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Line 5 opponents urging White House to reject Canada’s ‘audacious’ treaty gambit

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WASHINGTON — Environmental activists in the United States are seizing on Canada’s decision to invoke a 44-year-old treaty with the United States as an “audacious,” misguided and misleading gambit aimed at short-circuiting Michigan’s effort to shut down the Line 5 cross-border pipeline.

Oil & Water Don’t Mix, a coalition of Michigan environmental and Indigenous groups that includes the Sierra Club and the Michigan Climate Action Network, said Tuesday it has a 33,000-signature petition that it plans to circulate among U.S. lawmakers this week.

The petition urges U.S. President Joe Biden to support the state of Michigan and Gov. Gretchen Whitmer in their legal effort to shut down Line 5, a 68-year-old pipeline that crosses beneath the Great Lakes to deliver crude oil and natural gas liquids from Canada to the U.S. Midwest.

The state has revoked the 1953 easement that allows Calgary-based owner Enbridge Inc. to operate Line 5, citing the risk of a catastrophic spill in the Straits of Mackinac, an ecologically sensitive waterway that links Lake Michigan and Lake Huron.

The resulting dispute has lawyers for both sides arguing in court about whether a district court in Michigan has the jurisdiction to decide the fate of the pipeline and Enbridge’s efforts to upgrade and fortify the twin lines that run along the lakebed under the straits.

Last week, the federal government filed court documents confirming that it wants formal negotiations with the U.S. under the terms of a 1977 treaty specifically drafted to deal with cross-border pipelines, and asking Judge Janet Neff to hold the case in abeyance.

“We’re calling on the president to stand with Gov. Whitmer in rejecting Enbridge’s delay tactics,” said Sean McBrearty, the co-ordinator for Oil & Water Don’t Mix.

McBrearty called the treaty tactic a “direct attack on our sovereignty” that intentionally misinterprets the treaty itself “to make the audacious claim that we must leave a major risk pumping oil indefinitely through the heart of the Great Lakes.”

He pointed to the oil spill last week off the coast of California, which was likely the result of an underwater anchor strike — precisely the sort of peril that Whitmer and her supporters fear could befall the Great Lakes shoreline if Line 5 continues to operate.

“This fight is not really about Enbridge’s fuel,” he said. “This fight is about Michigan’s water.”

Andy Buchsbaum, the legal adviser for the National Wildlife Federation, said when it comes to pipeline safety and environmental concerns, Michigan is well within its rights to demand the line be shut down.

“The government of Canada is misrepresenting the terms of the 1977 treaty, which explicitly authorizes Michigan to take exactly the kind of action it did when it issued the order shutting down the pipeline,” Buchsbaum said.

The shutdown order “is actually authorized by the same treaty that Canada claims invalidates the shutdown order.”

Michigan’s attorney general showed similar contempt for Canada’s move, disputing the notion that treaty talks are relevant to the legal matters at hand and that the hearings should be paused to allow those talks to proceed.

“Canada is wrong on both counts,” Dana Nessel wrote in a response filed in court last week.

“Neither the 1977 Transit Pipelines Treaty itself nor Canada’s recent invocation of the dispute resolution process … are relevant to the sole legal issue now before this court: whether it has jurisdiction over the state’s complaint removed by Enbridge.”

Canada’s letter, she continues, “is devoid of any legal authority or persuasive argument for its assertion that this court should decline to rule” on the matter.

“Staying this case based on some speculative outcome of international treaty negotiations would deprive the state of its ability to protect these core sovereign interests while indefinitely enshrining the status quo that Enbridge desires.”

Proponents of Line 5 say its 540,000 barrels of crude oil and natural gas liquids per day are a vital energy source for markets across the Midwest, including Michigan, Ohio and Pennsylvania, as well as Canadian refineries that provide jet fuel to some of Canada’s busiest airports.

Enbridge has insisted from the outset that it has no plans to voluntarily shut down the pipeline.

A court-sanctioned voluntary mediation process, which began in April, has failed to yield any agreement and appears to have fallen apart, although the official status of those talks remains unclear.

Court documents show the state has no “desire to continue with the mediation process,” while Enbridge has said publicly that it wants the talks to continue.

This report by The Canadian Press was first published Oct. 12, 2021.

James McCarten, The Canadian Press

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Supreme Court of Canada sides with injured woman in snow-clearing squabble

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OTTAWA — A woman will get another chance to sue for damages over a leg injury she suffered while climbing through snow piled by a city’s plow, the Supreme Court of Canada has ruled.

Taryn Joy Marchi alleged the City of Nelson, B.C., created a hazard when it cleared snow from downtown streets after a storm in early January 2015.

The removal effort left snow piles at the edge of the street along the sidewalk early in the morning of Jan. 5.

Late in the afternoon of Jan. 6, Marchi — then a 28-year-old nurse — parked in an angled spot on the street and, wearing running shoes with a good tread, tried to cross a snow pile to get on to the sidewalk.

Her right foot dropped through the snow and she fell forward, seriously injuring her leg.

Marchi contended the city should have left openings in the snowbank to allow safe passage to the sidewalk.

She pointed to the neighbouring municipalities of Castlegar, Rossland and Penticton in arguing there were preferable ways to clear the streets so as to ensure safe access for pedestrians.

However, the trial judge dismissed her case, saying the city was immune from liability because it made legitimate policy decisions about snow clearing based on the availability of personnel and resources.

In any event, the judge concluded, Marchi assumed the risk of crossing the snow pile and was “the author of her own misfortune.”

The B.C. Court of Appeal overturned the decision and ordered a new trial, saying the judge erred in addressing the city’s duty of care and the question of Marchi’s negligence.

The ruling prompted the City of Nelson to seek a hearing in the Supreme Court.

In a written submission to the high court, the city said its actions amount to “a clear example of a core policy decision” that should be immune from liability.

In her filing with the court, Marchi said city employees made a number of operational decisions that fell below the expected standard of care of a municipality — decisions not required by the written policy.

In its 7-0 ruling Thursday, the Supreme Court said a fresh trial should take place because the city has not proved that its decision on how to clear the snow was “a core policy decision” immune from liability.

While there is no suggestion the city made an irrational or “bad faith decision,” the city’s core policy defence fails and it owed Ms. Marchi a duty of care, justices Sheilah Martin and Andromache Karakatsanis wrote on behalf of the court.

“The regular principles of negligence law apply in determining whether the City breached the duty of care and, if so, whether it should be liable for Ms. Marchi’s damages.”

This report by The Canadian Press was first published Oct. 21, 2021.

Jim Bronskill, The Canadian Press

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Pfizer will ship millions of vaccine doses for kids as soon as it’s approved: Trudeau

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OTTAWA — Prime Minister Justin Trudeau says as soon as Health Canada approves the COVID-19 vaccine for kids, Pfizer will ship millions of doses to vaccinate children as young as five.

Pfizer and BioNTech asked Health Canada Monday to approve the vaccine for children between five and 11 years old but said the doses already shipped for adults are different.

The pediatric formula is for a dose one-third the size as that given to adults and teenagers.

Trudeau said he knows Canadian parents are anxious to get their children vaccinated as soon as possible but urged patience because Health Canada will take the time it needs to complete its process to ensure the data confirms the vaccine is safe and effective for children.

The United States is expected to make a decision for this age group by the end of this month. While Canada has co-operated with both the U.S. and the European Medicines Agency to have common authorization requirements for vaccines, there is no deadline in Canada for the decision to be made.

Trudeau says as soon as that happens, Pfizer will ship “enough to get all kids between five and 11 vaccinated as quickly as possible.”

Public Services and Procurement Minister Anita Anand said in a statement that the first shipment will be 2.9 million doses, which is enough to give the first dose to all children in that age group.

Anand said Pfizer agreed to accelerate the deliveries, and that Canada has procured the syringes and other supplies needed to administer the doses.

She said second doses will be delivered depending on how fast the first doses are rolled out.

“This will ensure that Canadian children have vaccines when they need them without keeping doses in freezers for extended periods of time when global demand is so high,” said Anand.

Pfizer and BioNTech reported that two 10 microgram doses of vaccine, given approximately 21 days apart, generated a similar antibody response in children between five and 11 years old as the adult-sized doses did when given to people between 16 and 25 years of age.

They earlier had tested three different sized doses for kids, and landed on the 10 microgram dose as the best option.

As of Wednesday, 29.6 million Canadians over the age of 12 have received at least one dose and 27.9 million of those are fully vaccinated with both required doses.

That amounts to 88.5 per cent of all eligible Canadians having at least one dose, and 83 per cent of them being fully vaccinated.

More than 414,000 Canadians have now received a third dose, mainly people with compromised immune systems and some residents in long-term care homes, for whom two doses did not give the same level of immunity as they did to most healthy adults.

Pfizer spokeswoman Christina Antoniou said the pediatric doses will come in vials of 10 doses, with a unique label for children and a different coloured cap to ensure it is differentiated from the vials of adult doses.

The adult doses are shipped in vials with six doses in each.

Moderna is also testing its vaccine on children, with results expected later this fall.

Pfizer and Moderna are both testing the vaccine on children younger than five as well, with clinical trials underway but no certainty on when the data will be ready.

This report by The Canadian Press was first published Oct. 21, 2021.

Mia Rabson, The Canadian Press

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