The Ben Mulroney Show - The Cowichan garbage story takes another turn/Activist Judges eroding the Charter?

Episode Date: November 12, 2025

GUEST: Peter Copeland / co-authored a piece for the Macdonald Laurier Institute “Activist judges are eroding Canada’s democracy by abusing the Charter” If you enjoyed the podcast, tell a friend! For more of the Ben Mulroney Show, subscribe to the podcast! ⁠⁠⁠⁠⁠⁠⁠⁠https://link.chtbl.com/bms⁠⁠⁠⁠⁠⁠⁠⁠ Also, on youtube -- ⁠⁠⁠⁠⁠⁠⁠⁠https://www.youtube.com/@BenMulroneyShow⁠⁠⁠⁠⁠⁠⁠⁠ Follow Ben on Twitter/X at https://x.com/BenMulroney Insta: ⁠⁠⁠@benmulroneyshow⁠⁠⁠ Twitter: ⁠⁠⁠@benmulroneyshow⁠⁠⁠ TikTok: ⁠⁠⁠@benmulroneyshow⁠⁠⁠ Executive Producer:  Mike Drolet Reach out to Mike with story ideas or tips at [e-mail] Enjoy Learn more about your ad choices. Visit megaphone.fm/adchoices

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Tools that make it possible to go from tax question to client comms in minutes. Get better answers to tough questions. BlueJ. AI for tax experts. Welcome back. Welcome, rather, to the Ben Mulroney show. It's Wednesday, November 12th. Thank you for making it to the midpoint of the week with us. I promise the journey down the hill to Friday will be as much fun as the journey up. We want to talk about the Cowich and Tribe in British Columbia. And for those of you who have not been following that story, it is one that has potentially a national ramifications, certainly ramifications for the province. of British Columbia. The Cowhatan tribe is a First Nations tribe in British Columbia of about

5,500 members. And there was a court case, a ruling by the British Columbia Supreme Court that essentially allowed for a world where tribal land rights could potentially trump the property rights of property owners in the city of Richmond, British Columbia. And it is throwing growing so much chaos into that area where homeowners, because there could be competing land rights over their homes, some homeowners are having a tough time getting their mortgage renewed. There are talks that hundreds of millions of dollars of potential investment into infrastructure, into buildings, into businesses is just sitting on the sidelines. We're not going to invest until we get a little clarity as to what's going on here.

And it seems, in fact, like this trend is taking root in other parts of the country. We're hearing about challenges to the land rights of certain people in certain regions of Quebec, for example. This is expanding and it's not going away. There are some who've tried to poo-poo this idea. Oh, no. This is not going to affect your land. Well, in the here and now, there is enough uncertainty over that question that it is causing real financial harm to the province and putting a lot of individuals who have invested a lot of their money,

a lot of their time, a lot of their love, and a lot of their lives in building up equity in their homes. And now they're being told, you know what, you might not own that. You might have to hand that over to this band of 5,500 members of a First Nation known as Cowichin. So then we find out through global news over the weekend that there is an illegal dump on Cowichin land. that is just beyond the border of sort of the city and their land. And it's not good. It's not a good look.

We're finding out that there is a threat of toxic waste. That it has been, and it's not a small dump either. We're talking, what are the numbers here? 29,000, 290,000 square meters, cubic meters of construction and industrial waste on the reserve land near the Cowichin River and the fear is that the chemicals could be leaking and leaching in heavy metals and toxic chemicals into the water threatening the water itself as well as the salmon habitat and this is how big how big is that dump well we find out 29000 square cubic meters would

require the work of 29,000 dump trucks. So one after the other. Just imagine that. 29,000 dump trucks had to dump their load in that area to make the mess that we're looking at now. And apparently there's one guy who's been in charge of it. And he's been asked to stop. His name's James Anthony Peter. He's been ordered a couple of times to stop and he hasn't.

Now, I asked my producer, is this a, like, who is this guy? And we don't know much about him except that he is a member of the Cowchin Tribe. Yes? We know that for a fact. Okay. So we just want to follow the bouncing ball here. We just want to follow the story. We're not going to inject emotion into this.

We want to have a measured conversation about where things are and where things are going. So you would think that when this was highlighted, you would think that when news of this would break, that the Cowichin Tribe would start taking steps to fixing it, to mitigating it. Well, now we hear that the tribes are calling on Ottawa to step in and prosecute those responsible for the massive industrial waste mess on reserve land. And so if you get anywhere near the land, there's a big sign. There are big signs that say private property, couch, and tribe do not trespass. So now they're asking Ottawa to come in, but it seems like the letter that they wrote is suggesting that the people of rich. who sold there, who found a way to bypass

regulated dumping by going on to this land by way of this member of the First Nation are the ones responsible. That's what they're saying. They're calling on Ottawa to stepson and prosecute those responsible, the people who had the garbage that they wanted to get rid of.

I tend to look at the guy who made it possible. I'm, what about this James? What's his name? Seems like he's the guy who made it all possible. If I'm a, if I'm living in Richmond, BC and I got some garbage that I want to dump, I, unless somebody on the couch and land tells me I can dump it there, I can't dump it there. So you got to go to the guy who facilitated and created this thing, right? And yesterday, or two days ago, we asked the member of the, the journalist at Global News,

what's the, what's the, Paul Johnson. And he stressed, he's like, as far as we know, it's just this one guy. It's just this one guy. but when you hear that in order to make this mess, you need the work of 29,000 dump trucks or however many dump trucks 29,000 times. That's a lot of dumping. And that's a dumping that's occurring over a long period of time.

So I naturally thought, like, do any of the other members of the tribe know about this? And so my intrepid producer went on to Google Maps to see the path by which, these dump trucks could get to the dump, there's only one road in. There's only one road in. And that road goes directly in front. The path of these 29,000 dump trucks goes directly in front of the tribal offices, like right in front. You cannot miss them if you're in that office. And so then that begs you another question. If they knew, and I can't see a scenario where they

didn't know what did they do about it how did you let this happen and then there's part of me that says and i have no evidence for this except for just you know my basic cognitive skills that if if they allowed it to happen were they also in on it there's a financial incentive here don't forget if you were going to if you were going to um uh dump this stuff legally you have to pay certain fees and and because of the size of this dump and how heavy it probably is, we can estimate, we can pretty much estimate that the value of it, how much you would have to pay to dump it, $220 to dump a ton of garbage, right? So based on the amount and the dense averaging out the estimate, the density comes from about $38 million in

what's called tipping fees. I guess that's the tipping of the dump truck, right? To tip the dump truck 38 mil. It could be as low as 25 as high as $51 million. So, Like the likely scenario that I see is this James what's his name goes out there and he says to these these industrial people want to dump their garbage. Hey, I know it's going to cost you $51 million. I can do it for a fraction of that on my tribal land. Okay. And so how much money is involved here? And then if he and if the tribe saw that this was happening is anyone in the leadership of that tribe involved in? for lack of a better expression, taken their cut. Did this James guy end up keeping all the money? Or in the furtherance of his scheme, witnessed by people because 29 dump trucks, 29,000 dump trucks went by the offices of the tribe. Did people in that office say, hey, if you're going to do that, you need our permission.

And so you got to cut us into this. So you see where I'm going here? We are getting to the point where we have to ask who is responsible. Who is making money? Who is a responsible steward of the land? You've got the, you've got the Cowich and Tribe. It seems like they're saying, stay off our land. But now you've got to come on our land because your people made it worse,

even though we're the ones who allowed it. There are probably some people who made a lot of money here. Oh, and by the way, meanwhile, according to the BC Supreme Court, we're coming for your land. My point is we're getting to a point where somebody in a position of power is going to say, enough is enough. It's time for everybody to show us their country. cards, open our books. The due diligence phase of our relationship in terms of reconciliation

has come upon us and we need to know what you knew. Where is the money? How much do you have? Where is it going? Because anything less than that is unacceptable and will be unacceptable to not only the people of British Columbia and Richmond, but to everyone around this country who wants real reconciliation. Real reconciliation doesn't happen unless you open the books. I'm telling you, it's going to happen. Our activist judges eroding Canadian democracy. That's a big question. It's a big issue. We're going to dive into it next. Let's face it, finding your next favorite podcast can be tough. But that's about to change. Curious cast discovery is the destination for award-winning podcasts from true crime and history, like crime beat.

Documentaries like Stop, Rewind, The Lost Boy, music with Uncharted, and even the paranormal, like Dead Man's Curse. all 100% ad-free for less than the price of a coffee. Curious cast discovery. Available now on Apple Podcasts for just $4 a month. Welcome back to the Ben Mulrooney show. You know, we're trying to build a country here. I think all of us, we all have different opinions, but by and large, all of us are swimming in more or less in the same direction

because our goal is the same. Every day we want this country to be better than it was the day before. And we rely on a lot of tools to get that done. And it just, it feels like there are certain types of people who are either advertently or inadvertently working against that goal. We just talked about the BC Supreme Court ruling on the Cowichin Tribe, which could have myriad negative impacts on property owners across this country. We're all as a nation still reeling from the shock that the Supreme Court of Canada thought that a one year mandatory minimum for possessors of child pornography is to a bridge too far in a violation of, charter rights for the pedophiles. And people in Ontario will remember that Doug Ford, the premier, ran an election campaign

and won a majority government on the pledge to get rid of bike lanes on arterial roads in the city of Toronto, only to be told by the courts that that was a violation of the charter rights of cyclists. And so a lot of us are saying, what is going on? I don't remember a time where judges. were behaving in a way that ran counter to the supremacy of the legislatures.

And so to discuss this is somebody who has thought far longer about this than I and knows far more about it than any of us. Peter Copeland co-authored a piece for the McDonnell-Lorea Institute called Activist Judges are eroding Canada's democracy by abusing the charter.

We're pleased to have Mr. Copeland with us. Peter, thank you for being here. Thanks so much, Ben, for having me on. Oh, so I wonder what you think of sort of how I set up this conversation? I think it was well put, starting with the idea that we rely on different entities, in particular with different jurisdictions and areas of responsibility.

And I mean, the way our political systems have evolved here in the West and advanced democracies, and we have a division of powers. There's the executive branch, the legislative branch, and the judicial branches, and they have jurisdiction over certain matters. the idea, you know, the legislature is democratically elected and they are the ones who create laws and the courts by and large are there to interpret them and they owe a certain amount of deference to the intent of the legislatures when they do that. And I think we've seen a trend in Canada, in other Western democracies as well where increasingly, you know, courts have usurped

some of that policy-making function, one could say, and through their rulings have gone beyond just reviewing, you know, kind of procedural matters of whether the law was crafted properly, things of fairness and things of this nature, to overturning and getting involved in weighing the policy merits of legislative. And I think that's problematic because we have the separation of powers for a very good reason. And when everyone is doing their part, so to speak, then I think we can have confidence in our democracy, but not when they're in each other's lanes. And that's where we want to go next, right?

We have to have confidence in our institutions that they are put together and they are working in furtherance of these goals of building a better country and making sure that the rules are the rules. and they are respected and they are fair and they're applied evenly and fairly. But, you know, I keep reading these stories of judges who are giving, who are letting certain types of people off with lesser sentences because of issues like intergenerational trauma or they may be trying to come into the country and this could affect their petition for citizenship. I mean, these are issues like these and the ones of we've listed prior, you contend are eroding confidence and public trust in our courts?

Yeah, I would say so. And I'll just back up a little bit to explain maybe how this came to be. So as you mentioned, and as I elaborated upon, you know, we have a tradition, a Westminster parliamentary system in which significant deference is given to Parliament in how to interpret and enforce the law. We did get a charter of rights in 1982, which introduced rights, which are basically a form of Trump that government cannot infringe via legislation, which are to be protected. And so courts gain the power of judicial review over statutes for compliance with those rights. So we have somewhat of a mixed constitution now, like the UK and Australia have stronger parliaments. the UK has parliamentary supremacy where courts can't in fact strike down laws they only require them to be amended and they get sent back to parliament for for amendment the United States

has a very strong kind of libertarian oriented rights framework where courts have the greatest power to strike down laws on the base of the constitution and the bill of rights so ours is kind of mixed with the addition of the charter you know we have we have more uh uh authority vested in the courts to to assess legislation against their compliance with the charter, but it's very much still in the UK tradition. And, Peter, I want to, I want to talk about, if I can just take you off of that for just a moment. You know, it feels, though, that I don't remember a time in my life where I have read as many

scenarios in the news where there is a, there's a proposed law, or there is a, a, a, an established law that comes under, under attack for, for charter reasons. It feels like the charter is being used and possibly, depending on your perspective, overused to social engineer some version of this country that nobody voted for or certainly wasn't on a ballot any time we've gone to the, we've gone to the ballot box. In the last election, nobody voted on mandatory minimums being dropped for possessors of child porn. And so this happened without any constitutional changes. Can we write this ship without the need for any constitutional changes?

Yeah, it's a very good question. Ultimately, law changes because of the judicial philosophy and accumulated jurisprudence. that accumulates, you know, under the judges who make decisions. And, you know, we have this conception of a living tree constitutionalism, which is quite old. It was, you know, started with a 1930s precedent, in fact. But it has evolved or devolved, perhaps over time to, you know, understandably law has to have to evolve. And the text can't, you know, specify all the different applications. and ways in which it'll, it'll apply, but it should be remained confined to the, you know,

original intent, original meaning and structure. But, but it is arguably really gone off and grown some, some mutant branches. I would say, Peter, I only have about a minute left with you, and I don't want to end this conversation without talking about sort of the solution that the McDonald-Loria Institute is trying to bring to bear on this, which is the landmark cases counsel. Tell us about that in just about a minute. Yeah, so Landmark Cases Council, one of two initiatives we have tackling these issues. So Landmark Cases Council, a group of eminence scholars going to assess and evaluate the impact

of major Supreme Court decisions, the Judicial Foundation's project, complementary, going to look at the proper role and scope of courts and parliament. We're going to look at cases like RV Neur, which struck down mandatory minimums on the basis of very creative interpretations of Section 12 of the Charter, cruel and unusual punishment. We're going to look at the Oaks test, which basically gave courts the power to weigh the trade-offs between individual rights and collective goals.

And we're going to look at things like you see a motor vehicle decision which really changed the way that Section 7 that protects life, liberty, and security of the person is interpreted. It created a test for fundamental justice that moved beyond what everyone thought, just kind of applied to procedural questions to very substantive moral questions. And we had assisted suicide, abortion. Many things came out of that, which I think are very much, as you say, departing from the proper role of the courts as primary interpreter or not a legislator.

Peter, I got to leave it there. But please come back any time to talk about this because this is an issue that affects us all. I really appreciate your time. Thanks so much, friend.