty.

When the Constitution was brought home from Britain in 1982, the sentence, "Existing treaty and aboriginal rights are hereby recognized and affirmed" was added. Three decades and many court cases later, interpretation of those 10 words has become a recipe for investment killing litigation. A windfall for lawyers, but economic poison for the country.

Monday, 7 July 2014

Following the (primarily U.S.) money funding Canada’s anti-oil movement

It is no coincidence that U.S. foundations are funding a multimillion-dollar campaign against Canadian energy.


By: Vivian Krause

Albertan oil has the potential to contribute more than $2 trillion to the national economy over the next 25 years, about $84 billion per year, according to the Canadian Energy Research Institute. Realizing this unparalleled opportunity requires broad-based, public support for pipeline and infrastructure projects that are essential for getting landlocked crude to global markets. For Canada, there is no single economic issue that is more important.
The greatest obstacle to energy infrastructure projects isn’t technical expertise or financial capital; it’s gridlock due to opposition from strong alliances between environmental organizations and First Nations and their ability to attract media attention and stop or stall development. This gridlock has been fomented by the Tar Sands Campaign, a heavily-funded international initiative launched by the Rockefeller Brothers Fund and the Tides Foundation in 2008.
The explicit goals of the Tar Sands Campaign are to stop expansion of the Canadian oil industry, to reduce demand for oil sands crude in the U.S. and to stop or stall pipeline and port construction.
With a new premier and cabinet, Alberta has a timely opportunity to break the gridlock that risks keeping its oil out of global markets. The challenge is to convincingly make the case that industry is trustworthy and committed to meeting the public’s high expectations for protection of the environment. This will not be easy if the Tar Sands Campaign goes on unabated.
Recent developments indicate, however, that the Tar Sands Campaign is likely to continue and to expand. The same groups that oppose Keystone XL and Northern Gateway are now funded to campaign against Energy East, Line 9, Line 67, Flanagan South, the Seaway and Kinder Morgan Canada Ltd.’s TransMountain pipeline expansion. The Sierra Club claims to have more than 94,000 people who are prepared to engage in civil disobedience and risk arrest to block pipeline construction. In the spirit of better understanding and resolving the gridlock that puts global market access at risk, it’s worth taking a look at who funds the Tar Sands Campaign, and why.
Over the past five years, I have gone though more than 100,000 pages of U.S. tax returns and traced more than 2,000 grants from U.S. foundations to environmental and First Nations groups in Canada. Most of my research is based on U.S. tax returns because the Internal Revenue Service requires greater disclosure than the Canadian Revenue Agency.
While the volunteer activists on the front lines of the Tar Sands Campaign are every bit as Canadian as I am, their big funders are not. According to U.S. tax returns and other documents, the Tar Sands Campaign is co-funded by the Rockefeller Brothers Fund, the William and Flora Hewlett Foundation, the Oak Foundation, the Tides Foundation, the Sea Change Foundation, the Marisla Foundation and at least a dozen other foundations – most of which are based in California. These are the big green elephants that have fueled efforts to thwart the development of Canadian oil and gas for more than a decade.
By my analysis, more than a dozen U.S. foundations have granted at least US$75 million between 2009 and 2013 for initiatives that stymie the Canadian energy sector. This does not include grants for general or unspecified purposes nor for large-scale conservation initiatives that aim to put huge blocks of land off-limits to natural resource development.
So, what’s the motivation of the funders? One of the few documents that provide insights into the funding of the climate movement is a strategy paper, Design to Win: Philanthropy’s Role in the Fight Against Global Warming. According to Design to Win, the overarching goal of voter and consumer education campaigns is to create a policy context for a massive shift in investment capital and a billion-dollar market for renewable energy. Without a negative foil of bad press about fossil fuels, it would be much harder to justify the billions of dollars that government has invested in solar and wind.
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It is no coincidence that U.S. foundations are funding a multimillion-dollar campaign against Canadian energy. All of the big funders of the Tar Sands Campaign are members of the Consultative Group on Biological Diversity (CGBD), an umbrella organization created in 1987 by the U.S. Agency for International Development, an agency of the U.S. State Department. Originally, the CGBD’s purpose was to co-ordinate grantmaking in developing countries but over the years, that’s changed. Today, the CGBD has a primary focus on climate and energy-related issues and operates like an industry association for environmental funders, a back-office think-tank and collaboration hub. Membership is by invitation only. As of 2012, the CGBD’s 60 member foundations had more than US$50 billion in assets and combined annual expenditures of over US$3 billion.
In 2000, the CGBD held its annual general meeting in Vancouver and invited David Suzuki and David Schindler to deliver keynote speeches. A report from the CGBD to the IRS reveals that at that meeting, the CGBD established a focus on energy development in “Northern North America” (read: Canada). Speakers “probed the politics of conservation in Canada and offered an introduction to the role of First Nations.”
During the early years, the Rockefeller Brothers Fund received funding from USAID to serve as the CGBD’s secretariat. The Tides Foundation has also been involved in the CGBD for nearly 20 years. Since the 1980s, the Rockefeller Brothers has funded more than 200 organizations involved in the climate movement. One of the many projects that it funds is the Presidential Climate Action Project, which aims to create the climate legacy of President Obama.
With assets of US$700 million, the fund’s annual grant making budget is roughly US$440 million. Since the late 1990s, at least US$10 million has been granted from the Rockefeller Brothers Fund to First Nations and environmental groups in Canada. For example, the Rockefeller Brothers paid US$425,000 (2001-2003) to the David Suzuki Foundation to “organize” First Nations on the north coast of B.C. In 2004, the fund also made a small grant to the Suzuki Foundation “to campaign to support a moratorium on offshore oil and gas exploration” on the B.C. coast.
Last year, funding from outside Canada accounted for less than seven per cent of the Suzuki Foundation’s total revenue but it wasn’t always that way. In the early years when it was getting on its feet, more than half of the Suzuki Foundation’s yearly budget came from U.S. sources, including roughly US$1 million from the Rockefellers.
In 2012, the Rockefeller Brothers Fund paid the New Venture Fund, a Washington, D.C.-based charitable organization “to cap tar sands production in Alberta, Canada, and to reduce demand for tar sands-derived fuels in the United States.” Those telling words were quietly removed from the Rockefeller Brothers’ website shortly after their million-dollar backing of the Tar Sands Campaign was exposed in a Financial Post article published in February of 2013.
Canada’s three largest conservation initiatives are the Great Bear Rainforest on B.C.’s strategic north coast, the Yukon to Yellowstone Initiative (Y2Y) and the Canadian Boreal Initiative. These initiatives seek to block roads, mining, forestry, and oil and gas development on more than one-third of Canada’s national territory.
For all three of Canada’s large conservation initiatives, the main funder is a U.S. foundation. In all three cases, U.S. tax returns reveal that, initially, these initiatives were funded in conjunction with efforts to constrain the oil and gas industry in Canada. For example, the biggest funder of the Y2Y is the Wilburforce Foundation, funded by James Letwin, a co-founder of Microsoft.
Back in 2004, Wilburforce stipulated that the purpose of funding Y2Y was to protect the region “from oil and gas development, through an advocacy campaign that focuses on grizzly bears and critical wildlife habitat,” tax returns say. Since then, the Wilburforce foundation has granted more than US$25 million to environmental and First Nations organizations in Western Canada.
The Yukon chapter of the Canadian Parks and Wilderness Society runs an intense campaign to place the Peel watershed off-limits to industrial development. This became a major issue in the 2011 election and is headed for the territorial courts this July. By my analysis of the budgets for the “Protect the Peel” campaign, available online from the Conservation Alliance, more than 90 per cent of the funding for the Peel campaign is from U.S. sources, including $600,000 for legal fees. A similar funding trend is playing out in British Columbia’s Great Barrier Rainforest.
The William and Flora Hewlett Foundation and the David and Lucile Packard Foundation are said to be the world’s biggest financial supporters of efforts to mitigate climate change. These foundations, both created by the founders of the tech giant Hewlett-Packard, have assets of US$7 billion and US$5 billion, respectively. Each of them gives away roughly $300 million per year. Indeed, the environmental groups funded by these foundations are tapping into deep green pockets.
The Hewlett Foundation and the Packard Foundation have also provided substantial funding to shape U.S. energy policy and foster U.S. energy security through a suite of organizations including the Bipartisan Policy Center, Securing America’s Future Energy, the Apollo Alliance and others.
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Along with the Rockefeller Brothers and the Gordon and Betty Moore Foundation, the Hewlett Foundation and the Packard Foundation provided more than US$100 million for the creation of the Great Bear Rainforest on the north coast of B.C., an enormous park-like, no trade zone that’s twice the size of Switzerland.
In the name of protecting the Kermode bear, a rare, blonde bear known to First Nations as the spirit bear, the Tar Sands Campaign seeks to block oil tanker traffic off B.C.’s entire north coast, and yet the traditional habitat of the Kermode bear is only a small fraction of this area. In effect, the Great Bear Rainforest has become the Great Trade Barrier to Asia.
The Tar Sands Campaign pointedly ignores the dozens of tankers bringing foreign oil into the United States and Eastern Canada on a daily basis. Evidently, the only tankers this campaign opposes are those that would break the U.S. market’s monopoly on Canadian oil exports.
The lead organization in the Great Bear Rainforest Initiative is the Tides Foundation, the same organization that co-ordinates the Tar Sands Campaign. It is interesting to note that during the same years that Tides began spearheading this initiative, the U.S. Tides Foundation was also running the Apollo Alliance, a significant project to promote renewable energy and enhance U.S. energy security.
The size of the proposed Great Bear Rainforest has been markedly expanded since it was first proposed. As shown in the Rockefeller Brothers Fund’s 1999 annual report, the original proposed area was only a small part of the north coast of British Columbia, referred to as the “Big Bear Protected Area.” Today, environmental groups argue that the entire north coast must be shut off to oil tanker traffic, from the north tip of Vancouver Island to the southern tip of Alaska.
Each year since 2011, the Hewlett Foundation grants a total of roughly US$150 million for environment and energy-related causes, up sharply from just a few years ago. This foundation is no fan of Canadian oil. In an interview posted on its website, a former environment officer refers to the Alberta oil industry as “a nasty business” and “a major contributor to global warming.”
Over the past decade, the Hewlett Foundation has granted at least US$47 million for campaigns and conservation initiatives that seek to reduce fossil fuel development in Canada and the western U.S. That includes US$20 million granted to the Pew Charitable Trusts for the Canadian Boreal Initiative. Putting land off-limits by creating parks or conservation areas is a key strategy of the Hewlett Foundation approach to reducing fossil fuel development. Call it strategic parkification.
Earlier this year, Hewlett increased its monthly funding for the Canadian Boreal Initiative to US$250,000, up by US$100,000 from the previous year. Simultaneously, this U.S. foundation also pays the equivalent of US$180,000 per month to the New Venture Fund to reduce fossil fuel development internationally. New Venture runs the Dirty Oil Sands campaign, the so-called Tar Sands Solutions Network and ReThink Alberta, a campaign that asks tourists to stay away from Alberta so as to pressure the Alberta government to clamp down on the oil industry.
The Gordon and Betty Moore Foundation, also a member of the CGBD, has granted at least US$130 million to environmental groups in British Columbia. The grants include at least US$30 million for a marine planning initiative, which covers the Great Bear Rainforest coastline, and US$30 million for projects in the area covered by the Sacred Headwaters Initiative.
The Pembina Foundation and the Pembina Institute have received nearly US$7 million from American foundations, including six that fund the Tar Sands Campaign. Some of Pembina’s grants are revealing. For example, in 2006 and 2007 the Rockefeller Brothers Fund paid Pembina US$100,000 “to prevent the development of a pipeline and tanker port that endangers the Great Bear Rainforest protected area.”
The top recipient of U.S. funds for campaigns and conservation initiatives that thwart the Canadian energy sector is the Tides Foundation, which established itself in Vancouver in 1993. In 2003, records show that the Tides Foundation changed its name to Tides Canada Foundation.
Tides Canada has all but denied that it is part of the Tar Sands Campaign. “This myth of huge amounts of American funding coming through Tides Canada to oppose the oil sands is exactly that: It is a myth,” a representative of Tides Canada told the Canadian Senate in a 2012 hearing. Tax returns and other documents tell another story.
Over the past decade, U.S. foundations have granted Tides Canada more than US$100 million for environmental and other initiatives. These funds have been re-granted to Canadian environmental and First Nations organizations or spent on Tides’ in-house activities. The lion’s share of Tides Canada’s grants goes to a small number of organizations that operate on the north coast of B.C.
Out of its U.S. office, the Tides Foundation has paid at least US$25 million (between 2009 and 2013) to more than 75 environmental and First Nations groups involved in the Tar Sands Campaign. In a series of more than 2,700 covering letters on payments that came to light in a Google search in November 2013, it appears that Tides Canada has been transferring funds from the U.S. Tides Foundation to Canadian charities active in the Tar Sands Campaign. According to the covering letter for one payment made in October 2013, the U.S. Tides Foundation paid Tides Canada US$15,000 for re-granting to the Sierra Club “to strengthen opposition to tanker expansion on the B.C. coast.” In a July 2013 payment, Tides Canada Foundation was paid US$35,000 for re-granting to the West Coast Environmental Law Research Foundation, “to provide legal strategies and communication support to First Nations to constrain tar sands development.”
If Tides were funding the tar sands campaign to conduct charitable activities, that would be within the rules. The problem is that some of the activities funded by Tides do not appear to be charitable. For example, Tides has funded groups to “renew opposition parties’ commitment to a tanker ban,” “cultivate indigenous opposition,” “advance the narrative that tar sands expansion is problematic,” and – notably – keep Canadian oil out of Europe, the newest frontier in the Tar Sands Campaign.
At least six organizations in the U.S., the U.K. and in Belgium are receiving U.S. funds to push for the European Fuel Quality Directive that would stigmatize Albertan oil. Last August, Tides paid US$60,000 to the European Federation for Transport and Environment, based in Brussels, Belgium. That was for organizing, advising policy-makers and educating the public of key countries in support of the EU Fuel Quality Directive. One week later, Tides paid US$430,000 to environmental groups (Environmental Defence Canada, Sierra Club and Friends of the Earth) to push for the EU Fuel Quality Directive. Tides also paid US$12,000 to the UK Tar Sands Network “to stop Shell and keep tar sands out of Europe.” The wording couldn’t be clearer.
In September of 2013, Tides paid US$55,000 to a numbered company based in Fort Chipewyan “to build the case for rejecting the Shell and Teck Frontier mines; participate in regulatory processes and use legal tools to increase regulations; work with groups in Europe to support the Fuel Quality Directive; and build public opposition to tar sands and pipelines.” Apparently, the Tides Foundation in San Francisco is funding Canadian First Nations to influence European policy and legislation.

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The same foundations that fund the Tar Sands Campaign also grant substantial funds to environmental organizations in Europe, notably the European Climate Foundation, which has received at least US$30 million from the Hewlett Foundation, Sea Change, the Oak Foundation and the Rockefeller Brothers.
In Europe, Greenpeace, the Sierra Club, Friends of the Earth, the World Wildlife Fund and the Prince of Wales’s Corporate Leadership Group are all funded to some degree by the European Climate Foundation, but the amounts these organizations receive is not publicly reported.
ClimateWorks grants roughly US$25 million per year to European organizations. U.S. law requires charitable foundations to disclose a list of grant recipients within the United States, but this disclosure is not regarded when the grantees are international organizations. Many charitable foundations include the names of international grant recipients anyway, but in the tax returns for ClimateWorks, these names are blacked out.
On a smaller scale, some American charitable foundations fund campaigns to thwart the development of fossil fuels in other parts of the world. For example, in October 2013, Tides paid US$10,000 to an Australian organization “to support a speaking tour and series of public forums in the Northern Territory which will kick-start the campaign to stop shale gas drilling.” The same organization, Lock the Gate Alliance, also received US$395,000 from Tides for unspecified purposes. Tides also funds the campaign against fracking in New York, California, Ireland and perhaps elsewhere. In Canada, Tides funded White Gold Productions to produce a video about fracking in the Horn River Basin.
But in North Dakota and Texas where oil production is booming, there is no multimillion-dollar campaign to stop or slow down the oil industry. As far as I can tell, the only country where there is a systematic, multimillion-dollar, foreign-funded campaign to choke the oil industry is Canada.
Whether intentional or not, environmental activism is becoming a new form of protectionism. By exaggerating risks and impacts, activists exert such political and social pressure that major infrastructure projects can be stalled or stopped altogether, land-locking Canadian oil and gas and keeping Canada over a barrel.
Activism is important, but when it comes to budgets for influencing public opinion, the tides have changed. Environmentalists now have access to substantial resources. For the fossil fuel industries, the battle with environmental activists is no longer David versus Goliath.
Article retrieved from Alberta Oil: http://linkis.com/com/924fY