The CRTC, Bell, and a Brief History of Piracy in Canada

Web PirateRecent headlines about the CRTC, and a Bell-led consortium against piracy, are making waves on the Web right now. What’s the CRTC role in combating Internet piracy? What is Bell and other internet service providers’ place in the discussion? Margo Langford, who is part of our Law 206/706 course, Intellectual Property of Law, is here to help. We talk about the CRTC, the Bell consortium, and piracy law, but also some of the history of copyright on the Internet, why Napster might have survived in Canada, international legislation, and much more. This could be its own podcast!

If you’re interested in IP issues, check out Law 206/706, Intellectual Property Law, at takelaw.ca. This course is a must if you’re interested in patents, trademark or copyright — whether you’re writing a novel or crunching code for your new app, it’s essential to understanding your rights in Canada.

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

00:00 Matt: What I’ve seen and I know we’re gonna go somewhere different with this, but what I’ve seen is this… The CRTC decision to deny Bell and a number of other organizations who’s kind of formed a group kind of this sort of advanced power over privacy, and that’s the headline that I saw flying past me. So I thought it might be useful to start with what is the CRTC’s role in copyright enforcement in Canada?

00:26 Margo: Yeah. When I read the decision from the CRTC I actually understood that the collective of broadcasters and web owners were actually trying to get a website up, or technology up, to block infringing content. So not so much privacy as it was illegal use of other people’s content, what we call piracy in the copyright world. So what they were trying to do was get CRTC really to step outside of its traditional mandate, which is a regulator of content and of rates for the broadcast industry and the telecom industry, and get it to step into the copyright world. We have a copyright board and it also doesn’t deal with infringement, it deals with tariffs for the use of other people’s content in a legal context.

01:20 Margo: So what we’ve had in Canada forever and in most countries in the world are both civil and criminal private rights of action where the rights owners, who have their content infringed, collectively or individually go to court. So they either sue or they try and get the police involved. In our copyright law in Canada, we have both. You can take a criminal action but it’s very difficult. Having been a pirate buster myself I can tell you, extremely difficult to get the police involved. And they only do it really, if there is a criminal who has a rap sheet already and they’re using it as a way to bring that person into the justice system. So, we generally have formed collectives in Canada and we go back to the early 1920s with the composers forming the first collective, which was called SOCAN, and since then just about every kind of rights group has formed a… Content rights group has formed a collective. So we’ve got them for… We got CanCopy for book publishers and we have, well, just a myriad of them and I think in the music industry alone because we have… Quebec has separate ones, we have about six music rights collectives that go out there and look for pirated material and take action.

02:40 Matt: Right. And I’ve seen, if you, as a for instance, if you go to a bar and you’re being served and you look behind the bar tender you can often see like the SOCAN License to Play sticker somewhere saying that they’ve worked through this collective and they’re paying a fee for a tariff and that gives them the right to play copyrighted music in their establishment.

03:00 Margo: Right, because it’s a commercial establishment, which is different than playing it at home.

03:04 Matt: So we’ve got this kind of tiered… I don’t know if tiered is the right word, but there’s a system under which kind of there’s regular folk who access this music through the radio or they hear it at the bar, they hear it in a store, they hear it in the mall. Then there are these collectives that basically allow people to pay money for tariffs that give them the right to play all this music that we’re hearing in these various places.

03:28 Margo: Right, or they can incorporate it into a film or to make multiple copies on campus for publications they wanna use, etcetera. So yeah, depending on what the content is, somebody somewhere, if you’re using content or seeing content in public, chances are somebody has a licence and somebody’s paying.

03:48 Matt: Right. And then there’s a fuzzy part, that I’ll get to in a second, and then there’s the CRTC, which is I feel like it is more of kind of a regulator of sort of the infrastructure of it all.

04:00 Margo: Correct.

04:01 Matt: So they give a radio station a license to be a radio station, but they are not responsible for the licensing of the content of the radio station.

04:10 Margo: No, except that in Canada we decided that it was really important to have Canadian content. So they regulate, they put some rules around those licenses and so they have a certain minimum amount of Canadian content that has to be produced, for example, but they don’t actually regulate things like infringement of content.

04:28 Matt: And the fuzzy bit in the middle that I don’t quite understand is sort of Bell, as they seem to be kind of the public face of this group, they are now getting more involved in terms of saying we want to set up and do things to block infringers.

04:43 Margo: Right. And so, interestingly, there was a collective of the web service providers back in the late 19… Like about, I would say, 1995 through to sometime, I think, the group disbanded somewhere in the 2000s. It was called the Canadian Association of Internet Providers and I was actually part of that and was actually chair for a while. And we formed this collective exactly for reasons like this, which was that collectively, we were all experiencing challenges with content, some of it very illegal and criminal and nasty, and so we wanted a whole bunch of rules about first of all what ISPs would do, and then what the content owner could do. We came up with a kind of what we called “notice and notice.” So in the United States they were doing something already, being that much ahead of us in the internet called “notice and take-down.” So basically I would give an ISP notice that their… My music is being infringed on that particular website and basically they took me at my word in the United States, and they took it down and that caused them, of course, some problems as well because something that’s… Might not actually be true. And what kind of proof was required to say it was mine and all of those kinds of issues. So we decided… And there was also the issue of privacy and maybe this is where the confusion comes in.

06:17 Margo: If I wanna deal with a website I have to know who owns that website. And I can’t deal with them directly, so I have to go through my ISP, but ISPs had locked lips about who their customers were. And so they didn’t want to disclose to any old third party who would show up saying, “I have a right and this guy is infringing it.” Because that would be sharing their customer information. So they had… We came up with something called notice and notice, which was basically, “You tell the ISP you got a problem and the ISP will tell the owner of the website.” And if they think that they have a right to be using that then they come back with their information on how they got the right to use that piece of content and why they’re not gonna take it down.

07:07 Margo: Notice and notice worked really well in Canada, we didn’t have then any of the problems about disclosing customer information. People generally took them down because they didn’t know, there was so much content in the internet. It’s very hard for an ISP or a website owner, even. Some website owners are liable for it because they’ve put the content up, but for an ISP to know whether or not content on somebody’s website is legal or not would be impossible. So that worked for a while as a voluntary method, and then in 2012 when the Copyright Act was amended, that went into actual formal law. So that’s actually what Bell and Rogers are trying to do in the… The system they were trying to set up through the CRTC was actually a notice and notice system, which basically says, “Internet providers have the right to remove or block access to content upon receiving notice.” So it was pretty straightforward, they just didn’t wanna have to do it themselves and they didn’t have a collective to do it, and they thought the CRTC should or should at least allow them to create a technology means of doing it.

08:16 Margo: And then they basically said, “No. I guess what you got going now is good enough, it’s in law, you can form a collective to do it if you want, and do it yourselves the way other rights groups have done it. But we’re not gonna start taking on or allowing you to have some sort of hyper rights to deal with infringement.”

08:40 Matt: So the CRTC’s take was kind of, “This is out of scope for us to say yes or no to?”

08:44 Margo: Yeah, I think that’s really what it comes down to. They’ve never been in the infringement world and they’re not about to step into it.

08:51 Matt: Right. So as someone who’s been involved in this in the past, I guess my natural curiosity… My curious question is, why do they care? If you build a road, you’re kind of agnostic as to whether the traffic on that road is criminal or not criminal, so if you own the pipe, why do they feel obliged to be involved in what traffic is going through the pipe?

09:17 Margo: I’m not sure why they want to be. Maybe they just feel that they lack the tools to do it effectively. And ’cause the last thing on earth we certainly wanted as a collective of ISPs, was to be in any way liable. And there was a case, it went all the way to the Supreme Court of Canada, basically, about common carrier liability. Whether or not if you were just a pipe, whether you would be liable for the content, and it ruled in favour of the ISPs. It says, “No. If you’re not actually aggregating the content yourself then you are just the pipe, then you’re not liable.” The second… There’s a lot of hybrid rights, so a lot of ISPs are also website creators and owners and builders and whatever. So the second that you move into the content creation side, well, then you’re wearing a different hat and then you could be. So I think also all of these companies are such hybrids now. It may be that from their content side, in their content creation side, they wanna protect their own content and they wanna block illegal content.

10:18 Matt: So there’s a certain amount of, they may in fact own IP that they want to protect and that they’re trying to facilitate the means of protection through this method they have devised.

10:31 Margo: But of course the world is completely international, in terms of the internet and where most of the infringement is taking place.

10:37 Matt: I was gonna say, we’ve been talking about this in a Canadian context, but you’re right, it’s an international issue. My internet access is not Canadian, my internet access is global. So how is this affected by international treaties and international agreements?

10:51 Margo: It’s terribly difficult [chuckle] because the copyright laws, although very similar because of treaties, in which basically are that they’re kind of normative setting guidelines for countries to form their laws around some agreed upon principles, but there’s wrinkles in everyone. So the Canadian copyright law’s slightly different than the US in a number of ways, and then the treaties are not always ratified by all the countries in the world. So not everybody is playing by the same rules, but generally over the last 100 years it’s been fairly well harmonized. Interestingly, we’ve just formed another treaty, and that’s with the US and Mexico. And there were some issues around copyright that had to be harmonized. One of them was the length of copyright.

11:41 Matt: Yeah, things are longer now.

11:42 Margo: Yeah. We expanded to 70 years, it was 50 in Canada, life of the author plus 70 years now, which gives the owners more protection. But the other one was actually the notice and notice story. We do not have the same regime, as I was mentioning, as the US, they have notice and take-down still in their law. And we got an exemption, and we are allowed to continue with our notice and notice, which is actually fantastic because it’s really working. I don’t know if it’s working in the States, I really can’t speak. But I’ve been in-house counsel in an ISP and I’ve been involved right in the front end of getting a notice and what we do with it, and I have been involved with a lot of content owners trying to protect their rights. And as far as I’m concerned, we have a pretty good regime. The problem is that when the infringement is taking place offshore, you really have very few tools.

12:41 Matt: I think there’s a pervasive understanding that things are different, nation to nation, and this idea that there are different rules in different places, so if you have got something that originated in this place, different rules apply. Copyright happens in the country that things start from, right?

12:58 Margo: Where the creator, yeah, has made whatever it is, what piece of content they’ve created is the origin of the copyright. But the interesting thing about the internet, it brought on, I think, I would call the era of technological measures to actually address infringement. We really can’t do it with laws super inefficient to try and sue somebody. So what’s really happened is people try to lock down their content with tools, so you can’t get access to content that’s… People probably are most familiar with it with Netflix, because you can’t get content that’s not licensed for Canada on Canadian Netflix. It’s just the way the rules work and technology permits that to happen. Napster being one of the more fascinating stories about the genesis of these technology tools, and the difference between Canada and US copyright law. Because if Napster had actually been in Canada, they wouldn’t have been guilty of anything.

14:02 Matt: Really?

14:02 Margo: Yes, because we have something in the United States called contributory infringement. So the fact that it was a website that allowed people to file share in the United States was contributing to the infringement and therefore they were liable. But if they’d been in Canada, and they’d set up their service on a Canadian server and then a Canadian company, we don’t have contributory infringement and they would have just been that common carrier. They put the technology there and they allowed people to file share and they weren’t actually doing the copying. That’s been an interesting thing to watch as well.

14:41 Matt: I think we could talk for days about this. I think one of the things I kind of understand about this is it matters where the data resides. So if I have a website, I’m sitting here in my office in Canada, I make my website in Canada but it’s hosted by Squarespace, and the actual server’s in LA, so that’s now a US law thing around the data because that’s where the server is?

15:06 Margo: Still probably a little bit unsettled law.

15:09 Matt: Okay.

15:10 Margo: Because it’s really hard to say. Sometimes it’s where it’s been uploaded from, and this goes into satellite law, that was the first upload and download copyright cases. I don’t think we have enough body of law yet about whether the law of the server applies or not, there’s cases on both sides of it.

15:32 Matt: Right. Anyway… Again, it’s fascinating, pads off in all directions, but back to the core idea of, there was a consortium that wanted to implement new anti-piracy measures and the CRTC said no. Is there anything we haven’t covered there that we should unpack a little bit?

15:50 Margo: Well, I’m just gonna circle back and say the thing about Napster is, it was created in a vacuum before all of the music companies could get together and create their own aggregate site. And so there was something called The Madison Project, IBM was actually… Had all of the music companies on board into this project, and they were trying to come up with their own Napster before Napster appeared on the scene. And they had challenges trying to get those music pieces licensed from the composers, because they were individually licensed in all different countries and people weren’t willing to give up their royalties. And so by the time they got all the legal stuff worked out, they lost the window of opportunity to go to the public with an offering. You saw a little better job when it came to iTunes, when they finally got some act together, but that’s such a small part of what music is actually being consumed on the internet. I think, I don’t know, I’ve heard somewhere between 1% and 10% of the music’s actually paid for on the internet. So we now have a whole generation of people who believe that it’s okay to infringe anyone’s content, that content is free. And I think we have some major challenges for creators as a result.

17:07 Matt: Right. Sorry, when you’re saying 1% to 10% is actually paid for, does that 1% to 10% also include streaming, like Spotify, Google Play?

17:14 Margo: Mm-hmm, mm-hmm.

17:16 Matt: That’s… Oh, wow, that is very different than I thought.

17:18 Margo: Yeah, yeah. The illegal is far eclipsed in the decades that ensued since Napster. It’s just grown as opposed to shrunk. And so part of that is there’s been the resistance, I think, to use the technology tools to stop people from actually getting access to content. So in part that is because people got so used to being able to get it, so now it’s viewed as, “Well, we’ll release some of it for free because this will build a fan base,” or whatever. But it is… I have represented many musicians in the interim, and it’s very hard. Your income is extremely dispersed now. You might make a few bucks on each of the websites that you put your songs on, but you’re not making the kinds of money you used to get with mass sales of records.

18:08 Matt: And so I guess the last question for me would be, Bell et al have put together a consortium and said, “This is something we want to do.” And the CRTC has said, “Not really our bailiwick to say yes or no to this so we’re not going to say, ‘Yes, do it.'” But they’re clearly not gonna give up. So where do you sort of go from here? Where would they take this?

18:30 Margo: I do think that they can just do it.

18:33 Matt: Okay.

[chuckle]

18:34 Margo: As Nike would say.

18:35 Matt: Right.

[laughter]

18:36 Margo: That I think they know they… They did have a mechanism before as a collective to take collective action because obviously one company doing it on its own is, again, not really the answer, but they could create, either with the group they have now or expand their collective and do it themselves.

19:00 Matt: You’ve been very generous with your time, so I don’t wanna get into another whole thing if this is another whole thing, but is this… Does net neutrality plug into this argument at this point or is that a sort of a different ball of wax?

19:12 Margo: I think it’s a very different ball of wax.

19:13 Matt: Okay.

19:14 Margo: That’s really about access to the internet.

19:16 Matt: Right.

19:16 Margo: Well, I guess it get does play in in that people are talking about walled gardens, of creating, again, the technology’s limited access for content. I don’t think we’ve got enough to… I don’t think we’ve figured any of this out well enough yet.

19:34 Matt: Right.

19:35 Margo: [chuckle] I just think it’s sometimes happening much faster than all the existing mechanisms that are in place can react to it.

19:43 Matt: Well, we may have to check in again at some point soon about this or start a spin-off podcast, but for now, thank you very much, Margo.

19:49 Margo: It was a pleasure to be here, Matt.

The Contracts Nobody Reads

Devouring Phone Contract. Illustration: Valérie DesrochersNobody reads those “end user license agreements” that pop up on your phone or computer, right? We’ve all seen probably thousands of these things. We all just click “Agree”. Who has the time?

So if nobody reads them, do they matter? And if you do read them, what should you know?

Peter Kissick, the course designer for Law 204/704, Corporate Law, dropped by to answer those questions and more. He knows contracts, and we get into the details of all the documents nobody actually reads.

 

Transcript:

00:03 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I’m Matt Shepherd, and I’ve never read one of those end-user license agreements. Who has? We’ve all seen probably thousands of these things, we all just click agree. Who’s got the time? So if nobody reads them, do they matter? And if you do read them, what should you know? Peter Kissick, the course designer for Law 204/704: Corporate Law, dropped by to answer these questions and more. He knows contracts, and we get into the details of all the documents nobody actually reads. This podcast is brought to you by the Queen’s Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

00:53 MS: I have probably read thousands or seen, never read. I’ve probably seen but never read thousands of these license agreements in my time. I’ve been using computers for a long time so these little screens have been popping up, and I’ve been agreeing for a long time. Peter, what’s going on with these? [chuckle] What are they? What am I looking at?

01:11 Peter Kissick: We refer to these things as broadly standard form contracts or contracts of adhesion because they actually pre-date computer licenses. And you can think back to a simple agreement when you park a car and there’s a sign that says, “By parking your car, you agree that we, the owner of the parking lot, is not responsible for any damage to your car.” That’s one of the original standard form contracts or contracts of adhesion. And we see them a lot in the consumer context. For instance, your utilities bill, or if you sign up for a cell phone or something like that, there’ll always be, probably pre-printed, a standard form contract like this.

01:54 PK: But I think what you’re referring to is E-U-L-A or EULA, end-user license agreement, that we often see as a pop-up whenever we want to put, oh, I don’t know, say, you could do iOS or something like that or put some operating system onto our computer or a new app or something to that effect. And I’m assuming that’s what you’re talking about, and you probably agreed to them. As you say, you started off by saying you’ve read a thousand of them. I’m betting that you are like 99.9% of the rest of the world and you’ve never actually read one or you don’t read them as you go.

02:32 MS: Sometimes I’ve sort of scrolled through real quick and thought, “Hmm. That’s interesting,” but I haven’t… No, I’ve never actually… Until the other day, for this, I actually printed out and sat down and read one. They’re legal, like they have force in law.

02:44 PK: No… And in fact, I’ve often had, I’ve had students come to me and say, “Well, I click on it, it doesn’t mean anything, right?” Well, to which I answered, “Well, why did you click something that said, ‘I agree’ or ‘I accept’?” Ontario law, in fact, is not inconsistent with the law of the rest of the world that says, “Simply by clicking, ‘I agree,’ whether you read it or not, you are bound by those terms.” So the simple click of a, a mouse click on an icon or some sort of box on your computer screen is going to be synonymous with a signature.

03:20 MS: Right.

03:20 PK: So read it or not, you’re bound.

03:23 MS: And people have done some pretty hilarious things with the fact that people don’t read these.

03:28 PK: Yeah. It is one of those ironies, right? People don’t think they’re bound but they are. Probably many users of these, the people who create these license agreements or consumer contracts probably count on the fact [chuckle] that people don’t read them. But it’s created sort of an interesting sort of a cottage industry of strange and somewhat bizarre and hilarious examples of what has been buried in these agreements. There’s one example, PC Pitstop I think was the name of the company, that buried in its EULA a provision that said, “The first person to get back to us will receive a prize of a thousand dollars.” It was buried in the midst of all the terms, and it took them five months to actually give away the thousand dollars because nobody bothered to read it.

04:27 PK: There was another company, I believe it was an antivirus software company, that on April Fool’s Day changed their license agreement terms and again buried in the midst of all the verbiage was a provision that said, “By agreeing to this license you agree that we have a claim against your immortal soul.” 2500 people apparently signed up for that service and signed away their soul. Fortunately, they amended their agreement on April 2nd to take that away. Yes, it’s… Yes. I guess one of… And sort of a slightly different and somewhat humorous and very celebrated example of this was Van Halen’s performance contract. The rock band Van Halen had a provision in their contract that said or sort of a rider to their standard production contract when they are going to have a concert. It said that the promoter shall provide certain things in their dressing room, and they included a provision that said they shall have a bowl of M&Ms in their dressing room with the brown M&Ms taken out.

05:36 PK: You’d think that’s just the eccentricity and vanity of rock stars. Well, actually it had a true purpose. They said, “We wanna make sure that the promoter actually has read our standard form contract, because if they didn’t see that provision, maybe they didn’t read closely the provision that we need in terms of our setup requirements, stress on floors, lighting, that kind of thing, because that had happened before, where they had actually had a stage collapse on them, so they wanted to use their standard form agreement to catch promoters out.

06:09 MS: Right. So if they see brown M&Ms in the bowl, they know someone’s not paying attention and it’s time to check everything out.

06:14 PK: That’s correct.

06:15 MS: ‘Cause there’s pyrotechnics involved to the Van Halen show.

06:17 PK: Absolutely. Absolutely.

06:18 MS: You wanna be really careful.

06:19 PK: So I think when that did happen, I think David Lee Roth, the singer from Van Halen wrote that when that would happen, then they would do an extra long sound check and double check everything and then they would build a promoter for that.

06:34 MS: Right. Right. So in the realm of the more serious contract, not to say that the aforementioned aren’t serious, but I own an iPhone and so I know I have clicked off on dozens of these over time, so I actually printed out an iPhone end-user license agreement. I don’t have the URL in front of me, but we’ll post it on the blog, when this podcast goes by, it is about, I would say 20 pages long, if that. It’s surprisingly readable. Like I read through it and I thought, you know, this is not… After studying the law in some of these certificate programs, one of the things I noticed about legal writing is that, generally fake legal writing seems more legal than real legal writing a lot of the time. [chuckle] When I read these things, and I read judgments, I’m like, “Oh, this is actually pretty accessible stuff,” and it wasn’t an easy read. It’s long and it’s pretty dull, but it’s a readable contract. You can go through it and understand pretty much what’s going on in here.

07:34 PK: Fair enough, fair enough. I think so. I think if anybody took their time, they would have a pretty good sense of what was in there. It’s pretty dense. There’s a lot behind all of the words, let’s just say, it’s not as long as we might think, although I’m sure it’s longer than anyone who simply wants to get on with playing with their iPhone really wants to go through. But still it’s not as long as you might think, but as I say, what’s behind all of those words? There’s been a fair bit of industry practice plus common law decisions and the like behind what’s written in there.

08:09 MS: Right. And as you go through it, there’s kind of… I’ve noticed there’s themes. It sort of breaks down, and everything kind of… There’s a lot of broad categories, and this won’t be exhaustive, but the first one that leapt out at me is, there’s a number of clauses in here that basically seem to say, there’s stuff that you can do with this phone but we don’t want you to do it and we’re not responsible if you do. So this is kind of like a copyright violation, falls in the category of things that you could do with this phone but you shouldn’t do them. But they don’t have any… Basically, they’re just sort of saying this isn’t our fault. And is that to keep third-parties from kind of… If you use the iPhone to steal music, then Sony can’t come after Apple and say, this is your fault, ’cause they said it’s not their fault in this contract that I had to read.

08:57 PK: That’s very well put. Yeah, that’s exactly right. I think the standard form agreements, it’s a relationship between the individual consumer or user and Apple, in this particular case, but Apple is trying to use this contract to minimize their legal exposure, not only to the consumer but to anybody else out there, including other service providers, other IP providers, intellectual property providers, and governments. So please don’t do that illegal activity ’cause we really don’t want to have to have any criminal exposure, let alone civil exposure. Please don’t use this to steal somebody else’s copyright because we don’t want that person suing us indirectly or facilitating that. So it’s a method of protection, absolutely.

09:50 MS: So this is like a contract between me and Apple, but there’s also they’re considering a lot of third parties when they do all the writing to craft this. Another broad category…

10:00 PK: Actually, before you move on, Matt, if you don’t mind…

10:02 MS: No, absolutely.

10:04 PK: Odds are, Apple has considered who they’re most likely to be sued by, and it’s probably not you, Matt. It’s probably to be Google or somebody of that level of substance, who probably have damages sufficient that it would merit a lawsuit. So, as much as they’re worried about you, or they may not be worried about you, to be honest with you, they are probably more worried about these third parties.

10:32 MS: Right. So they’re protecting themselves from the third parties through the mechanism of the contract.

10:38 PK: Yes. That’s correct.

10:38 MS: Because I can’t do things that will take those third parties off, or if I do, it’s clearly not Apple that did it.

10:43 PK: That’s right.

10:43 MS: It’s me as an individual acting like a jury.

10:45 PK: That’s right. For the record, that is not absolutely fail safe. Because Google is not a party to this contract. If you go ahead and do something that would violate their intellectual property, there is nothing to stop Google from suing Apple. Now Apple could say, “Hey, that wasn’t our fault. Look at this agreement, we said it was Matt’s problem.” And that may or may not be successful, but nothing could stop Google from still suing Apple because they’re not a party to the agreement.

11:15 MS: Okay, the next broad category is something that I’m calling, this might happen, but you can’t blame us if it does.

11:23 PK: That’s right, and this is now, we’re worried about Matt you suing Apple. So if for some reason, you use your phone in a specific way, whether it’s something that was authorized by Apple or not, maybe it’s a completely legitimate use for your phone and you somehow suffer some liability. Still can’t sue us. So, Apple could have done nothing wrong, you can’t sue them. Apple could have done something entirely wrong in the creation of the phone, the creation of the software or installation of software on that, and you still can’t sue them. You’re gonna say, how was that fair? Apple has done something that’s caused me injury, why can’t I sue them? We’re gonna say, well, if we don’t have that provision in all of our agreements, what’s to stop Matt from launching a lawsuit over any small thing? And since we sell millions of iPhones throughout the world, think of all those potential lawsuits. So we’re simply gonna say, “Look, in order to keep the costs of this iPhone down, we’re gonna say no one can sue us if anything bad happens. And if we didn’t have that, and we were subject to that civil exposure, the cost of an iPhone would actually rise.”

12:35 MS: But I mean, they still are to an extent, like I can only imagine if iPhones started exploding and taking people’s heads off, then that clause wouldn’t protect them.

12:45 PK: That’s correct. There are limits on how far some of these provisions can go, these disclaimer clauses for instance or waiver of liability clauses, more precise. How far can they go? Do they actually have any bearing? And the courts will give effect to them, but they will not give effect to something that would be unconscionable. So if it goes to the very heart of what an iPhone should do, and no one should actually suffer third-degree burns by putting a phone to their ear in their ordinary course of business, it’s unlikely that Apple will be able to escape liability.

13:22 MS: Okay, so something like, there’s some clauses in here about distracted driving. Does that fit more into the first case or the second case of, you can do this, but please don’t, or if you undergo harm while doing this, we can’t be blamed for it.

13:38 PK: Yeah, I think it goes a little of both to be perfectly honest with you, but they’re probably more worried about the first case than the second case. They don’t want… Because you’re driving along, texting or using your phone and not paying attention, and you hit some third party, Apple’s probably more worried about that third party coming back against them, yeah.

13:58 MS: Okay, and data overages is another one, where if this happens, this is on you, it’s not on us.

14:04 PK: That’s right, that’s right. And in that sort of situation, they’re saying that’s truly beyond our control, so we absolutely don’t wanna have that. What Apple is trying to do here is, you could say that there are legal justifications behind a lot of things. A lot of these things are business justifications, they are trying to get cost certainty. So they wanna know that when they sell you that iPhone, they know what their costs were in building that iPhone and they don’t want any contingencies going forward.

14:32 MS: Right.

14:33 PK: Yeah.

14:33 MS: And while law suits are definitely a contingency you can’t plan for, so they’re trying to hedge those bets as much as they can contractually.

14:40 PK: That’s right. Right, and which is no different actually than when you think about sort of the waivers that you see or the warnings that you see on any product. A product manufacturer is worried about product’s liability lawsuits. This is sort of the cell phone equivalent of that.

14:55 MS: Okay.

14:55 PK: Yeah.

14:56 MS: And the third broad category that I saw all over the place had a lot to do with data collection. So it’s basically just saying, we are gonna be gathering data from you for a variety of purposes like maps is one where they’re saying, we need your data to provide the service, so we’re gonna go ahead and take your data to provide this service. And there’s a lot, there’s a ton of sort of data use clauses scattered throughout here.

15:22 PK: Absolutely, absolutely. And those fall into a number of different laws. If we set the United States aside for the moment. And for the record, the Apple agreement is probably going to be unique by jurisdiction, they’re probably gonna revise it slightly, jurisdiction by jurisdiction. In Canada, we have private data collection laws, Personal Information Protection and Electronic Documents Act or PIPEDA, actually regulates when someone can collect data. So this is complying with the Canadian statute. That’s true in the European Union, which whose laws are even stronger. The United States doesn’t have such a statute, but they certainly have Tort Law that will apply when someone has some, for instance, could sue for invasion of privacy or something to the equivalent of that effect. And we have a variant of that in Canada as well. So there’s common law reasons for this, but there’s a lot of statutory regulation that Apple’s complying with.

16:21 MS: Right. And the other big piece of language I see in here, it’s mainly sort of licensing stuff. It’s, we use this but it’s a license of that, we use this and it’s a license of this other thing. And I guess they just kind of have to put that in for, well, legal reasons.

16:36 PK: Well, yeah, they are doing it for legal reasons. Again, their iPhone is based on other, to some degree is based on other people’s intellectual property they’ve entered into agreements, as well as there’s some statutory language that protects copyrights, trademarks, that sort of thing, of third parties and are saying, some third-party supplier provides something that is integral to an iPhone, part of the agreement that licenses that material to Apple is gonna say, and you must, we grant you this license and you must tell everybody that you have a license that that’s not proprietary or owned by Apple. And so they’re checking off a box in their contractual obligations really. It doesn’t really impact on you whatsoever and you probably don’t really care, but they are simply making sure that people realize that this is not all owned by Apple.

17:34 MS: So, there is a massive section of this that’s in all caps. Why suddenly the shift from [chuckle] regular case typing to there’s like about, well I would say three pages in total in here where suddenly just shift, is this to denote that this is the most important part of the contract?

17:52 PK: It’s very interesting that you point out that it’s three pages long, it’s supposed to point out the most unusual or most onerous terms [chuckle] in the standard form contract. But yeah, as you say, it’s about 30% of the agreement [chuckle] seems to be in caps. Some of it is not just in caps, but it’s in bold as well. I guess they really want you to notice that. And that’s literally what the law is. The old English law that’s been adopted in common law Canada is that in any standard form contract, the courts will accept that. But usually standard form contracts are one-sided, they are there to protect the service provider, the Apple, Rogers or Bell or somebody to that effect and not you, the consumer. Again, the point being that we’re trying to keep our costs down.

18:36 PK: The courts will enforce those, because you clicked, “I agree.” But there are some things that tick off the courts and say, “We’re not gonna enforce that, we’ve already mentioned the unconscionable clauses.” But the other point under the old Anglo-Canadian law is that you’ve gotta give notice of terms that would be unusual or unexpected by the consumer where the consumer to actually read them or they would be onerous. And, by onerous, we mean we’re flipping the onus. We’re flipping the protection from the, what would typically be borne by the service provider onto you, you’re accepting the risk yourself, so a waiver of any liability.

19:19 PK: A disclaimer saying, “Hey, we Apple, don’t promise that this iPhone will actually do what it says it does and you can’t sue us.” Those things where ordinarily that would be their obligation, those are the provisions that are typically put in capital letters or in bold. Because they’re supposed to be providing notice to you, “Hey, look at this, it’s in bold and caps and sort of, our texts speak now, we put it all in caps, they’re yelling at you.” And that’s the standard form contract equivalent of that. And if they don’t do that, the courts have said, “Well, we’re not gonna enforce that.”

19:54 MS: So, onerousness is kind of a comeback to these contracts, or is it?

20:00 PK: In a sense that they are… From a consumer’s perspective?

20:03 MS: From my consumer’s perspective, they’ve had to do this. Because if they didn’t do this, a court could theoretically say, “No, this contract isn’t relevant because you’ve buried some very important language.” You haven’t made it easy to read and you haven’t made it obvious. Is it possible of contracts that they’re just too big for someone to read?

20:22 PK: It’s interesting that our laws have gone down this road and then they seemed to have stopped. People have made the complaint that some service providers who aren’t as considerate as Apple is here. As you point out, this actually does read grammatically well. There are others who have contracts that are two or three times the length of this and legally, how could you ever actually find this language and is buried. And the courts still seem to have accepted them. I think the courts are probably waiting for governments to come along and say, “In the interest of consumer protection, you must have these particular terms. You must write them in a certain way.” And our federal government has gone down that road a little bit with cell phone contracts now.

21:14 MS: Right.

21:15 PK: Right.

21:15 MS: They have to be, to some extent, understandable to the lay person.

21:19 PK: Correct.

21:19 MS: It’s been kind of weirdly rewarding to read this. [chuckle] I’m glad I did it. I don’t think I’m ever gonna do this again. So, how much does this map, like if I have read Apple’s terms and conditions, can I sort of say that I get the gist of most of these, or are they unique enough that really, I should sit down with my Rogers internet provider contract and read it as well? Or is it just gonna be kind of the same stuff in a different order?

21:45 PK: They are broadly the same. We covered certain categories that you’re certainly gonna see in virtually every standard form contract, a waiver of liability. Even if you somehow manage to successfully sue us, our liability is capped at a certain amount of money. These third-party obligations… You’re gonna see all of those things. I think one of the key things here to take away is where there’s gonna be a variation is what they’re disclaiming from contract to contract and what a cell phone provider is gonna disclaim is gonna be different than what Apple is gonna be disclaiming for instance.

22:27 PK: So, I still think it’s worthwhile. Especially when you’re signing a contract and you’re clicking on terms, or looking at a standard form contract for something where somebody’s providing a service to you. Apple’s providing you with a phone, Bell or Rogers are providing you with a cell phone. Look and see what is in fact disclaimed and what is not. I think that’s quite valuable to you. But otherwise, yes. They’re broadly similar.

22:50 MS: Right. And broadly speaking, I should be able to go through and look for capital letters and bolding to see what’s the most onerous in terms of… What’s the highest burden on me as a consumer should be apparent.

23:00 PK: Interestingly, the burden on you as a consumer is extremely high. You’re deemed to have read these terms and understood these terms simply by clicking, “I agree.” So, the onus is in fact, on you. But you’re right, if you look through and read the bold print and the capital letters, those are going to be the most, shall we say, injurious provisions for you.

23:24 MS: Okay.

23:25 PK: Okay?

23:25 MS: Well, this has been really helpful. Thank you, Peter.

23:27 PK: It’s not often anyone is struck so fancifully by standard form contracts till I get a chance to talk about it. So, thank you, Matt.

23:37 MS: Thanks to Peter Kissick, the designer of our corporate law course. If you’re interested in contracts and business law, you should take a look at Law 204/704: Corporate Law at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen’s University situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen’s Law. You can find out more about our music at meganhamiltonmusic.wordpress.com. Original illustrations for each podcast are created by Valerie Desrochers. You can see them at takelaw.ca. And visit Valerie’s portfolio at vdesrochers.com. Thanks for listening.

Unpacking pipeline challenges: Fundamentals of Canadian Law Episode 11

Oil Pipeline

The Kinder Morgan / Government of Canada pipeline is being challenged by both provinces and Indigenous groups. What laws pertain to these challenges?

There’s a lot to unpack when it comes to the Kinder Morgan — soon, Government of Canada — pipeline.British Columbia has challenged it, as have several Indigenous groups. But what laws govern their ability to challenge this national project? We explore first the distinction between federal and provincial powers with Associate Dean Cherie Metcalf, teacher of the Constitutional Law module in our Introduction to Canadian Law course… and then dive into Indigenous and Aboriginal law, chiefly the “duty to consult,” with the creator and instructor of our Aboriginal Law course, Hugo Choquette.

Curious about the cases Hugo cites in his portion? Here are the links:

Haida Nation: http://canlii.ca/t/1j4tq

Chippewas of the Thames v Enbridge: http://canlii.ca/t/h51gx

Tsilhqot’in: http://canlii.ca/t/g7mt9

Tsleil-Waututh Nation Assessment of the Trans-Mountain Pipeline: https://cdn2.hubspot.net/hubfs/2551008/TWN%20Assessment%20Report%2011×17.pdf

 

TRANSCRIPT:

[music]

00:03 Speaker 1: Welcome to Fundamentals of Canadian Law. I’m Matt Shepherd, and this is our first ever two-parter. There’s been a lot of conversation about pipelines in Canada lately. This episode of our podcast actually bridges a recent change. Part 1 was recorded before the federal government announced it was going to purchase a transnational oil pipeline from Kinder Morgan, and part 2 was recorded after that announcement. The facts discussed in our first half aren’t really changed by this purchase. In fact, it streamlines the conversation, but we just wanted to make that clear off the bat. Federal priorities and trade law, provincial laws, Aboriginal and indigenous law, it’s all being discussed right now in the context of the Kinder Morgan pipeline, soon to be the Government of Canada pipeline. The pipeline is being championed by the federal government. It’s being challenged by a number of groups. So we wanted to unpack the legal premise and some of the details of these challenges.

01:03 S1: In our first part, we’ll be talking to Associate Dean Cherie Metcalf, the Instructor for the Constitutional Law module of Law 201/701: Introduction to Canadian Law. We’ll be discussing the division of powers between the federal government and the provinces and how BC can challenge the pipeline in some ways, but not in others. In our second half, we’ll be joined by Hugo Choquette, the Course Designer and Instructor for Law 202/702: Aboriginal Law. We’ll be talking about the pipeline from an indigenous and Aboriginal law perspective, the rights of various Aboriginal groups to mount challenges and what the legal structures around those challenges are. This podcast is brought to you by the Queen’s Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.

01:58 S1: So, Kinder Morgan is running a pipeline across Canada carrying bitumen, and BC essentially has some legislation on deck, which is going to prevent that theoretically?

02:11 Speaker 2: Yeah. BC is actually, they’re bringing this referenced case to their own Provincial Court of Appeal to see whether or not they can impose certain kinds of environmental restrictions. So what makes it tricky constitutionally is the possibility that these environmental controls could actually mean that you could stop transportation of bitumen through BC unless you meet the criteria that they’ve set environmentally. That’s the thing that makes it seem like it could hold up the pipeline project.

02:46 S1: Right. And that’s illustrative of the division of federal and provincial power in that the province doesn’t have the power to basically just forbid something outright, but it has the power to regulate things as long as those are regulations that are pertinent to power that the province itself holds. I don’t know if I’m saying that very clearly but you see what I’m getting at.

03:07 S2: Yeah, yeah, yeah. Yeah, powers are divided between the federal and provincial governments, and the ability to regulate something like the Kinder Morgan Pipeline as a… There’s a federal power to do that for things like federal… They’re called federal undertakings. So something like a federal transportation network that’s intended to allow shipment of goods to international markets. That is the kind of thing that we recognize the federal government’s got the power to regulate because it’s important for the national interest and there’s a long history there. So railways are another good example of this kind of federal undertaking.

03:49 S1: And even if the undertaking questions for a private enterprise, it’s still a federal undertaking that the federal government legislates.

03:57 S2: Right, it’s the… Even if there’s a company that’s involved, it’s the power to regulate that federally that really is an issue. Is it the federal government that actually who gets to set the constraints that that company is gonna have to follow? Or what role is there for provinces to set up additional constraints? So this is something that has come up in the past because provinces do have an ability to actually regulate what goes on within their borders, so they do have the ability to legitimately set up things like environmental protection statutes because we’re worried about, as people living in BC, what happens to the water and the air and the environmental conditions in BC.

04:46 S2: So where it gets tricky is where we try to figure out, well, what’s the impact on this federal kind of enterprise from the BC legislation? And it’s totally fair for BC to have legislation and it can even have an effect on federal undertakings, but what the courts have said in the past is, “Well, I can’t go so far as to sort of impair or fundamentally interfere with the federal government’s ability to actually regulate these things.” So there’s some kind of a boundary in there between what the provinces can do and how they can regulate things within the province and when they’re gonna go too far and essentially interfere with, or stop, or prevent these federal undertakings from being able to operate.

05:35 S1: So BC has the power to have its own, as you said it, it has the power to have its own environmental regulation so they can say, “Hey, well, we will only let people take these environmentally hazardous things through BC if they have the appropriate permits.” And that’s a measure of control they can exert over this pipeline. That’s how they can do it constitutionally but when people are deciding whether or not this is legitimate, whether or not it goes too far, do they take motive into account?

06:07 S2: So when in [06:08] ____… The people that will be trying to decide whether it goes too far or not, it’s essentially the courts where they’re gonna bring this and ask judges to review it in light of all the previous cases. So, what they’ll really be trying to do is they’ll be looking at the legislation and where motive sometimes can come in is through things like the legislative history and looking at the legislation itself. So they’ll be trying to figure out, “Well, is this something that in pith and substance really is a genuine regulatory program that fits within BC’s jurisdiction?” One possibility could be… Well, actually the real point here is to try and essentially stop interprovincial trade. If that was really the pith and substance of what the scheme was they were going to enact, that’s not a power that the province has. It could be related in that sense, but the court will look beyond headlines in the newspaper. So they’ll look at all kinds of components, they’ll look at the legislation itself and they’ll look at it as part of the larger scheme.

07:13 S1: Right. I guess because the question in my head when I hear about this, and this may not be a fair question is, is this being done out of a legitimate concern for the environment? Or is this, “Hey, we’ve got a thing here that’ll let us stop this pipeline so let’s use this thing, and the environment’s a bit of a fig leaf, that lets them do the one thing they can do.”

07:35 S2: Yeah. In this case, I think that BC, part of the reason they possibly wanna stop the pipeline is because they have a legitimate environmental concerns, right? [chuckle]

07:48 S1: Right.

07:51 S2: They’re related things. If you look at the proposed legislation that they referred to the court, it does really focus on things like the risk of a spill and possible harm to the environment and they talk about implementing the ‘polluters pays’ principle so they wanna have assurances that whoever’s gonna be in possession of this diluted bitumen is actually going to have the resources to deal with any spills and that they’ve got a plan and all these kinds of things.

08:20 S1: So it’s not on its face a fig leaf, it’s legitimate?

08:22 S2: Yeah. No, no, no. But I think that there are genuine concerns about it. And so part of the constitutional tug of war here is, “Well, at what point do those local concerns, do they ever allow a province to trump the interest in an interprovincial or a national priority?”

08:44 S1: Right.

08:45 S2: So the federal power allows the federal government to essentially declare something to be a federal undertaking or to regulate something in the interest of trade. Like I say, so there is sort of this historic power to, in narrow ways, it doesn’t allow the… Certainly, it restricts the federal government, but it does allow them to regulate these kinds of enterprises in a way that can mean provinces don’t get to say no.

09:15 S1: Right.

09:15 S2: And so that’s why this case is actually… Like I say, it’s a little bit of a difficult tug of war because I think British Columbia views itself as having legitimate reasons for concern when it comes to having the pipeline traverse its territory.

09:31 S1: But when the courts look at this, too, it’s not just a pipeline and it’s not just an environmental concern, it’s a precedent for all provinces and the federal government?

09:40 S2: That’s right. It is a constitutional precedent that looks at, “Well, what is the federal power to actually regulate in the national interest?” And given that we’ve recognized that in the past, historically, provincial laws are not able to be applicable constitutionally if the effect there would be to really impair the federal regulatory power.

10:09 S1: Right.

10:09 S2: So that suggests that British Columbia, even though they have some legitimate provincial interests, if they try to use them or try to regulate in a way that would actually allow them to stop the pipeline from being effective by essentially being able to say, “Well, you can’t ship unless you comply with our regulatory standards.” That could really be potentially problematic in terms of precedent and the ability of the federal government to actually regulate important things that are recognized as national needs and national priorities.

10:46 S1: So a court decision may not be entirely based on just this one instance, it’ll be based on what this instance means moving forward?

10:53 S2: Yeah, generally. Generally speaking, that’s usually how court cases [chuckle] are decided.

10:58 S1: Right.

10:58 S2: You hope that’s what it’s gonna look like?

11:00 S1: Yes.

11:00 S2: Yeah, yeah.

11:00 S1: That’s literally what precedent means.

[laughter]

11:02 S2: It’s literally what precedent means.

11:02 S1: And that’s the foundation of our system of justice.

11:03 S2: Exactly.

11:05 S1: Right.

11:05 S2: Yeah, exactly. Yeah, and then precedent is very important in constitutional cases as well.

11:10 S1: Right. And I guess the point I’m trying to make is, even if the decision doesn’t go BC’s way, it doesn’t necessarily mean there isn’t a commitment to environmental values on the courts.

11:17 S2: Oh, no.

11:18 S1: It’s about this much broader issue.

11:19 S2: Yeah. And it may be that there are certain things that they can do within their own legitimate regulatory power without reaching the stage of actually impairing the federal pipeline operations.

11:35 S1: Right. I feel like this tension must be fairly constant in Canada too, is the federal provincial issue that we’re unpacking a bit here ’cause it’s just come to such a sharp point.

11:47 S2: Yeah, that’s right. There’s the balance between provincial power and federal power has come up lots of times in the past and actually the recent Comeau case.

12:06 S1: Right.

12:06 S2: So this is the one about moving goods interprovincially that talked about whether or not you could bring beer across the provincial boundary.

12:12 S1: Yeah.

12:14 S2: In some ways that’s another case where this federal versus provincial autonomy is at issue.

12:20 S1: Right. Because federally you could transport goods from province to province.

12:23 S2: Federally.

12:24 S1: But province has the right to legislate its own.

12:25 S2: Well, the federal government is the government that’s actually got the power to regulate interprovincial trade.

12:31 S1: Right.

12:31 S2: So provinces can’t enact laws that directly aim at regulating the flow of goods across provinces. So that’s why BC, they can’t enact an environmental law that’s really about trying to prevent movement of goods across borders.

12:47 S1: Right.

12:48 S2: If it’s really about that and not about its own domestic environmental stuff, it can’t do that.

12:54 S1: But they can legitimately say we have environmental concerns and we’re gonna legislate this right now.

12:56 S2: Exactly. But they can legitimately, and there can even be sort of an incidental or secondary effect.

13:03 S1: Right.

13:03 S2: So that’s where you get into these. And that’s essentially what the court found in the Comeau case is that there was a permissible secondary effect of trying to regulate the control over the liquor supply within the province that had an effect on whether or not you could bring goods in, but it wasn’t directly about trying to control that trade as its main focus.

13:28 S1: I don’t know if this is an answerable question but will the Comeau decision have a direct bearing on any BC decision?

13:36 S2: The Comeau decision is really, it’s more directly about the interpretation of Section 121, which is about sort of a… It’s a common market clause. And the BC decision I think will more likely be about the federal power to regulate federal undertakings versus provincial power to regulate internally within their own division of powers. So I think it’s not directly applicable, but some of the themes around recognizing provincial autonomy and leaving enough space for provinces to have legitimate ability to regulate things that are of concern in the province, I think that sentiment will probably be relevant to the Kinder Morgan reference.

14:27 S1: Right. Well, I feel like I understand so much more now. Thank you, Cherie.

14:29 S2: Good. Great. Thanks, Matt.

[music]

00:00 Matt Shepherd: So Hugo, I thought maybe in the context of the pipeline, we could just talk about what are some of the aboriginal law issues just surrounding the whole situation, the whole thing.

00:10 Hugo Choquette: Right. And it’s interesting because these issues go to the heart of Aboriginal law, which as we’d discussed in a previous podcast, is that law of the Canadian state which applies to Aboriginal peoples. And the lawsuits had been brought by some of the First Nations in this particular instance argue that the First Nations were not properly consulted. So it’s important to understand where there’s duty to consult on behalf of the federal government and provincial governments comes from and why it’s such an important right for the First Nations, but also a duty on the Crown. And the other thing I wanna say, though, just from the outset is it’s also important to remember that there’s several First Nations who are supporting the project. There’s actually 43 First Nations that have actually signed deals previously with Kinder Morgan that are now going to have to decide what the impact of the federal government’s purchasing the pipeline is going to be.

01:05 HC: So it’s not the case that this is universally opposed by First Nations groups. I think it’s important to remember that even though there are several groups, seven in fact that are actually opposing it. So in terms of the duty to consult, the main thing is to understand how Aboriginal rights really function in our law. And I think to understand that, you have to ask a very strange question, which is… The question behind all of Aboriginal law is, “What rights do people have in the territories that they have inhabited for millenia?” And that seems like a very odd question, and that’s because it is. But the bottom line is that, that’s what Aboriginal law, which is part of Canadian law, tries to figure out is, “What rights do people have on their traditional territories that they’ve lived on for many millenia?” And what’s important to understand about that is that when the British Crown, in this case, claimed sovereignty over the land, so once we had some discovery and settlers, so-called discovery and settlement, the British Crown at one point claimed sovereignty over all of what is now Canada, at different time periods of course.

02:15 HC: What happens at that magical moment in Canadian law is that not only does the Crown gained sovereignty, but it also gains the underlying title to all of that land. And I think you may have actually explored this in another podcast that the Crown actually or technically owns all the land in Canada, and that’s the common way we do it in the common law system.

02:33 MS: Yeah, we talked about that with Dean Flanagan a few weeks ago, that the fact that I own a house doesn’t actually mean I own the property. I have rights to the property.

02:41 HC: That’s right. And the problem when it comes to indigenous peoples is that they actually were here first obviously, and they had their own laws, their own ways of organizing property rights before all this happened. And for many of them, they didn’t see a European or a British settler until many, many years after this supposed assertion of sovereignty. But nonetheless, that is the way in which Canadian law views it, is that the Crown has underlying title to all of the land in Canada. And so where does that leave the indigenous peoples who have lived on their traditional territories for so many years? Well, it leaves them in the position of having to prove that they have rights to those territories. And so whether it’s what we call Aboriginal Title which is a property right, very similar to the highest form of property ownership in the common law system, which is fee simple. It has some differences from fee simple but it’s very close to it. Or Aboriginal usage rights such as hunting, fishing, other kinds of rights. These will have to be proven in court.

03:40 HC: No indigenous people can assume that they have these rights, or at least they won’t be recognized in Canadian law until they’ve been proven in court, which is a very strange thing if you think about it that we require people who have lived a particular way and done these things for millenia, we’re now saying, “Well, we’ll recognize your right to do so, but only if you prove it in court.” And so what happens is, it takes a long time and a lot of resources to do that. One of the famous cases that proved Aboriginal Title was the Tsilhqot’in case, which the Supreme Court decision on that came through in 2014. And just to give you an example, in that particular case there were 339 days of trial which lasted over five years. So you can imagine the number of resources that are expended on proving these claims. So, where does this bring in the duty to consult? Well, the question then becomes, well, until these claims are proven, they are not really fully recognized legal claims as far as the governments are concerned.

04:40 HC: So does that mean the government can do anything it wants and just run roughshod over all of these claims? And that question came up specifically in a case called Haida Nation in 2004. And the judgment, which was written by Chief Justice McLachlin at the time, clearly said, “No, that can’t be the way it is, largely because of this thing we call the Honor of the Crown.” And so the Crown is deemed to be honourable, it’s deemed to not do things in a way that is dishonourable. And clearly it would not be honourable for the Crown to simply ignore these very strong claims in many cases that are made to these traditional territories and say, “Well, we know you’re making a claim here but we’re not gonna bother with that because you haven’t proven anything in court yet. So we’re just gonna do whatever we want anyway.” So what then is the situation? Well, then what we have is a duty to consult, which is placed on the Crown. And the Crown in this case has been clarified, it means both the provincial and federal governments depending on what the situation is.

05:39 HC: Most public lands in the province will be owned by the provincial Crown, so in that case, it would be, partly the provincial government would have a duty. But also we know that the federal government has a specific mandate through the Constitution Act 1867 to look after what was termed then “Indians and lands reserved for Indians,” which we know now includes all indigenous peoples in Canada, so all Aboriginal peoples. And so both levels of Crown might have a duty to consult, and the duty to consult… The question then becomes, “Well, what does that mean?” [chuckle]

06:11 MS: Right.

06:13 HC: And we’re not quite sure what it means, but it means different things in different contexts. The court was very clear in Haida Nation and in subsequent case law that there’s a spectrum. On one end of the spectrum you would have a situation where an indigenous group has a claim, but it’s not particularly strong, for whatever reason, maybe there’s conflicting claims, maybe another group has a claim to the same area, maybe this group hasn’t occupied that area for a long time, and that’s a known fact. For whatever reason, the claim isn’t very strong. And at that point then you would have a lower duty than you would, for example, if… So in the Haida case for example, the Haida have inhabited the islands that used to be known as the Queen Charlotte Islands, they’re now called Haida Gwaii, and they’ve lived there without any opposing or conflicting claim for millenia. It’s a very strong claim that they have to that area. And so, in that particular case, then it would require a much higher level of consultation and possibly accommodation of their interests.

07:15 HC: The other factor on the sliding scale is the government, the proposed action that would interfere with the rights. At one end of the spectrum, you’d have something that’s gonna have a very minor impact on the rights and that would require less consultation, but on the other end you might have something, for example, in the Haida Nation case, you had a permit to clear cut some areas of the forest there. So that would obviously have a great impact on the rights involved or the rights claimed at least. And so that would then result in a higher level of consultation needed. And so the key in a lot of the cases that have been coming through is whether, what level of consultation is required and how do we determine whether it’s been adequate or not? The other important element is that, and this is tricky again, but the duty is always on the Crown, so it’s always the Crown that has a duty to consult. Nobody else has a duty to consult, but while the ultimate responsibility is always with the Crown, the duty itself can actually be delegated for procedural purposes, which means that in other words, other parties can engage in negotiations that will fulfill the duty. It doesn’t mean that the government has to be at the table at all times.

08:23 MS: So the Crown could appoint an arbitrator?

08:25 HC: That’s right, it could. Even a third party could be part of the negotiation as it has been the case in the past, and as was the case here with Kinder Morgan being part of the negotiations. The Crown doesn’t have to be itself at the table, but ultimately if there’s inadequate consultation then it is the Crown’s duty so the Crown will have to answer for that.

08:45 MS: So that raises a couple of questions. The first one was, 72 hours ago, I would have been asking you, “So how does that apply to a private company like Kinder Morgan that’s establishing a pipeline?” Now the federal government’s taking that question off the table.

09:00 HC: That’s right.

09:00 MS: The first thing, they’re gonna buy the whole thing outright. But had they not done that would the federal government be just saying, “Okay, Kinder Morgan, we authorize you to carry out these consultations”?

09:13 HC: Yeah, in a way. I mean, it doesn’t even have to be formal, it can just be assumed that Kinder Morgan will be negotiating. The ultimate best outcome of course, is agreement. So, it’s where you obtain the consent of the group involved to the activity that you’re proposing. And in that case of course, there won’t be any review of whether the duty to consult was met. Where it becomes an issue is where you have that third party, for example, Kinder Morgan engaging in negotiations, and then there’s a question as to the adequacy of that consultation because, again, the duty remains with the Crown. So ultimately, it’s the Crown that has to answer for that and has to ultimately ensure that the consultation happens, and happens in an adequate manner.

09:54 HC: For example, in this case as well, one of the questions that came up in a case that was released late last year, which was known as Clyde River and a companion case involving the Enbridge pipeline was whether the process of the National Energy Board, so the hearings that the National Energy Board conducts before they can grant a permit for the pipeline, whether those were sufficient to involve adequate consultation of First Nations groups. And the courts have said, “Yes, provided there is a meaningful opportunity for the Aboriginal group involved to present their point of view and the process there is adequate, that will satisfy the duty to consult.” It can be a regulatory agency, such as the NEB which is involved in this case, which is actually carrying out the consultation, even though the duty remains on the Crown at all times.

10:44 MS: Right. And this duty to consult, obviously, it’s incumbent on the Crown, but that has to be done with each community individually.

10:53 HC: That’s right, yes.

10:54 MS: Off the top, you mentioned that there is a large number of indigenous communities that are on board, they’ve been consulted and they’ve reached in a point of agreement, but there’s still a smaller group, but still substantial of communities that have issues and these are all individual sets of consultations.

11:12 HC: That’s right. Now, some of them may have common issues, and so they may be dealt with together. Certainly the lawsuits have been joined by other First Nations, so they’ve grouped together. But it’s important, again, to clarify that it’s not just… So when we talk about First Nations and communities, it’s important to clarify that it’s not just the reserves. Reserve land is obviously encompassed within that, but it’s much broader than that because it involves traditional territories, so territories which may now be either Crown land or under private ownership that were traditional territories of these nations and which they have a claim to. And so, those are the territories that are involved, so it can actually be much wider in scope than just the immediate vicinity of the First Nations community itself. And that’s part of the complexity of this as well.

11:55 MS: So does the transition, if the government follows through with the purchase of the pipeline from Kinder Morgan, will that simplify the overall portrait here?

12:04 HC: Well, it could or it could have little effects. On one hand, it simplifies things in that it takes a player out of the issue, the third party, Kinder Morgan. So that now it becomes clear that this is really between the federal government or the federal Crown and also still keeping in mind that the provincial Crown has some responsibilities here, but it really becomes between the Crown and the First Nations groups. On the other hand, the real question now is whether the process that’s already been gone through with the National Energy Board and negotiation with Kinder Morgan, whether it’s adequate.

12:33 HC: And there’s a lawsuit currently pending in the Federal Court of Appeal that is reviewing that largely because of new information that came to light that, apparently according to some sources, there were officials in the federal government who at the same time as they were telling the First Nations, “Well, we haven’t made a decision yet, this is an ongoing negotiation,” were telling their officials who were working on this to find a way to approve it. So it seems, if those allegations are proven that the Crown wasn’t negotiating in good faith, which is always part of the… For consultation to be adequate, it would seem that it would have to be in good faith. And so if the court accepts that version of things, then the whole process would be deemed inadequate and we might be back to square one in terms of consultations.

13:22 MS: So is there an outcome here, where if the duty to consult is not met, the pipeline can stop? Period.

13:29 HC: Yeah, if the court finds that the duty to consult was not adequately engaged in, then absolutely, the court can stop the process because this is a constitutional right, so the duty to consult is part of the Section 35 rights of Aboriginal peoples of Canada. And so it would be essentially acting unconstitutionally on behalf of the Crown. So yes, it would absolutely stop things.

13:51 MS: So this is an absolutely vital part of the pipeline process?

13:53 HC: It is, yes. And so, obviously at this point, it’s unclear whether the court will agree or not. There have been other challenges that have been rejected. And reading the jurisprudence, looking at the Enbridge case for example, that came out, it seems like the courts are willing, in many cases, to give some leeway to regulatory agencies like the National Energy Board. And the courts tend to focus on the process more so than the results, and the process would involve things like, “Were the groups given a fair opportunity to present their views? Was there an attempt to respond to some of the concerns? Was there a hearing held that allowed them to air their views?” Those kinds of procedural things are more at the heart of the duty than the actual outcome. The courts tend to shy away from expressing their views on the particular outcome.

14:46 MS: Right.

14:47 HC: But in this case, there’s a huge, obviously, huge importance to this so I think the courts will take the time to really review what happened and whether there was good faith consultation here.

14:57 MS: And I imagine the issues on the indigenous end are fairly uniform in terms of what their concerns are.

15:04 HC: Yes, and in fact one of the very interesting things about this is that the one nation that’s leading the lawsuit currently in the Federal Court of Appeal, the Tsleil-Waututh Nation, they have actually carried out their own environmental assessment, an assessment of the project using the principles of their indigenous law, and they’ve actually put that out as part of their report. So, this is fascinating because it means that they are using their own law to assess the project and really making the argument that this is their land and they are situated right on Burrard Inlet, so they are right at the outlet point of the pipeline. And they’re arguing that this should be decided in accordance with their laws just as much as with Canadian law. And so that’s really an interesting assertion of sovereignty, if you will, over their territory, and to pursue that in that way is something we haven’t really seen a lot of before.

15:55 MS: Yeah. No, that is fascinating.

15:57 HC: Yeah.

15:58 MS: So obviously, it’s a developing situation. We may be discussing it again.

16:02 HC: We may be, yeah. [chuckle]

16:02 MS: In the short term or medium term.

16:04 HC: That’s right.

16:04 MS: But yeah, is there anything else you’d like to bring up in the context?

16:08 HC: No, I think, again, it’s a very interesting issue and it goes at the heart of a lot of what we look at in Aboriginal law, it’s a very fundamental issue, so I think it’s a fascinating issue for that reason.

16:20 MS: Great. Well, thanks so much, Hugo.

16:22 HC: Thank you, Matt.

[music]

16:25 Speaker 3: Thanks to Cherie Metcalf and Hugo Choquette. If you’re interested in constitutional law, Cherie is the instructor for our constitutional law module of Law 201/701, Introduction to Canadian Law, at takelaw.ca. We also go deep in an entire course on Public and Constitutional Law, Law 205/705. And if Aboriginal law is of interest to you, Hugo Choquette has designed and teaches an entire undergraduate course on the subject, Law 202/702, again at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen’s University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton. You can find out more about her music at meganhamiltonmusic.wordpress.com. If you liked this podcast don’t forget to rate and review us on iTunes. Thanks for listening.

[music]

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