2019  UPDATE; It is expected that when an international instrument is adopted , acceded to or ratified, there is an international expection that it will be implemented . When n the Federal Court quashed the decision to expand Kinder Morgan, the Court should have iinformed the House of Commons & Senate that if the implementing legislation was not in place when UNDRIP was adopted [1982 communique}, the implementing legislation must be in place and it should be  a condition for approval of KM expansion 

https://pejnews.com/administrator/index.php?option=com_content§ionid=-1&task=edit&cid[]=10970

also see 

By JoanRussow  Global Compliance Research Project

Joan Russow founded the Global Compliance Research Project that  calls upon countries to comply with their international obligations and commitments. She has attended many international climate change, and environmental conferences. She walked 76 km from Victoria to Burnaby against Kinder Morgan. Injunctions should be against those who cause irreversible harm not those who strive to prevent irreversible harm. Since Clayoquot Sound, she has been concerned about the misconstruing of injunctions and she is still saying, as she did then, “who are the real criminals?

/www.orcanetwork.org/nathist/salishorcas1.html

Is it a crime to strive to prevent crime or is it a crime to cause and condone it?

A. NOT HEEDING AN INJUNCTION AS BEING AN EQUITABLE REMEDY THAT MOVES WITH TIME AND CIRCUMSTANCES AND TREATIES MUST BE COMPLIED WITH IS UNIVERSALLY RECOGNIZED (PACTA SUNT SERVANDA)

B. DISREGARDING “BEING HARMFUL” TO ECOSYSTEMS AS BEING A CRIME TO STATE AND SOCIETY –

C. OVERLOOKING THE PRECAUTIONARY PRINCIPLE AND CONSERVATION  COMMITMENTS

D DISCOUNTINGA GLOBAL VISION FROM COP21 CONFERENCE  IN PARIS

E. DISRESPECTING RIGHTS OF FUTURE GENERATION

F. DISPENSING WITH UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES (UNDRIP)

G.  JEOPARDIZING FUTURE CONSERVATION PROJECTS IN THE SALISH SEA,

H. FAILING TO APPLY THE DOCTRINE OF LEGITIMATE EXPECTATION

I. IGNORING A MEANS TO CANCEL KINDER MORGAN WITHOUT A REPRISAL FROM NAFTA UNDER CHAPTER  11

J. CLOSING THE EYES TO A POTENTIAL BOONDOGGLE OF AN INVESTMENT

K. CONCLUSION  AND POEM BY NNIMMO BASSEY

****A. NOT HEEDING AN INJUNCTION AS BEING AN EQUITABLE REMEDY THAT MOVES WITH TIME AND CIRCUMSTANCES, AND TREATIES MUST BE COMPLIED WITH IS UNIVERSALLY RECOGNIZED (PACTA SUNT SERVANDA).

1

1.    An injunction is an equitable remedy

An injunction is an equitable remedy. The exercise of the equitable jurisdiction is not to be restricted by the straitjacket of rigid rules but is to be based on broad principles of justice and convenience, equity regarding the substance and not merely the facade or the shadow. It moves with time and circumstances. (1991Justice J.A. Norris)

The law of equity is as important in Canadian law as statute law and common law. It operates to provide equitable relief  with the maxim “where there is a recognizable right, but no remedy under the common law”.

 The law of equity has developed over centuries to provide equitable doctrines and equitable maxims. May 1, 2008

2. treaties must be complied with is universally recognized (pacta sunt servanda).

Under the Vienna Convention on the Law of treaties

Recalling the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained  Preamble)

Noting that the principles of free consent and of good faith and the pacta sunt servanda (treaties shall be complied with rule are  universally recognized), Preamble)

Article 2  reads

 ratification', 'acceptance', 'approval' and 'accession' mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty(Vienna convention on the law of treaties).

B. DISREGARDING  HARMFUL OR “WRONGFUL” TO ECOSYSTEMS AS BEING A CRIME TO STATE AND SOCIETY –

1.    crime has been defined as an ``act harmful not only to some individual but also to a community, society or the state a crime is against the  law  (a public wrong). ``

• a crime involves a public wrong 
• https://www.blackburnandgreen.com/wrongful-act-may-crime-tort
• In international law the term  “a wrongful act in violation of international law” (Nicargua vs the US 1986)

2.    Time and circumstances have changed since 1991 after UN Conference on Environment and the Development (UNCED)

After UNCED a crime could be extended  ``to a wrongful act against the global community` under  international law``]

 HARM CAN BE CAUSED BY OMISSION OR COMMISSION TO ACT

At UNCED,the word  ``harmful`` became extended to include “ harm to environment’ and became conflated with ``damage`` and ``deterioration`` to environment caused by human activity..

Humanity stands at a defining moment in history. We are confronted with a perpetuation of disparities between and within nations, a worsening of poverty, hunger, ill health and illiteracy, and the continuing deterioration of the ecosystems on which we depend for our well-being. ... (1.1 Preamble, Agenda 21,  UNCED)

At UNCED. Canada was involved with drafting the  Un Framework convention on Climate Change and the convention on Biological diversity. Canada also signed the the convention on Biological Diversity and in December, 1993 Canada ratified both conventions.

Could a violation of a legally binding convention be deemed to be a wrongful act?

****C. OVERLOOKING THE PRECAUTIONARY PRINCIPLE AND CONSERVATION  COMMITMENTS  UNDER LEGALLY BINDING INTERNATIONAL CONVENTIONS

Time and circumstances have changed since 1991

Since 1992, the precautionary principle has become a principle of international law; with the precautionary principle the expansion of “harm or damage has the qualifiers of``irreversible” threat

In the 1992, Rio Declaration, the precautionary principle reads:

Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent the threat." (Rio Declaration, UNCED 1992).

The principle is also in the 1992 legally binding Convention on Biological Diversity, where the precautionary principle reads:

where there is a threat of significant reduction orloss ofbiological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat

In the 1992, legally binding UN Framework Convention on Climate Change:

      The parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and its adverse effects, and where there are threats of irreversible damage, the lack of scientific certainty should not be used as a reason for postponing such measures.

In the 1995 Agreement “Relating to the Conservation and Management of Straddling Fish stocks and Highly Migratory fish stocks, linked to the legally binding UN Convention n the Law of the Seas (UNCLOS) …is t also the obligation to invoke the precautionary principle.

Also time and circumstances have changed with the mandate to conserve biodiversity, and conserve straddling stocks

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

        Article 6. General Measures for Conservation and Sustainable Use

Each Contracting Party shall, in accordance with its particular conditions and capabilities:

(a) Develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; and

(b) Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.

In1995 Agreement “Relating to the Conservation and Management of Straddling Fish stocks and Highly Migratory fish stock is  also the obligation to invoke the precautionary principle to protect salmon and whales

Article 2 objective

The objective of this agreement is to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the convention

In addition, the Kinder Morgan expansion could cause Canada to violate the Law of the Seas;

"The United Nations Convention on the Law of the Sea 1982 (UNCLOS) is popularly considered “a constitution for the oceans”, establishing a global framework for the exploitation and conservation of marine resources. It is one of the most important Treaties in setting out the importance and special nature of whales and dolphins"  (http://uk.whales.org/issues/in-depth/united-nations-convention-on-law-of-sea-1982 UNCLOS)         

Kinder Morgan  expansion could  be a wrongful act causing Canada to be in  violation of the legally binding UNFCCC, CBD  and UNCLOS;

UNCLOS is popularly considered “a constitution for the oceans”, establishing a global framework for the exploitation and conservation of marine resources. It is one of the most important treaties in setting out the importance and special nature of whales and dolphins"  (http://uk.whales.org/issues/in-depth/united-nations-convention-on-law-of-sea-1982)    

Canada could  be taken, by other signatories of UNCCC, CBD, UNCLOS  WHC to the international  Court of Justice  for wrongfully  violating the above legally binding conventions.

.                                                                          

There is sufficient evidence that there could be serious irreversible damage, loss of significant biological diversity, -adverse effects of climate change, and harm to marine life, including to salmon and whales,  to justify invoking the precautionary principle and to cancel the Kinder Morgan expansion. Sufficient evidence exists that the Kinder Morgan expansion would affect on conservation diversity on land and in the sea.to justify cancelling the Kinder Morgan expansion.  

****D .DISCOUNTING A GLOBAL VISION  FROM COP21 IN PARIS

Time and circumstances have changed since 1991 with the call by Ban KI Moon

At COP 21, Ban Ki Moon urged states to negotiate with a global vision not with national vested interests (COP, 21 press conference)

Canada is the highest per capita contributor to greenhouse gas emissions and Canada`s carbon budget has been ignored by Canada. In 2018, Canada is in danger of being in non-compliance with Article 2, the purpose of the legally binding United Nations Framework Convention on Climate Change (Article 2)

...to achieve, in accordance with the relevant provisions of the convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.

 At cop21, the conference called for immediate action by governments,

at Cop21, Canada`s “contribution” was to reduce greenhouse gas emissions by 30% below 2005 levels by 2030; not quite an immediate call to action!  This is a far cry from the commitment made in 1988 at the Toronto changing Atmosphere conference to “Reduce CO2 emissions by approximately 20% of 1988 levels by the year 2005 as an initial global goal.” Or from commitment in UNFCCC the return by the end of the present decade  2000 to earlier levels of anthropogenic emissions of carbon dioxide and other greenhouse gases ( ARTICLE 4).

At COP21, the “contributions”, not commitments, by states, including Canada could result in a temperature rise of 3 or more degrees Celsus.

 An immediate call to action would be for each state make a commitment to reduce Greenhouse gas emissions  so as to abide with Article 2 of UNFCCC, .

Canada, at a minimum, must calculate its carbon budget and make a firm commitment to reduce greenhouse gas emissions to 25% below1990 levels by 2020 and to achieve decarbonisation and 100 % below 1990 levels by 2050

 A real global vision, however, would be time lines and targets in line with existing and emerging science such as  20% below 1990 by 2018, 30% below 1990 levels by 2019, 40% below 1990 levels by 2020, 60 % below 1990 levels by 2025, 75% below 1990 below1990 levels by 2035 and 100% below 1990 emissions by 2040, and  reaching decarbonization with 100% socially equitable ecologically sound renewable energy,

The Expansion of Kinder Morgan makes a mockery of Canada`s so-called concern about climate change.

****E. DISRESPECTING RIGHTS OF FUTURE GENERATIONS

 Time and circumstances have also changed with the extension of the 1972 principle of  guaranteeing rights of future generations to cultural and natural heritage

Under the article 4 of 1972 legally binding UN Convention on the Protection of Cultural and Natural Heritage or World Heritage Convention (WHC) signatories have “ the duty to ensure the identification, protection, conservation, preservation and transmission to future generations of cultural and natural heritage.”

Under Article 12, of the Convention on biological Diversity is an obligation “to conserve and sustainably use biological diversity for the benefit of present and future generations,

In the framework Convention on Climate change, there is expressed “determination to protect the climate system for present and future generations,”

****6. DISPENSING WITH UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES (UNDRIP)

Time and circumstances has also changed with the  almost global adoption of the UN Declaration on the Rights of Indigenous Peoples, particularly with the requirement to obtain free prior and informed consent.

Under UNDRIP,  Article 19 affirms:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.``

IN the truth and reconciliation recommendations is the call to action 92 which affirms:

We call upon the corporate sector in Canada to commit to obtaining the free, prior, and informed consent of Indigenous peoples before proceeding with economic development projects

In July 2015, the UN Human Rights Committee urged Canada  “… to seek their free, prior and informed consent whenever legislation and actions impact on their lands and rights”

.Following his visit to Canada, former Special Rapporteur James Anaya concluded: "as a general rule resource extraction should not occur on lands subject to aboriginal claims without adequate consultations with and the free, prior and informed consent of the indigenous peoples concerned. “Anaya added: "The general rule identified here derives from the character of free, prior and informed consent as a safeguard for the internationally recognized rights of indigenous peoples that are typically affected by extractive activities that occur within their territories."

The former Harper government refused to adopt the UNDRIP; Harper also proclaimed, “consent` does not really mean consent”

Article 31, however, in the Vienna Convention on the Law of Treaties outlines General rules of interpretation:

 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

In ordinary meaning “consent’ means consent, not just consultation.

Canada’s interpretation of free prior informed  consent is  out of sync with the international interpretation:

https://pejnews.com/index.php?option=com_content&view=article&id=10807:kinder-morgan-canadas-interpretation-of-free-prior-informed-is-out-of-sync-with-the-international-interprettion&catid=77:bc-justice-news&Itemid=219

While under Trudeau, the UNDRIP was finally passed into law in Parliament, yet the commitment to obtaining free prior informed consent has been dispensed with.

****F.  JEOPARDIZING FUTURE CONSERVATION PROJECTS IN THE SALISH SEA,

Time and circumstances have changed since 1991 with the 2005 revision of the guidelines for designating areas as Particularly Sensitive Sea Areas (PSSAs)

In 2005, the International  Maritime Organization (IMO)adopted revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (PSSAs) (resolution A.982(24). These new criteria arpertaine pertinent to the Salish Sea.

​

In the Federal response to the CRD, about the PSSA for the Salish Sea  was the following statement;

``*** a PSSA designation for the Salish Sea is not the appropriate approach as it would imply that A PSSA designation for the Salish Sea would be decided  by IMO`S 170 Member States to waters that fall under the jurisdiction of Canada and the US``

Given that in the Salish Sea, US' military operations are encroaching further

Kinder Morgan, expanding multifold,, and LNG Projects proliferating, , senior levels of government have been remiss in not fulfilling their responsibilities, under their jurisdictions, towards the sensitivity of the Salish Sea.

The Salish sea  appears to fulfill many of the the new IMO criteria for the designation of PSSAs. Including  the following:

1.3. areas important for the conservation of biological diversity as well as other areas with high ecological, cultural, historical/archaeological, socio-economic or scientific significance.

4.1 An area that could be at risk from international shipping activities. Type and quantity of substances on board, whether cargo, … that would be harmful if released into the sea

        4.4 An area that is an outstanding and illustrative example of specific biodiversity,       ,            ecological or community or habitat types or other natural characteristics.

4.4.5 An area that may have an exceptional variety of species or genetic diversity or includes highly varied ecosystems, habitats, and communities.

4.4.7 An area that may be a critical spawning or breeding ground or nursery area for marine species which may spend the rest of their life-cycle elsewhere, or is recognized as migratory routes for fish, birds, mammals, or invertebrates.

4.4.13 An area that is of particular importance for the support of traditional subsistence or food production activities or for the protection of the cultural resources of the local human populations

6.2  Considerationshould also be given to the potential for the area to be listed on the World Heritage List, declared a Biosphere Reserve, or included on a list of areas of international, regional, or national importance

There have also been proposals, in the Salish Sea, for a Marine Protected Area, and for a Salish Sea Biosphere Reserves which could be in jeopardy

In the past few years many proposals have been made  for conservation, comprising terrestrial, marine and coastal ecosystems in the Salish sea; for promoting and demonstrating a balanced relationship between humans and the biosphere, while integrating especially the role of traditional knowledge in ecosystem management and  fostering economic and human development which is socio-culturally and ecologically sustainable.

kinder Morganexpansion would jeopardize  he possibility of both the Salish sea being  designated as a PSSA, a Biosphere Reserve and coastal and marine conservation of the Salish sea are areas of terrestrial and coastal/marine ecosystems;

sound ecological practices could reinforce scientific research, monitoring, training and education

With the approval of Kinder Morgan. expansion, the government could violate legally binding international instruments; such as the UN Convention Concerning the Protection of Cultural and Natural Heritage

Under this Convention)  Canada has affirmed  the following:

 •.... in view of the magnitude and gravity of the new dangers threatening them, it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value(preamble, convention concerning the protection of the world cultural and natural heritage,1972)

Under article 4 of the. Convention, Canada recognized

the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage situated on its territory, belongs primarily to that state. it will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical.

****G. FAILING TO APPLY THE DOCTRINE OF LEGITIMATE EXPECTATION

Where public authorities establish procedures and publish policies, they are bound to follow them. The concept of legitimate expectations has extended the requirements of natural justice to situations where citizens may legitimately be expected to be treated fairly (BC Ombudsman office, personal communication).

In 1982, Canada received from the United Nations a Questionnaire on Parliaments and the Treaty-making Power".

The External Affairs Department Communique to the UN explained the division of powers and constitutional conventions in Canada about  International obligations, and indicated:

Many international agreements require legislation to make them effective in Canadian domestic law. The legislation may be either federal or provincial or a combination of both in fields of shared jurisdiction. Canada will not normally become a party to an international agreement which requires implementing legislation until the necessary legislation has been enacted

Citizens have a legitimate expectation that either the convention will be put to parliament, legislation passed to enable compliance with the convention or that ratification of these treaties means the necessary legislation has been in place  

Thus, in the case of the UN Framework convention on Climate Change and the  Convention on Biological Diversity  which have both been ratified are the law of the land.

Citizens have a legitimate expectation that Canada will fairly abide by the legally binding UNFCCC. CBD and UNCLOS, and by the commitments under UNDRIP and under IMO and prevent irreversible harm and not target with injunctions those who strive to prevent irreversible harm

,KINDER MORGAN PROTESTORS HAVE A LEGITUMATE EXPECTATION THAT THE GOVERNMENT WOULD DISCHARGE ITS  INTERNATINAL  OBLIGATIONS AND ACT ON ITS COMMITMENTS TO PREVENT HARM  TO CITIZENS, THE STATE AND SOCIETY

The protesters are also calling for the invoking of the precautionary principle, abiding by the legally binding objectives in the UN Framework Convention on Climate change, Convention on Biological Diversity, and Agreement on Straddling salmon and whales under the UN Convention of the Law of the Seas. The designating of the Salish Sea as a PSSA, the requirement for free prior informed consent by indigenous peoples,

 And are acting with a global vision;

And calling for  the fulfilling of address article 2 of the UN Framework Convention on Climate Change and at a minimum to immediately to end all subsidies for fossil fuel, to calculate the carbon budget for Canada, to divest in fossil fuels and to reinvest in renewable energy, to conserve sinks - such as old growth forests and bogs (not  just as a means to offset emissions), to strengthen conservation of  biodiversity, to avoid all false solutions such as nuclear, geo-engineering and biofuels which would all violate principles within the UNFCCC, promote nature-based solutions along with solar energy, wind energy, wave and geothermal and to compensate for historical  emissions, and to institute a fair and just transition for workers affected negatively by the new vision. And perhaps call for the closing of the tar sands which has made Canada a b international pariah

THEN WE MAY ASK AGAIN, WHO ARE THE REAL CRIMINALS? THOSE WHO CAUSE OR CONDONE IRREVERSIBLE HARM OR THOSE THAT STRIVE TO PREVENT IRREVERSIBE HARM

If you don’t leave crude oil in the soil Coal in the hole and tar sands in the land I will confront and denounce you

Earth News

Posted by Joan Russow

Saturday, 21 December 2013 16:47

(a poem by Nnimmo Bassey)     From the 2010 Cochabamba Conference - Speech by Nnimmo Bassey at the Opening Ceremony of the conference Nnimmo Bassey represented Friends of the Earth and Africa at the Conference. After his opening remarks he recited the following poem. I will not dance to your beat (a poem by Nnimmo Bassey) I will not dance to your beat  I will not dance to your beat  If you call plantations forests I will not sing with you  If you privatise my water I will confront you with my fists If climate change means death to me but business to you I will expose your evil greed  If you don’t leave crude oil in the soil Coal in the hole and tar sands in the land I will confront and denounce you  If you insist on carbon offsetting and other do-nothing false solutions I will make you see red If you keep talking of REDD and push forest communities away from their land I will drag you to the Climate Tribunal   If you pile up ecological debt & refuse to pay your climate debt I will make you drink your own medicine   If you endorse genetically modified crops And throw dust into the skies to mask the sun I will not dance to your beat Unless we walk the sustainable path And accept real solutions & respect Mother Earth Unless you do I will not &  We will not dance to your beat - Cochabamba/Tiquipaya 20 April 2010 Read at the opening ceremony of the World Peoples Climate Conference Summit - Show quoted text -

If you don’t leave crude oil in the soil Coal in the hole and tar sands in the land I will confront and denounce you

Earth News

Posted by Joan Russow

Saturday, 21 December 2013 16:47

(a poem by Nnimmo Bassey)     From the 2010 Cochabamba Conference - Speech by Nnimmo Bassey at the Opening Ceremony of the conference Nnimmo Bassey represented Friends of the Earth and Africa at the Conference. After his opening remarks he recited the following poem. I will not dance to your beat (a poem by Nnimmo Bassey) I will not dance to your beat  I will not dance to your beat  If you call plantations forests I will not sing with you  If you privatise my water I will confront you with my fists If climate change means death to me but business to you I will expose your evil greed  If you don’t leave crude oil in the soil Coal in the hole and tar sands in the land I will confront and denounce you  If you insist on carbon offsetting and other do-nothing false solutions I will make you see red If you keep talking of REDD and push forest communities away from their land I will drag you to the Climate Tribunal   If you pile up ecological debt & refuse to pay your climate debt I will make you drink your own medicine   If you endorse genetically modified crops And throw dust into the skies to mask the sun I will not dance to your beat Unless we walk the sustainable path And accept real solutions & respect Mother Earth Unless you do I will not &  We will not dance to your beat - Cochabamba/Tiquipaya 20 April 2010 Read at the opening ceremony of the World Peoples Climate Conference Summit - Show quoted text -