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Constitutional expert debunks “National Interest” argument for Kinder Morgan pipeline

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PostedApril 15, 2018 by in Canada
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Alberta Premier Rachel Notley and Canadian PM Justin Trudeau (Photo: Premier of Alberta/Flickr)

Read this April 13 Desmog Canada article on lawyer Jack Woodward’s view that the “National Interest” – often cited as a basis for forcing through the Trans Mountain Pipeline Expansion pipeline – doesn’t trump Aboriginal rights enshrined in the Canadian Constitution.

In the fall of 1981, Jack Woodward was a young lawyer in Ottawa when NDP leader Ed Broadbent and prime minister Pierre Trudeau struck a deal to include aboriginal rights in the Canadian constitution.

I banged out a first draft,” Woodward recalls. “I typed it out on a manual typewriter. I had to do it in a hurry.”

In less than an hour, Woodward had laid the foundation of Section 35, the part of the Canadian constitution that recognizes and affirms the rights of Indigenous peoples.

In the ensuing 37 years, Woodward has come to know a thing or two about Canada’s constitution. For one, he fought the Tsilhqot’in Nation’s title case for a quarter century, resulting in the landmark Supreme Court ruling that the nation holds title to about 1,900 square kilometres of its traditional territory in B.C.

So when Woodward hears pundits and politicians bandying around the phrase “unconstitutional,” his ears perk up.

“The government of Alberta will not — we cannot — let this unconstitutional attack on jobs and working people stand,” Alberta Premier Rachel Notley said after the B.C. government announced its intention to limit the transport of diluted bitumen through the province in January.

She’s completely wrong about that,” Woodward told DeSmog Canada. “And if she was right, she could go to court. But she knows she’s not right, so that’s why she’s using that word as if it is a political tool rather than a legal tool … That’s a superficial and incorrect view of how the Canadian constitution works.”

Woodward says Notley is referring to pre-1982 classic constitutional questions about the divisions of powers between federal and provincial governments.

But since 1982, you also have the additional complexity of constitutional protection of aboriginal rights, which in some cases override either federal or provincial powers,” Woodward said.

Indigenous rights are not a footnote in the ongoing constitutional saga over the the Kinder Morgan Trans Mountain pipeline— they’re at the centre of it. And yet, they’re virtually absent in media coverage of Canada’s pipeline pandemonium.

Read more here.

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One Comment


  1.  
    Mooney

    Seems to me Jack Woodward also won a case in the Supreme Court reaffirming these aboriginal rights.





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