OTTAWA — The federal government has promised to have shovels in the ground in the less than a year on the construction of a new pipeline to the West Coast, but lawyers and legal academics are warning the project could face legal challenges in court.

The pipeline, called Pacific Link, is the first project to be designated within the national interest under the federal government’s Bill C-5, also known at the Building Canada Act.

The legislation allows Cabinet to give projects in the national interest a fast-tracked regulatory process.

Robin Junger, counsel on Indigenous law and the environment at McMillan LP, said he is anticipating court challenges on two fronts: the Crown’s duty to consult under Section 35 of the Constitution Act and the federally legislated United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

“They passed a law that talks about consulting First Nations before they designate a project in the national interest, and then the statute talks about consulting First Nations and development of conditions,” said Junger.

“But that’s a different way of approving projects than previously; I’ll say it’s at best untested, and whether that’s going to complicate potential legal challenges is very much an open question,” he added.

Junger said the federal government could end up reviewing the major projects legislation if there is uncertainty there.

Prime Minister Mark Carney announced the national interest designation of Pacific Link earlier this month, promising the country will remain one of high standards, but not necessarily slow decisions.

The newly formed Major Projects Office undertook consultations with over 130 Indigenous communities between July 3 to Sept. 18, before the designation was announced. The MPO will begin its review of the project in early 2027, with public hearings held by the commission of the Canada Energy Regulator. The MPO is expected to finalize a conditions document by Sept. 1, 2027.

First Nations have been clear that they view Bill C-5 as a violation of the UNDRIP. In July, Assembly of First Nations National Chief Cindy Woodhouse-Nepinak said that fast-tracking projects will not come at the expense of First Nations’ rights.

“A one-year timeline, principally designed to attract investment, subordinates the honour of the Crown to commercial imperatives,” she said, during her opening remarks at the AFN’s annual meeting.

A note published by Osler, Hoskin & Harcourt LLP last December warned that the consultation process under Bill C-5 could be challenged in court.

“An accelerated BCA (Building Canada Act) process may result in legal challenges where Indigenous consultation is perceived to be truncated or otherwise inadequate to fulfill the federal government’s obligations,” the report said, adding that proponents can mitigate these risks by consulting early, proactively and responsively to Indigenous communities.

“However, if a project is designated as an (National Interest) Project and faces Indigenous opposition, there is a risk a court will find that Crown consultation prior to designation of the (National Interest) Project was inadequate,” the report added.

Dwight Newman, professor of law at the University of Saskatchewan, said there is ample case law about the duty to consult, which the courts have made clear does not give Indigenous communities final say on whether a project moves forward.

However, the federally legislated UNDRIP has added an extra layer of uncertainty, which was first passed by the federal government in 2021. This is because UNDRIP includes Free, Prior and Informed Consent (FPIC), which allows Indigenous communities to say no to a project development.

Justice Minister Sean Fraser told reporters last year that UNDRIP does not allow “a blanket veto power” to Indigenous communities, but later apologized for his comments after criticism, noting that speaking about UNDRIP in that way makes an assumption that Indigenous people and the federal government are working against each other.

Newman said the federally legislated UNDRIP does not go as far as the one in British Columbia, where it has become an provincial election issue, but is still having an impact on case law across the country.

Newman said a recent Federal Court of Appeal decision last Friday, in the case of Canadian Nuclear Laboratories and the Kebaowek First Nation in Quebec, has determined that UNDRIP does not change the duty to consult.

“The lower court in that case had said that the duty to consult turned into free, prior, and informed consent because Canada adopted the UN Declaration Act, and the Federal Court of Appeal has overturned that reasoning, and they’ve said the duty to consult doctrine hasn’t changed,” said Newman.

However, the case could go to the Supreme Court of Canada, which means the issues surrounding UNDRIP are not finalized.

Junger said it’s hard to say how UNDRIP will court challenges going forward.

“Is the federal government going to rescind the UNDRIP Act, or is it going 60 miles an hour into a brick wall?”

“Or am I wrong? Those are all possibilities, but they are the possibilities, and that’s separate from the duty to consult,” he added.

Newman, like Junger, noted that the court challenges could also come in the initial phase of consultations that took place prior to the national interest designation.

Heather Exner-Pirot, senior fellow at the Macdonald-Laurier Institute, said the federal government would have already run a risk assessment on the likelihood of court challenges facing the project and are preparing accordingly.

“I think everyone knew that there would be court challenges,” she said. “I think it was anticipated, and they prepared for it, especially on the designation process.”

Last week, Major Projects Office CEO Dawn Farrell had a candid moment with the BC Assembly of First Nations, noting that the frustrations over lack of consultations on the Pacific Link project made her feel “like Canada is never going to work” according to a report by the Canadian Press.

Farrell said members of her team had “very, very big scars” while working on the Trans Mountain Expansion Project.

“The projects that we have to deliver out of our office have to achieve your rights. We have to make sure that we go through your processes,” Farrell said.

“We can’t just make stuff up. The courts will just come and overturn the projects and we’ll be like Canada’s always been, 10, 15 years, dragging stuff around in the ditch and not getting it done and wasting time and money and resources, and your time and your people’s resources. We can’t keep doing that.”

Exner-Pirot said the federal government has learned its lesson from the court challenges against TMX, with the final case dismissed in 2020.

The decision from the Federal Court of Appeal concluded that “consultation means that Canada consider and address the rights claimed by Indigenous peoples in a meaningful way” but cannot be used to create a “de facto veto right.”

Exner-Pirot said the federal government has also learned from its court losses, including in the case of Enbridge’s Northern Gateway Project, which ultimately led to the federal government’s decision not to move forward.

“There’s a lot more knowns this time,” she said. “And regulators are conservative, and they are slow, but part of it is because they’re hyper aware that the durability of the approval once they do give it must be airtight, and it’s a disaster for a regulator’s decision to be overturned because the regulator did not meet the Crown’s obligations.”

However, Exner-Pirot admitted that UNDRIP certainly could complicate matters in the courts, noting that UNDRIP was not federal law during the TMX court decision in 2020.

Newman said ultimately no project development is without legal risk, and the federal government has decided this pipeline is worth facing those pitfalls.

“It would be difficult to say there are no legal risks because there are some legal risks there, but sometimes governments have to take legal risks, and they’re saying this is in the national interest, and they need to make some decisions in the national interest,” said Newman.

“And sometimes there are legal risks attached to doing that, but they’re making the decision that they’re going to do that,” he added.

National Post

• Carney lists West Coast pipeline as project of national interest, fast-tracks regulatory process
• AFN national chief decries timeline for Liberals’ proposed overhaul of rules for major projects

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Polls opened for Alberta’s historic referendum on Monday, with voters lining up to cast a ballot over whether the province should consider separating from Canada.

Voting day follows months of debate over the separation question, which has divided many in the province and prompted both sides to ramp up efforts to sway public opinion in recent weeks.

The referendum, which includes one question on proposed separation and another nine on various other constitutional matters, is expected to draw record numbers to the ballot box. Elections Alberta estimates record turnout as high as 85 per cent, compared with an average of just over 50 per cent in recent general elections. According to the agency, 1,356,873 voters, or 43.1 per cent of eligible voters, have already cast advanced ballots or special ballots before Monday. That compares with 809,988 advanced and special ballots cast in the 2023 election, or 27.5 per cent of eligible voters.

• God, guns and grievances: Alberta’s separatists make their case for independence
• Mark Carney makes case against Alberta separatism to his boomer base

Monday’s referendum vote is not explicitly a vote to leave Canada, but gives voters the option of either remaining in Canada or holding a second vote on whether to secede.

Polls opened at 9 a.m. MT and will remain open until 8 p.m. local time. However, some polling stations reportedly opened late on Monday and will remain open past 8 p.m. Elections Alberta will start counting advanced and special ballots starting at 5 p.m. MT. Early results will start rolling in after the final vote has been cast.

The separation question will be counted first and results are expected late Monday night. Check back here for the latest results after polls close. Results for the other nine questions will be announced within 48 hours.

The other nine questions ask Albertans whether Alberta should be given more control over immigration rates, work with other provinces to abolish the federal Senate, or give the province the right to opt out of certain federal programs, among others. Five of the 10 questions relate to immigration policy, including asking whether the province should halt some public services like health care to non-permanent residents.

Alberta Premier Danielle Smith has repeatedly said she prefers that the province remain in Canada, despite the fact that it was her government that changed the law to enable the referendum on separation to be held. The premier has called for an “independent Alberta within a united Canada” and has been working closely with Prime Minister Mark Carney to repair the province’s fractured relationship with Ottawa.

Together, the pair have announced a flurry of joint projects in an effort to shore up support for the federalist side, including Carney’s promise to back the province’s proposed West Coast oil pipeline and pump $8 billion in new military spending in the province.

Carney was in Alberta last week for a final campaign aimed at pushing Albertans to vote to remain, saying the country is stronger united, particularly in the face of what he calls a dangerous and divided world.

Meanwhile, Alberta’s pro-separatist advocates have also been calling on voters to get out the vote, with some arguing a vote for separation can give the province useful leverage in its negotiations with Ottawa.

While results of the referendum are unlikely to be known until late Monday night, polling has consistently shown that roughly three quarters of voters support remaining in Canada, while the other 25 per cent are sympathetic to the separatist cause.

Alberta referendum questions

Immigration questions

1. Do you support the Government of Alberta taking increased control over immigration for the purposes of decreasing immigration to more sustainable levels, prioritizing economic migration and giving Albertans first priority on new employment opportunities?

2. Do you support the Government of Alberta introducing a law mandating that only Canadian citizens, permanent residents and individuals with an Alberta-approved immigration status will be eligible for provincially-funded programs, such as health care, education and other social services?

3. Assuming that all Canadian citizens and permanent residents continue to qualify for social support programs as they do now, do you support the Government of Alberta introducing a law requiring all individuals with a non-permanent legal immigration status to reside in Alberta for at least 12 months before qualifying for any provincially-funded social support programs?

4. Assuming that all Canadian citizens and permanent residents continue to qualify for public health care and education as they do now, do you support the Government of Alberta charging a reasonable fee or premium to individuals with a non-permanent immigration status living in Alberta for their and their family’s use of the health care and education systems?

5. Do you support the Government of Alberta introducing a law requiring individuals to provide proof of citizenship, such as a passport, birth certificate or citizenship card, to vote in an Alberta provincial election?

Constitutional questions

6. Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to have provincial governments, and not the federal government, select the justices appointed to provincial King’s Bench and Appeal courts?

7. Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to abolish the unelected federal Senate?

8. Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to allow provinces to opt out of federal programs that intrude on provincial jurisdiction such as health care, education and social services, without a province losing any of the associated federal funding for use in its social programs?

9. Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to better protect provincial rights from federal interference by giving a province’s laws dealing with provincial or shared areas of constitutional jurisdiction priority over federal laws when the province’s laws and federal laws conflict?

Separation question

10. Should Alberta remain a province of Canada, or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?

Our website is the place for the latest breaking news, exclusive scoops, longreads and provocative commentary. Please bookmark nationalpost.com and sign up for our daily newsletter, Posted, here.

Four members of the Canadian Armed Forces were killed in a grass fire at an army base in Wainwright, Alberta over the weekend.

They were identified as Sgt. Morgan Wong, Pte. Shaun Farrell, Pte. Aidan Goulding, and Pte. Hayden Lykkemark. They died during a “fire-related training incident” at 4 p.m. MT (6 p.m. ET) on Oct. 17, according to CAF . Nearly 40 others were injured.

Here’s what we know about them.

Who were the victims killed in the Wainwright fire?

All four were based in Edmonton and serving in the 3rd Battalion, Princess Patricia’s Canadian Light Infantry (3 PPCLI) at the time.

Kane Lewis, a friend of Lykkemark, started a GoFundMe for him with permission from the Lykkemark family. It exceeded $15,000 on Monday.

“We went to high school together and played rugby. We both joined the army at the same time and were fortunate enough to be in the same platoon for basic training. That’s where he became more than just a friend; he became a brother,” Lewis wrote in the description of the fundraiser.

“He was always looking out for everyone and always kept himself in check. The staff and all the other soldiers liked him. After basic training, Hayden went on to infantry school, and that’s where we parted ways. However, we still kept in touch.”

The funds will be used to “ease some of the stress caused by this tragedy.”

Lewis’ father shared a Facebook post about Lykkemark and his son, saying they were best friends. The post showed a photo of both of them wearing military gear.

“They walked into the military recruiting office together, went through basic training together in Quebec, and began their journeys in the Canadian Armed Forces side by side,” he wrote.

“Watching my son go through the pain of losing his best friend has been incredibly difficult. These young men had so much ahead of them.”

Wong, 26, originally from the Loyal Edmonton Regiment, was described as an “incredible person” in a statement from his family, CityNews reported .

“He loved being active and spending time with his friends and family. He was extremely proud to serve with the Canadian Armed Forces,” the statement said. According to his family, he attended the University of Alberta and received a bachelor of commerce degree. He also had a real estate certificate and a civil-military leadership certificate.

The Loyal Edmonton Regiment Association said on Facebook it was “deeply saddened” by his loss.

“Our thoughts and prayers are also with the injured, their loved ones, and everyone affected by this tragedy.
We will remember them,” the post said.

Farrell was remembered by his mother in a Facebook post on Sunday. She shared a photo of him in uniform.

“We want to thank everyone for your love, support, and prayers during this incredibly difficult time. As our family navigates this profound loss, we kindly ask for privacy so that we may grieve together,” she wrote. “Love you my darling child.”

B.C. Premier David Eby addressed the incident in a post on X , extending condolences to the families of the victims. He named Goulding and Lykkemark specifically, as they were both from North Vancouver.

Goulding, 23, was remembered in a post by a family member on Facebook who said he had “just graduated in August.”

She said he “had your whole life ahead of you — way too young.”

How did a fire training exercises lead to four deaths?

Speaking on Sunday, Maj. Gen L.W. Rutland explained that soldiers in the 3 PPCLI were doing “high intensity combat training with live munitions.”

The purpose of the exercises was to prepare them to be part of a global response task force that could be ready to “move within hours” to anywhere in the world. Soldiers were also getting ready to serve in Latvia in April and May to “bolster” a brigade that was already there.

When the incident occurred, some soldiers were throwing hand grenades on a hand grenade range. At the same time, a group of ten soldiers were conducting a “section attack,” which is when they attack a “simulated enemy.”

A “grass fire ignited in the training area,” said Rutland.

“Uncommonly strong winds cause the fire to spread rapidly and shift direction towards the range administrative area,” he said.

The cause of the fire is currently under investigation.

The entire battalion is made up of roughly 350 soldiers. The battalion breaks down into different companies, and it was the Charlie Company — made up of 84 soldiers — that was affected by the fire.

Mayoral candidate’s son one of 39 injured

Cathy Keane, who is running for mayor in Oro-Medonte, Ont., wrote on Facebook that her son was “among the military personnel critically injured.”

“I will be travelling to Alberta and unable to continue door-knocking for the remainder of the mayoral campaign,” she wrote. “Right now, I ask for your understanding as our family navigates an incredibly difficult and uncertain time. We are grateful for the kindness and support of our friends and community.”

• Tears, prayers and quiet reflection in the House of Commons after CFB Wainwright tragedy
• Bryan Brulotte: Wainwright tragedy a reminder of the dangers our soldiers face

Our website is the place for the latest breaking news, exclusive scoops, longreads and provocative commentary. Please bookmark nationalpost.com and sign up for our daily newsletter, Posted, here.

While the vast majority of Canadian Armed Forces members’ deaths have occurred during wartime, the CAF has known no shortage of non-wartime tragedies at domestic and international bases over its storied and valiant history.

Before the fire that swept through the training area at CFB Wainwright in Alberta on Saturday, killing four soldiers and injuring 39 more — 19 critically — “10 Canadians have died in accidents while serving in the military” since 2020, according to The Canadian Virtual War Memorial .

One of those was Cpl. James Choi, a 29-year-old member of the Royal Westminster Regiment based in New Westminster, B.C., who was shot during a nighttime live-fire training exercise at CFB Wainwright in October 2020.

Choi, who had joined just four years prior and was training with the Princess Patricia’s Canadian Light Infantry (PPCLI) at the time, was treated on the scene before being flown to Edmonton, where he died in hospital, National Post reported at the time.

Cpl. Lars Callsen of the PPCLI’s 3rd Battalion was charged in May 2021 with one count of negligence in Choi’s death, but prosecutors with the Department of National Defence opted not to pursue the charges, CBC reported in 2023.

Defence officials didn’t explain why at the time and said Callsen returned to serve with his unit.

The busy base in Wainwright, about 200 kilometres southeast of Edmonton, is home to the CAF’s Canadian Manoeuvre Training Centre (CMTC) and the 3rd Canadian Division Training Centre (3 CDTC), and has experienced several fatal incidents in the last 20 or so years.

In April 2017, Royal Canadian Dragoons Sgt. Robbery (Bobby) J. Dynerowicz, a 31-year-old veteran of 12 years who’d served two tours in Afghanistan, died in a single-vehicle crash when the light armoured vehicle (LAV) he was commanding crashed on a heavily travelled gravel road on the base.

Three other soldiers aboard were injured, per the Edmonton Journal.

That particular vehicle, the LAV-III, had been involved in 14 rollover incidents resulting in at least eight deaths since it was introduced for use in 1999, the Ottawa Citizen reported in 2014.

The Citizen’s report was prompted by a rollover that May that caused the death of Lt.-Col. Dan Bobbitt, commanding officer of the Royal Canadian Horse Artillery’s 2nd Regiment, based in Garrison Petawawa, Ont.

The 43-year-old married father of three had served two tours in Bosnia and one in Afghanistan before his death.

The accident happened during Exercise Maple Resolve, the largest Canadian military exercise of the year at CFB Wainwright with about 5000 personnel, the Citizen reported .

In November 2014, 20-year-old Pte. Pete Allen, a rookie soldier with barely a year of service under his belt, died from injuries suffered when the three-metre-high lookout-type tower he was standing on collapsed.

As reported by National Post , Allen was recruited in October 2013, completed basic training in January and had been posted to Wainwright’s 3rd Canadian Division Training Centre to become a regular force infantry soldier.

Cpl. Christopher Deliva, a 27-year-old from Montreal, died in hospital after suffering serious injuries in May 2007 when the 10-tonne truck he was driving rolled over while rounding a curve at Wainwright, the Montreal Gazette reported.

The supply technician had joined the military in September 2000 and was set to deploy in Afghanistan in 2009.

Another Quebec-born service member, Pte. Patrick Dessureault, a 24-year-old from Alma, is believed to have “died instantly” in September 2005 when the LAV-III he and three other visiting soldiers from CFB Valcartier were in rolled over into Battle River during a night exercise.

His commanding officer told the Gazette that Dessureault was in the vehicle’s hatch and suffered a fatal neck injury.

He’d enlisted two years prior and was training for an overseas deployment in 2006.

Soldiers from other allied countries often visit CFB Wainwright for joint training exercises, one of whom was killed in an airfield accident in 2008.

That May, 25-year-old U.S. Army Specialist Josef Cerfus was killed while practicing “swing load” operations with a Chinook helicopter when the netted load fell on him. He was pronounced dead at the hospital in Wainwright.

Tens of thousands of soldiers from Canada and elsewhere have schooled in the art of war at CFB Wainwright since it was first established as a military training area in 1941 after the namesake town’s mayor asked Ottawa to take over adjacent vacant land that was once Buffalo National Park — one of several national parks created in Canada after the turn of the 20th century to help protect Prairie plains bison populations.

For roughly 17 months after WWII, it housed over 1,000 German prisoners of war, after which it reverted to a training ground for the Korean War, according to an archived government website . The 609-square-kilometre facility earned CFB designation in 1968 and has been the Canadian Army’s main training area in Western Canada ever since.

Forces stationed there include the PPCLI and the Canadian Mechanized Brigade Group.

The Royal Canadian Air Force also routinely uses the area and its airfields, as have international forces, including the British Army, which ended a twenty-year residency in 2005.

Its regular personnel are roughly 700 military members and 300 civilians.

• Four killed, dozens seriously injured in ‘violent, fast-moving fire’ at CFB Wainwright: Carney
• Bryan Brulotte: Wainwright tragedy a reminder of the dangers our soldiers face

Our website is the place for the latest breaking news, exclusive scoops, longreads and provocative commentary. Please bookmark nationalpost.com and sign up for our newsletters here.