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They stole the Children from the Land Now They Steal the Land from the Children PDF Print E-mail
Justice News
Posted by Joan Russow
Monday, 10 February 2020 08:49

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The Court erred in granting an injunction 

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. (1991 BC JUSTICE J.A. NORRIS)

A. TIME AND CIRCUMSTANCES HAVE CHANGED SINCE 1991 AFTER UN CONFERENCE ON ENVIRONMENT AND THE DEVELOPMENT (UNCED)

(i) in 1992, Canada signed and in 1993, ratified  the legally binding UN Framework Convention on Climate Change 

whose objective is 

 

article 2, the ultimate objective the UNFCCC convention and any related legal instruments that the conference of the parties may adopt is to achieve stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system;

 

B TIME AND CIRCUMSTANCES HAVE CHANGED SINCE 1991 EMERGENCE OF THE PRECAUTIONARY PRINCIPLE

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 or loss of biological 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 on the law of the seas (UNCLOS) …is also the obligation to invoke the precautionary principle.

 .                                                                          

 

C TIME AND CIRCUMSTANCES HAVE ALSO CHANGEDWITH THE EXTENSION IN 1992 OF THE 1972 PRINCIPLE OF GUARANTEEING RIGHTS OF FUTURE GENERATIONS TO 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,”

 

 

D. TIME AND CIRCUMSTANCES HAS ALSO CHANGED WITH THE 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:

http://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

 

 

2.THE MISCONSTRUING OF WHAT CONSTITUTES THE EQUITABLE ROLE OF AN INJUNCION 

One may well ask ‘who are the real criminals?

 

An injunction should be for preventing harm not for preventing those who strive to discharge the obligation under article 2 of the UN Framework Convention on Climate Change, to invoke the precautionary principle, to protect the rights of future generations, and to ensure the respect for the indigenous rights to free prior informed consent

 

 

 
Last Updated on Monday, 10 February 2020 09:03
 

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