Monthly Archives: June 2014

Bombast

An American court lobbed a bombshell into the culture wars today, by ruling that some United States corporations have religious rights. My first notice of the decision was an email alert from the New York Times:

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Hobby Lobby in Stow, Ohio. Photo: DangApricot, Creative Commons/Wikimedia

“The Supreme Court has ruled on whether for-profit corporations may advance claims based on religious freedom. Our reporters are reading the decision and will update this article as soon as they feel confident about its basic meaning. (Emphasis is mine.)

The restraint in that simple message was, oddly, a relief.

Civility and sanity drown a bit more every day in maelstroms formed by instant explosive rage smashing into gloating triumph. They occur everywhere in the global 24/7 new cycle, but America’s culture wars are especially loud, vicious, and polarizing. Restraint such as by the Times —  of actually reading the decision, and refraining from analysis until “confident about its basic meaning” — helps defuse the bombast of instant analysis. Sage judgement matters as much in journalism as in politics, and I consider the Times one of the few journalism outfits worth a subscription price.

But the best antidote to the bombast, and a whole lot else, is thinking for oneself. The same Internet that fuels outrage also opens up a world of information. Nobody should take anyone’s word on today’s decision, whether they’re a Fox News commenter, an Al Jazeera reporter, a New York Times analyst, or the countless partisans, paid lobbyists, ideologues or religious leaders. The decision is published here, on the court web site, for those willing to sift through the legalese, glean the tension between every line, think, and maybe even ask: is this really how we want to run our world?

Here’s a brief summary of who, what, when and why — along with select excerpts of the ruling written by Justice Samuel A. Alito Jr., and the dissenting opinion by Justice Ruth Bader Ginsberg.  

BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. HOBBY LOBBY STORES, INC., ET AL.

The court heard the case on March 25, and released its 5-4 split ruling on June 30. A majority of conservative judges overruled the liberal minority. 

The essence:

Citing their personal religious beliefs, owners of corporations who self-identify as Christians won their battle against government efforts to make companies pay for contraceptives as part of their employees’ health benefits — especially contraceptives that disrupt pregnancy, which the business owners consider tantamount to abortion. Religious organizations were already exempt from the requirement to pay. The court ruled: “Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.”

The cause:

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” … As amended by the Religious Land Use and Institutionalized Persons Act of 2000 … RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

The background: 

United States Department of Health and Human Services (HHS) regulations require employers group health plans to pay their employee costs for 20 contraceptive methods, wrote Alito, “including the four that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any cost- sharing requirements on the employer, its insurance plan, or its employee beneficiaries.”

“In these cases, the owners of three closely-held for-profit corporations have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions, they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide health coverage for the four objectionable contraceptives.”

The cases came together in America’s top court after conflicting rulings by lower courts. One court previously ruled that “a for-profit corporation could not “engage in religious exercise” … and said the (insurance coverage) mandate was not an imposition on a corporation’s owners. Another court ruled that businesses are “persons” and the contraceptive mandate “substantially burdened (the company owners’) exercise of religion. It said no compelling interest had been made in favour of the insurance requirement or, alternatively, if there were a compelling governmental interest, the health department had failed to prove a “least restrictive means” of furthering it.

The majority ruling: 

Held: As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA….

(a) RFRA applies to regulations that govern the activities of closely held for-profit corporations …

(1) HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as corporations. RFRA’s text shows that Congress designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,” but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.

Justice Ruth Bader Ginsburg warned in her dissenting opinion of wide and unintended repercussions of the ruling, and noted  why religious exemptions to American laws have never before been extended to any entity operating in “the commercial, profit-making world:”

“The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations … (the U.S.) requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention …

The Court’s determination that RFRA extends to for- profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private … The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. … claims will proliferate, for the Court’s expansive notion of corporate personhood — combined with its other errors in construing RFRA — invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith …

~~~

— Deborah Jones

 

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The DICEy Flaws in Carbon Models: Chris Wood

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German coal power plant. Photo: Arnold Paul, Creative Commons

Economists Simon Dietz and Nicholas Stern have published some startling findings about the current DICEy models used to estimate the social price of carbon. Chris Wood explains in today’s Natural Security column, excerpt here:

A common line of attack for the propagandists, and the misled who imagine we are not altering Earth’s climate, is that climate projections rely on models. Models! Not the real thing. Why, they could be as made-up as a model of the space ship Enterprise! Pure fiction. 

Of course, the richly researched ‘models’ that forecast where our climate is headed with increasing precision, are nothing of the sort. They are, in essence, mathematical mashups of the observed relationships that drive the real climate: how ocean currents move heat from here to there; how air masses transport moisture and more heat; how both are transferred where air and water, or air and land, meet; how different amounts of atmospheric gasses contain or release more heat from the planet. These relationships aren’t made up; they’re dictated by nature. And the models’ generally close match with reality, when ‘run’ against the known past, confirms their accuracy.

But there’s another kind of climate model. It’s one that tries to marry what scientists know about the dynamics of the global climate, to the very similar sorts of mathematical models that economists create to describe the marketplace. It’s called a “Dynamic Integrated Climate Economy” model — DICE. Its point is to determine just how much damage future climate change will really do to the economy — and therefore how much money it’s worth spending today to avoid that damage …

It turns out that the “industry standard” for such models today, the one that guides most government and large business decisions about how seriously to take climate change, takes some remarkable, and dangerously misleading short-cuts  …. read more (subscription required*)

*Log in on the top right of each page, or click here to purchase a subscription or a $1 site day pass, to read Wood’s column:

The Climate Models are Wrong!  (Just not the models you think)

Click here for Chris Wood’s’s page, with all of his columns for F&O.

*Independent, non-partisan and employee-owned, F&O serves and is entirely funded by modest reader payments. We do not carry advertising or solicit donations from non-journalism foundations or causes. Why?

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On the EU and David Cameron’s Base

360px-David_Cameron_officialDavid Cameron’s campaign to prevent the election of  Jean-Claude Juncker as head of the European Commission was a piece of sound and fury, writes International Affairs analyst Jonathan Manthorpe. His defeat would seem, on the surface, conclusive — except when considered as a work of domestic politicking. An excerpt of Manthorpe’s column:

The humiliating defeat of British Prime Minister David Cameron in the election for the European Union’s top bureaucrat is probably the best thing that could have happened to him.

Cameron took a calculated risk in the fallout from May’s elections for members of the European Parliament, in which right wing anti-EU parties including the United Kingdom Independence Party (UKIP) made unprecedented gains.

The results made Cameron’s credibility look threadbare, especially his pledge to renegotiate the terms of Britain’s membership of the EU. Cameron wants to grab back powers over national policy-making and legislation that have been handed over to Brussels. His plan is to put the results to a clear yes or no referendum in Britain in 2017, after the next general election, due in May next year.

But recent local and European elections in Britain show that a gathering tide of voters, both Conservatives and supporters of the opposition New Labour party, are so fed up with the intrusive nannyism of Brussels … read more (subscription required*)

*Log in on the top right of each page (or click here to purchase a subscription or a $1 site day pass) to read:

Cameron courts “heroic defeat” by European leaders

Jonathan Manthorpe’s columnist page is here.

 

Facts and Opinions is a boutique for slow journalism, without borders. Independent, non-partisan and employee-owned, F&O performs journalism for citizens, sustained entirely by readers: we do not carry advertising or solicit donations from foundations or causes.  Why? If you’d like to support our journalism, for $2.95 (the price of a cheap brew) you can subscribe to F&O for a month. If that breaks your budget, a one-day pass is $1.) 

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The Climate Models are Wrong! (Just not the models you think)

CHRIS WOOD: NATURAL SECURITY 
June 27, 2014  

A common line of attack for the propagandists, and the misled who imagine we are not altering Earth’s climate, is that climate projections rely on models. Models! Not the real thing. Why, they could be as made-up as a model of the space ship Enterprise! Pure fiction. 

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Coal power plant in Dattein, Germany. Photo by Arnold Paul, Creative Commons via Wikimedia

Of course, the richly researched ‘models’ that forecast where our climate is headed with increasing precision, are nothing of the sort. They are, in essence, mathematical mashups of the observed relationships that drive the real climate: how ocean currents move heat from here to there; how air masses transport moisture and more heat; how both are transferred where air and water, or air and land, meet; how different amounts of atmospheric gasses contain or release more heat from the planet. These relationships aren’t made up; they’re dictated by nature. And the models’ generally close match with reality, when ‘run’ against the known past, confirms their accuracy.

But there’s another kind of climate model. It’s one that tries to marry what scientists know about the dynamics of the global climate, to the very similar sorts of mathematical models that economists create to describe the marketplace. It’s called a “Dynamic Integrated Climate Economy” model — DICE. Its point is to determine just how much damage future climate change will really do to the economy — and therefore how much money it’s worth spending today to avoid that damage. 

As you can imagine, this is the kind of model dear to the heart of hard-nosed investors and therefor to politicians. Just how much is a future worth today? It provides what looks like knowledge, to support apparently rational decisions about, for example, just how much future damage is represented by each additional ton of greenhouse emissions today — and hence what price the emitter of that ton ought to pay as a disincentive to do so, the so-called “social price of carbon.” 

It turns out that the “industry standard” for such models today, the one that guides most government and large business decisions about how seriously to take climate change, takes some remarkable, and dangerously misleading short-cuts.

These emerged in a paper released recently by the London School of Economics, authored by economists Simon Dietz and Nicholas Stern. The latter is something of a giant in climate economics; he led the research group that produced the landmark Stern Review on the Economics of Climate Change, which in 2007 calculated sharply higher future losses than previous estimates.

In this paper, snappily titled, Endogenous growth, convexity of damages and climate risk, he and Dietz take on another icon of the specialty: William Nordhaus. It was he who more or less invented the DICE model, in the early 1990s. Two features assured its wide take-up: it was simple, and it was freely available.

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Nicholas Stern, 2009, Photo by Sebastian Derungs, Copyright World Economic Forum

Nordhaus’s original has been updated, as recently as last year. One advance Dietz and Stein applaud is a more nuanced equation for determining rising global temperatures. The original reduced the many hundreds of thousands of equations that drive a full climate circulation model, down to one very simple one that produced a global average temperature.

Set aside that averages are mathematical fictions that don’t describe the real climate we experience (pity the Canadian who dressed every day of the year for the global annual average temperature of 15oC). The very simplicity of the DICE model, as Dietz and Stern show, overlooked several critical realities — some emerging from new science, others from re-examining the model’s assumptions.

One of these is a “resource steady state” through the present century. This is already counter-factual. And DICE sharply discounts the value of future lives — considering the life of someone born 35 years from now worth half of a life today. Such discounting is a well-established practice in economics, but the appropriate rate is often debated.

Stern and Dietz disagree with those assumptions, but for the sake of making their main point they accept them. They focus instead on three they consider worse. 

DICE calculates economic growth based on an out-of-model (“exogenous”) variable: a presumed increase over time in economic productivity. The reality is that economic growth is a function, among other real-time events, of suitable weather and enough time between calamitous storms to rebuild — feedback events ‘within’ the world the model is modelling. And climate change is impacting those events in ways that both increase productivity in some places and reduce it in others.

A second over-simplification that loads the DICE, in Dietz and Stern’s assessment, is its use of a single, middle-of-the-road coefficient for how fast the world will warm up cocooned in a given concentration of greenhouse gasses. In fairness, this involved a vastly complex relationship that science has struggled to pin down with certainty into a single mathematical factor.

Even so, multiple runs of multiple climate models have created what statisticians know as a “probability distribution” — that is, the relative likelihood of different answers. And while DICE uses the middle of the pack, there is a non-trivial probability — what Dietz and Stern call a “fat tail” of model outcomes — that the climate will be more sensitive to greenhouse gasses than the middle-of-the-road estimate, causing a much faster increase in temperature. 

The third way DICE over-simplifies reality is the “low convexity” of the curve it displays to describe the onset of economic damage from climate change. Translation: as global temperature increases, its modeled damage to the economy also increases in a more-or-less linear way. That assumption leads the model to predict that it would take 18oC of warming just to knock the human economy down to half its present size. At that point humanity would be dead. 

The real economy and climate (not to mention biology) don’t react that way. The best scientific guess, and the nominal world target, is that anything more than 2oC in temperature rise over the pre-industrial era risks massive ecological disruption, and that 4oC would usher us into another planet where all bets are off.

Then there are the several ‘tipping point’ thresholds, where an additional tenth of a degree pushes the Rube Goldberg1 machine of climate into an entirely new configuration. One such has passed already, it appears, in the now-irreversible collapse of a significant part of Antarctica’s ice — and the now inescapable consequential future sea-level rise.

Dietz and Stern corrected those three elements in the model (leaving untouched other troubling areas such as its discount rate) and rolled Nordhaus’s DICE again. The figures it came out with now suggested that an acceptable climate future was worth a great deal more today than the model had previously calculated.

Expressed as the “social price of carbon,” the standard DICE models estimate that a price of about US$12 a ton of carbon emissions is sufficient to mitigate future economic losses due to climate change. That’s within the range of current prices in those places where carbon is traded now: roughly from US$8 to $US15 a ton.

With just those three adjustments to bring the model into better alignment with reality however, and with all else left the same, DICE recalculated the optimum price of carbon today as needing to be in the range of US$32 and US$103 by 2015 — between two and 12 times higher than the “industry standard” estimate. 

The point is not the precise dollar value. If more elements of the DICE model were similarly brought up-to-date with the science, it’s a cinch the difference would be even starker.

The more powerful indictment is that political leaders and corporate decision-makers are committing the treasuries of nations and corporations (often bigger than those of states) to paths of action that are based on forecasts which under-estimate our future losses by at least half, and likely by much, much more.

As Dietz and Stern have now demonstrated — these captains of industry and state might as well be driving from the holodeck of the Enterprise.

Copyright © 2014 Chris Wood

Contact: cwood@factsandopinions.com

Further reading:
1. Our Rube Goldberg World by Chris Wood on Facts and Opinions, March, 2014 
Stern Review: the Economics of Climate Change, World Bank: http://siteresources.worldbank.org/INTINDONESIA/Resources/226271-1170911056314/3428109-1174614780539/SternReviewEng.pdf 
Endogenous growth, convexity of damages and climate risk, London School of Economics: http://www.lse.ac.uk/GranthamInstitute/publication/endogenous-growth-convexity-of-damages-and-climate-risk-how-nordhaus-framework-supports-deep-cuts-in-carbon-emission/

 

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Cameron courts “heroic defeat” by European leaders

JONATHAN MANTHORPE 
June 27, 2014 

The humiliating defeat of British Prime Minister David Cameron in the election for the European Union’s top bureaucrat is probably the best thing that could have happened to him.

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UK Prime Minister David Cameron, official photo

Cameron took a calculated risk in the fallout from May’s elections for members of the European Parliament, in which right wing anti-EU parties including the United Kingdom Independence Party (UKIP) made unprecedented gains.

The results made Cameron’s credibility look threadbare, especially his pledge to renegotiate the terms of Britain’s membership of the EU. Cameron wants to grab back powers over national policy-making and legislation that have been handed over to Brussels. His plan is to put the results to a clear yes or no referendum in Britain in 2017, after the next general election, due in May next year.

But recent local and European elections in Britain show that a gathering tide of voters, both Conservatives and supporters of the opposition New Labour party, are so fed up with the intrusive nannyism of Brussels they are prepared to opt for UKIP and its populist leader Nigel Farage.

For any of his plans to stay on the drawing board, Cameron needs to win next year’s election, preferably with a majority. To have any hope of doing that without continuing his current uncomfortable alliance with the Liberal Democrats, Cameron needed to burnish his anti-Brussels credentials and marginalize UKIP.

He chose to fight tooth and nail to prevent the election of former Luxembourg Prime Minister Jean-Claude Juncker as head of the European Commission, the chief administrator of the EU’s daily business. Cameron was unstinting in his criticism of Juncker, who he lambasted as the ultimate Brussels insider, dedicated to filching the powers of member governments, and a barrier to internal reform.

From the beginning Cameron’s campaign was a piece of sound and fury signifying not much. There was never any chance that the British Prime Minister would be able to boost a candidate who could defeat Juncker, the chosen EU supremo of the European People’s Party, the largest group in the European Parliament.

When it came to a vote among the EU’s government leaders today, only Hungary supported Cameron. Given that there are grave suspicions whether the anti-democratic tendencies of the current regime in Budapest continue to qualify it for EU membership, Cameron’s defeat was conclusive.

Except at home. British Prime Ministers seldom suffer by standing up to what voters see as the crafty wiles of untrustworthy Europeans, and Cameron’s lone stand will likely be viewed as heroic by enough people to give him an electoral bounce.

The question is whether this will be a dead cat bounce. By his loud and blustery opposition to the choice of his fellow EU government leaders, has Cameron poisoned the water for his objective of negotiating a new and less entangled relationship between London and Brussels?

Has his performance in the last few weeks so irritated the other EU potentates that they will obstruct or simply ignore his campaign for reform?

Probably not. Juncker will doubtless be confirmed as the President of the EU Commission by the European Parliament, but this is a functionary’s job. He will be important as the manager of the day-to-day business of the EU, but the government leaders of the member states are careful to keep authority over the big issues in their own hands. That is of particular significance because the European Parliament is getting uppity and trying to grab decision-making powers the government leaders are determined to keep themselves.

And the relationship between Britain and the EU is a big issue on which the future of the group could depend.

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Ioannes Claudius Juncker, official European Parliament photo

Britain is already outside the common currency Eurozone and has not joined some of the treaty commitments to common government that have been accepted by other members. Cameron’s objective of even further loosening the ties between London and Brussels has implications for the entire EU project, not least because there are several other countries also chaffing at the dictates of the central bureaucracy and eager for relief.

The EU is already a two-track association. Only 18 of the 28 EU members are in the Eurozone and use the euro as their common currency. There is no consensus on such future projects as handing Brussels the power to evolve and manage such things as common foreign or defence policies. Britain’s desire to renegotiate its terms of EU membership will provide a context in which to debate some of these key issues about the group’s direction.

After Cameron’s defeat on the Juncker vote today, UKIP leader Farage scornfully described the outcome as “game, set and match to Brussels,” which was just what Cameron wanted.

Copyright © Jonathan Manthorpe 2014

Contact: jonathan.manthorpe@gmail.com 

Further reading:
Revolt against Brussels rattles European leaders by Jonathan Manthorpe on Facts and Opinions, May 2014
 Scottish leader downplays difficulties of independence by Jonathan Manthorpe on Facts and Opinions, April 2014

 

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Yesterday’s Man: Canada’s Peter MacKay

305px-Peter_MacKay_cropCanadian Justice Minister Peter MacKay has been the subject of a flurry of news stories, and almost as many satire pieces, about anti-woman comments  he is alleged to have made. Writer Charles Mandel responds with an opinion column for F&O’s THINK/Loose Leaf section:

Peter MacKay is yesterday’s man. 

According to Canada’s Justice Minister, women are dedicated moms and caregivers around the clock who are busy changing diapers, packing lunches and dropping the kids off at daycare. In contrast, men are dedicated fathers who are shaping the minds of the next generation.

This old-fashioned, blatantly sexist attitude recently surfaced in a pair of emails MacKay sent to his staff on the occasions of Mother’s and Father’s Days. Justice department employees apparently sent the emails to Canada’s national broadcaster, the CBC.

The Mother’s Day email lauded women for having “two full-time jobs: as hard-working department of justice employees during business hours, and as dedicated moms and caregivers … read more (column free of charge):

Canada’s Justice Minister is Yesterday’s Man

 

Facts and Opinions is a boutique for slow journalism, without borders. Independent, non-partisan and employee-owned, F&O performs journalism for citizens, sustained entirely by readers: we do not carry advertising or solicit donations from foundations or causes.  Why? If you’d like to support our journalism, for $2.95 (the price of a cheap brew) you can subscribe to F&O for a month. If that breaks your budget, a one-day pass is $1.) 

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Canada’s Justice Minister is Yesterday’s Man

CHARLES MANDEL
June 27, 2014

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Peter MacKay. Photo by Erin A. Kirk-Cuomo, Creative Commons

Peter MacKay is yesterday’s man. 

According to Canada’s Justice Minister, women are dedicated moms and caregivers around the clock who are busy changing diapers, packing lunches and dropping the kids off at daycare. In contrast, men are dedicated fathers who are shaping the minds of the next generation.

This old-fashioned, blatantly sexist attitude recently surfaced in a pair of emails MacKay sent to his staff on the occasions of Mother’s and Father’s Days. Justice department employees apparently sent the emails to Canada’s national broadcaster, the CBC.

The Mother’s Day email lauded women for having “two full-time jobs: as hard-working department of justice employees during business hours, and as dedicated moms and caregivers around the clock,” the CBC reported.

The Father’s Day message talked about the “immense and lifelong influence we have over our children” and spoke about how men’s words, actions and examples “greatly mould them into who they become.”

Apparently, the minister didn’t see anything wrong with the wording of the messages. A spokesperson for the minster emailed the CBC with this tepid response: “The minister takes every opportunity to thank staff for their contribution to the department and advancing justice issues on behalf of all Canadians.”

MacKay seems stuck in the 1950s, an era when advertising included such gems as Drummond Sweaters’ assertion that “Men are better than women! Indoors, women are useful – even pleasant. On a mountain they are something of a drag.”

How MacKay could have missed the entire feminist revolution is something of a mystery, but he appears to be walking about in his own personal cloud oblivious to the fact that women and men both defy traditional roles these days.

But then we are talking about a minister who allegedly called former Liberal MP Belinda Stronach, whom he once dated, “a dog” in the House of Commons in 2006. The incident, widely reported, led Stronach to demand an apology from MacKay and prompted her to say that the comment allegedly made during question period represented the “attitude of this government toward women.” 

MacKay denied making the comment.

If MacKay believes that women should be changing diapers and packing lunches, it’s hard to reconcile what the former Defence Minister’s attitude must be toward women in the military. If they’re posted to foreign destinations on missions, it’s obvious they’re not able to change diapers. Is MacKay okay with military spouse fathers doing that in that instance?

Whether or not he is, is irrelevant because the latter happens regardless of MacKay’s outdated attitude. What is concerning is how someone can climb so high within Canada’s government and have so much influence and yet be so hide-bound. It suggests a systemic viewpoint within the federal government itself that they’re able to ignore such ridiculous statements and even condone them. 

To have the justice minister wield such stale ideas is troubling. A related story from the Toronto Star questioned MacKay over a lack of women and visible minority judges on Canada’s courts. MacKay reportedly told the Ontario Bar Association that women weren’t applying and were worried they’d be dispatched on circuit work to hear cases across a region, “a prospect he described as unappealing for women with children at home,” the Star reported. MacKay denied this via a statement on his Facebook page  in which he called the stories “inaccurate and inflammatory rhetoric in the media based on false comments attributed to me.”

 Liberal Members of Parliament called his remarks — which MacKay responded were mischaracterized and misrepesented– sexist and demanded an apology. Hansard recorded the exchanges in the House of Commons, including a comment by MP Chrystia Freeland, “the Minister of Justice recently made remarks to the Ontario Bar Association that were so strikingly sexist that lawyers there described them as offensive.”

In his attitudes, MacKay shows he is yesterday’s man – but those same attitudes are certain to catch up with him at the polls, when more than 50 per cent of the population – upset with his remarks and tired of his patronizing positions – will make him yesterday’s man in more ways than one.

Copyright Charles Mandel 2014

References:  
HANSARD, Parliament of Canada, transcript June 19, 2014: http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=41&Ses=2&DocId=6683475
CBC story, including the original emails: http://www.cbc.ca/news/politics/peter-mackay-lauds-moms-for-changing-diapers-dads-for-moulding-minds-in-holiday-messages-1.2686099
  
Toronto Star story: Peter MacKay tries to explain lack of diversity on federal courts: http://www.thestar.com/news/canada/2014/06/18/peter_mackay_tries_to_explain_lack_of_diversity_on_federal_courts.html 
Peter MacKay’s Facebook page: https://www.facebook.com/pages/Peter-MacKay/104817488512?fref=ts
CBC story, MacKay denies referring to Stronach as a dog: http://www.cbc.ca/news/canada/mackay-denies-referring-to-stronach-as-a-dog-1.625723

 

Facts and Opinions is a boutique for slow journalism, without borders. Independent, non-partisan and employee-owned, F&O performs journalism for citizens, sustained entirely by readers: we do not carry advertising or solicit donations from foundations or causes.  Why? If you’d like to support our journalism, for $2.95 (the price of a cheap brew) you can subscribe to F&O for a month. If that breaks your budget, a one-day pass is $1.) 

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Ruling Alters Canada’s Balance of Native Rights

Cattle drive on the Chilcotin Highway, British Columbia. Photo Deborah Jones © 2012

Cattle drive on the Chilcotin Highway, British Columbia. Photo Deborah Jones © 2012

Canada’s top court greatly expanded aboriginal rights in Canada’s westernmost province, in what may stand as a landmark decision affecting control of a vast swath of land and resources, in British Columbia and beyond.

The case, Tsilhqot’in Nation v. British Columbia, was sparked in 1983 when the provincial government licenced a commercial company to log the Chilcotin. The licence was disputed by the Chilcotin residents who lived there long before the mid 2800s when — without their consent — England claimed the land as a colony, and named it British Columbia.

Today the Supreme Court of Canada granted a historic “declaration of Aboriginal title,” and ruled the province of British Columbia had breached its duty to consult with the Tsilhqot’in Nation on the licence.

The ruling matters greatly because the logging dispute is just one of a myriad of specific complaints embedded in hundreds of historic, sweeping and unresolved aboriginal claims that cover almost the entire province. Today’s decision will have an impact on each and every one of them …. read more (this Dispatch, in Justice, is free of charge):

Canadian Court Expands Aboriginal Rights 

 

Facts and Opinions is a boutique for slow journalism, without borders. Independent, non-partisan and employee-owned, F&O performs journalism for citizens, sustained entirely by readers: we do not carry advertising or solicit donations from foundations or causes.  Why? If you’d like to support our journalism, for $2.95 (the price of a cheap brew) you can subscribe to F&O for a month. If that breaks your budget, a one-day pass is $1.) 

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Canadian Court Expands Aboriginal Rights

By Deborah Jones
June 26, 2014

Canada’s top court greatly expanded aboriginal rights in Canada’s westernmost province, in what may stand as a landmark decision affecting control of a vast swath of land and resources, in British Columbia and beyond.

The case, Tsilhqot’in Nation v. British Columbia, was sparked in 1983 when the provincial government licenced a commercial company to log the Chilcotin. The licence was disputed by the Chilcotin residents who lived there long before the mid 1800’s when — without their consent — England claimed the land as a colony, and named it British Columbia.

Cattle drive on the Chilcotin Highway, British Columbia. Photo Deborah Jones © 2012

Cattle drive on the Chilcotin Highway, British Columbia. Photo Deborah Jones © 2012

Today the Supreme Court of Canada granted a historic “declaration of Aboriginal title,” and ruled the province of British Columbia had breached its duty to consult with the Tsilhqot’in Nation on the licence.

The ruling matters greatly because the logging dispute is just one of a myriad of specific complaints embedded in hundreds of historic, sweeping and unresolved aboriginal claims that cover almost the entire province. Today’s decision will have an impact on each and every one of them.

British Columbia is a land of lush coastal rain forests rising eastward to towering mountain ranges interspersed with forested valleys and grassland plateaus. Its 944,735 square kilometres are now home to some 4.6 million people whose origins span the globe. The last reliable federal census, in 2006, estimated the province’s remaining aboriginal population at 196,075

Disputes between aboriginals, governments and corporations are constant, and currently waged over mines, oil and gas development, pipelines including proposals by Enbridge and Kinder Morgan to pipe bitumen from the Alberta oil sands to the west coast, and fishing, forestry, and agriculture operations.

Today’s court ruling ends a gruelling and lengthy legal saga that began when Tsilhqot’in member Roger William challenged the logging licence on behalf of the Xeni Gwet’in and Tsilhqot’in First Nations.

Northwest-relief_ChilcotinPlateau

Chilcotin Plateau (Public domain via Wikimedia)

The Tsilhqot’in are famous for the so-called Chilcotin War, in which aboriginals killed workers building a road through their territory in 1864. In 1983 they issued a declaration of sovereignty. They were never going to accept commercial logging on their territory without a fight.

The battle was soon joined by the federal and other provincial governments, business and industry groups, interest groups, other aboriginal organizations and even Amnesty International.

It wound its way through provincial courts and conflicting rulings for decades. For the Supreme Court dénouement last fall William led band members on a cross-Canada tour to the court hearing in Ottawa.

Today’s Supreme Court’s decision overruled a British Columbia Court of Appeal decision that, in effect, restricted aboriginal title to small specific zones.

Said the country’s top court: “Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but 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.”

Advocates of aboriginal title immediately claimed the ruling will have an impact on Canadian territory far beyond British Columbia.

“This is a win not only for First Nations across Canada, it’s a win for the province and the country,” Roger William told iPolitics.

“This is the first time a declaration of Aboriginal title has ever been granted by a Canadian court,” noted the national Assembly of First Nations in a statement. “This is truly a landmark decision that compels us all to embark on a new course,” the statement quoted assembly spokesperson Ghislain Picard. “The court has clearly sent a message that (governments) must take Aboriginal title seriously and reconcile with First Nations honourably.  This decision will no doubt go down in history as one of the most important and far reaching ever rendered by the Supreme Court of Canada.” 

The provincial government reacted with caution to the loss and said it would take time to analyse the ruling. Attorney General Suzanne Anton told a morning press conference in Vancouver the ruling provides clarity, and added, “we believe it will be very helpful.” She noted the court case was lengthy, and stressed the province’s desire to negotiate rather than fight via lawyers. “We all know the success that come when we choose to negotiate rather than litigate. When that happens we all win.”

The federal government released a statement that also said it would take time to review “complex and significant legal issues.” It quoted Bernard Valcourt, Minister of Aboriginal Affairs and Northern Development: “the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians.” 

Today’s ruling altered and refined the raw balance of competing rights on which Canada was founded, and teeters.

At the very least, it gives aboriginal groups a much stronger hand: it may not preclude governments from infringing on First Nations, but it clearly requires them to honour duties owed aboriginals under section 35 of Canada’s 1982 Constitution Act. The province’s logging licence granted in the Chilcotin, said the court, was “inconsistent with its duties owed to the Tsilhqot’in people.”

 Copyright Deborah Jones 2014

Contact: Editor@factsandopinions.com

~~~

Excerpts of Supreme Court of Canada’s unanimous decision, written by Chief Justice Beverly McLachlin:

What is the test for Aboriginal title to land?  If title is established, what rights does it confer? Does the British Columbia Forest Act, R.S.B.C. 1996, c. 157, apply to land covered by Aboriginal title?  What are the constitutional constraints on provincial regulation of land under Aboriginal title?  Finally, how are broader public interests to be reconciled with the rights conferred by Aboriginal title?  These are among the important questions raised by this appeal.

These reasons conclude:

  • Aboriginal title flows from occupation in the sense of regular and exclusive use of land.
  • In this case, Aboriginal title is established over the area designated by the trial judge. 
  • Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it.
  • Where title is asserted, but has not yet been established, s. 35  of the Constitution Act, 1982 requires the Crown to consult with the group asserting title and, if appropriate, accommodate its interests.
  • Once Aboriginal title is established, s. 35  of the Constitution Act, 1982  permits incursions on it only with the consent of the Aboriginal group or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group; for purposes of determining the validity of provincial legislative incursions on lands held under Aboriginal title, this framework displaces the doctrine of interjurisdictional immunity.
  • In this case, the Province’s land use planning and forestry authorizations were inconsistent with its duties owed to the Tsilhqot’in people.

~~~

“For centuries the Tsilhqot’in Nation, a semi-nomadic grouping of six bands sharing common culture and history, have lived in a remote valley bounded by rivers and mountains in central British Columbia.  It is one of hundreds of indigenous groups in B.C. with unresolved land claims. In 1983, B.C. granted a commercial logging licence on land considered by the Tsilhqot’in to be part of their traditional territory.  The band objected and sought a declaration prohibiting commercial logging on the land.  Talks with the province reached an impasse and the original land claim was amended to include a claim for Aboriginal title to the land at issue on behalf of all Tsilhqot’in people.  The federal and provincial governments opposed the title claim.” 

~~~

“The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms.  Aboriginal title flows from occupation in the sense of regular and exclusive use of land.  To ground Aboriginal title “occupation” must be sufficient, continuous (where present occupation is relied on) and exclusive.  In determining what constitutes sufficient occupation, which lies at the heart of this appeal, one looks to the Aboriginal culture and practices, and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation.  Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but 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.”

 ~~~

“Aboriginal rights are a limit on both federal and provincial jurisdiction.  The problem in cases such as this is not competing provincial and federal power, but rather tension between the right of the Aboriginal title holders to use their land as they choose and the province which seeks to regulate it, like all other land in the province.  Interjurisdictional immunity — premised on a notion that regulatory environments can be divided into watertight jurisdictional compartments — is often at odds with modern reality.  Increasingly, as our society becomes more complex, effective regulation requires cooperation between interlocking federal and provincial schemes.  Interjurisdictional immunity may thwart such productive cooperation.”

~~~ 

In the result, provincial regulation of general application, including the Forest Act, will apply to exercises of Aboriginal rights such as Aboriginal title land, subject to the (Canadian Constitution)  s. 35  infringement and justification framework.  This carefully calibrated test attempts to reconcile general legislation with Aboriginal rights in a sensitive way as required by s. 35  of the Constitution Act, 1982  and is fairer and more practical from a policy perspective than the blanket inapplicability imposed by the doctrine of interjurisdictional immunity.  The result is a balance that preserves the Aboriginal right while permitting effective regulation of forests by the province.  In this case, however, the Province’s land use planning and forestry authorizations under the Forest Act were inconsistent with its duties owed to the Tsilhqot’in people.

  

Who was involved in the case?

The main parties are:

Roger William, on his own behalf, on behalf of all other members of the Xeni Gwet’in First NationsGovernment and on behalf of all other members of the Tsilhqot’in Nation

Appellant

and

Her Majesty The Queen in Right of the Province of British Columbia, Regional Manager of the Cariboo Forest Region and Attorney General of Canada

 

Interveners included:

Attorney General of Quebec, Attorney General of Manitoba, Attorney General for Saskatchewan, Attorney General of Alberta, Te’mexw Treaty Association, Business Council of British Columbia, Council of Forest Industries, Coast Forest Products Association, Mining Association of British Columbia, Association for Mineral Exploration British Columbia, Assembly of First Nations, Gitanyow Hereditary Chiefs of Gwass Hlaam, Gamlaxyeltxw, Malii, Gwinuu, Haizimsque, Watakhayetsxw, Luuxhon and Wii’litswx, on their own behalf and on behalf of all Gitanyow, Hul’qumi’num Treaty Group, Council of the Haida Nation, Office of the Wet’suwet’en Chiefs, Indigenous Bar Association in Canada, First  Nations Summit, Tsawout First Nation, Tsartlip FirstNation, Snuneymuxw First Nation, Kwakiutl First Nation, Coalition of Union of British Columbia Indian Chiefs, Okanagan Nation Alliance, Shuswap Nation Tribal Council and their member communities, Okanagan, Adams Lake, Neskonlith and Splatsin Indian Bands, Amnesty International, Canadian Friends Service Committee, Gitxaala Nation, Chilko Resorts and Community Association and Council of Canadians

Further reading: 

The Supreme Court of Canada ruling is here: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do?r=AAAAAQAMZmlyc3QgbmF0aW9uAAAAAAE#_Toc391480045  
Section 35 of Canada’s 1982 Constitution Act: http://laws-lois.justice.gc.ca/eng/const/page-16.html
Tsilhqot’in National Government site: http://www.tsilhqotin.ca 
Declaration of Sovereignty: http://www.tsilhqotin.ca/pdfs/Administration/83DeclarationSovereignty.pdf 
Assembly of First Nations press release: http://www.afn.ca/index.php/en/news-media/latest-news/assembly-of-first-nations-congratulates-tsilhqotin-national-government
British Columbia Statistics, aboriginal population: http://www.bcstats.gov.bc.ca/StatisticsBySubject/AboriginalPeoples/CensusProfiles.aspx
Wikipedia page for the Chilcotin War: http://en.wikipedia.org/wiki/Chilcotin_War

 

 

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Affiliation and Dual Passports Complicate Journalist’s Case

passport“A Canadian is a Canadian and deserving of diplomatic protection, whatever one thinks of his or her affiliations,” writes  International Affairs analyst Jonathan Manthorpe. Today’s column deals with an Egyptian court’s sentences of three journalists this week. Two complications plague the controversial case: the tricky issue of dual citizenship, and their employment by Al Jazeera, a news outlet whose English service professionalism is widely respected, but not in any way matched by its controversial Arabic service. An excerpt:

It’s easy and entirely justifiable to let loose an outraged rant at the prison sentences handed down in Egypt to three Al Jazeera journalists, including Egyptian-Canadian Mohamed Fahmy, after a piece of judicial theatre so farcical it denigrates the name of kangaroo courts.

But whether Fahmy, the acting bureau chief in Egypt for the Al Jazeera television network, Australian journalist Peter Greste and Egyptian producer Baher Mohammed deserve more consideration than the thousands of other people caught up in the Middle East power struggle is a more difficult question.

Like all journalists operation in conflict zones, they took measured risks in order to do their jobs. That doesn’t mean they are the authors of their own fate, but it does mean they knew what they were getting into, or should have done.

The three were arrested on December 29 last year at Cairo’s Marriott hotel where they had set up a temporary office while they reported on protests against the military ouster of the Muslim Brotherhood administration of President Mohammed Morsi the previous July. After the coup, the military declared the brotherhood a terrorist group. The three Al Jazeera men were accused of supporting the Muslim Brotherhood, broadcasting “false news,” and undermining Egypt’s national security by suggesting the country was on the brink of civil war … read more (subscription required*)

*Log in on the top right of each page (or click here to purchase a subscription or a $1 site day pass) to read:

Dual Citizenship no Guarantee of Protection

For deeper background on the dynamics surrounding Egypt’s government, Al Jazeera, and the state of Qatar – which owns Al Jazeera – read Manthorpe’s column earlier this month, in which he explains how “from being the poster boy for a modernizing Middle East, the filthy rich Gulf state of Qatar has become a menace:”

Soccer bribery is the least of Qatar’s sins

Jonathan Manthorpe’s columnist page is here.

Facts and Opinions is a boutique for slow journalism, without borders. Independent, non-partisan and employee-owned, F&O performs journalism for citizens, sustained entirely by readers: we do not carry advertising or solicit donations from foundations or causes.  Why? If you’d like to support our journalism, for $2.95 (the price of a cheap brew) you can subscribe to F&O for a month. If that breaks your budget, a one-day pass is $1.) 

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