PM takes right tack on Trans Mountain
Patience will see Trudeau through pipeline mess
It was not inevitable that we should arrive at such a pass over the Trans Mountain pipeline expansion: province divided against province, First Nation against First Nation, with the economic union and the rule of law as potential collateral damage. A debacle this big does not come about without years of hard work on all sides.
We should be clear on one thing: this is not a debate about a pipeline, or not any longer. It is about who decides.
Reasonable people will differ on the merits of Trans Mountain. But whatever anyone’s opinion, there is a lawful process for deciding these things, and lawful authority to decide them. In the present case, those lawful authorities are the National Energy Board, the federal cabinet, and the courts.
Whatever anyone’s concerns — economic, environmental, Indigenous or other — that is the process by which those concerns are adjudicated. And that is the process that approved the pipeline: the NEB, the cabinet and the courts, all ruling in its favour (though not every legal appeal has been exhausted: a case is still before the Federal Court of Appeal on behalf of seven First Nations arguing they were not adequately consulted). Why, then, do so many feel entitled, not merely to disagree, or to protest, as is their democratic right, but to substitute their own authority for that prescribed by law: to defy the courts, to threaten disorder, and to deny federal jurisdiction?
Much of the blame should be attached to the custodians of lawful authority, the governments of Canada and British Columbia. It was Justin Trudeau who, campaigning for office, gave his imprimatur to the extralegal, anti-democratic doctrine of “social licence,” telling pipeline opponents that “governments might grant permits, but only communities can grant permission.”
It was Trudeau, too, who lent support to the notion that Indigenous communities have, not merely a constitutional right to be consulted on projects affecting lands to which they have title, as the courts have found they have, but an absolute veto. And it was Trudeau who legitimized those who, because they did not like the NEB’s decision, had dismissed it as biased or negligent, with his promise of a special panel to review the project.
Likewise, it was John Horgan who, campaigning for office, famously promised to “use every tool in the toolbox” to stop the pipeline from being built. We know now that his government has known since at least the time it took office that it had no constitutional authority to do so. But if Horgan had hoped to walk back the promise, in the grand tradition of Canadian politics, after he was elected, he finds his way blocked by his partners in power, the Green Party.
So he has instead opted to stall for time, delaying permits, threatening legislation, and — someday, maybe — referring the whole business to the courts, hoping the project’s sponsor, Kinder Morgan, will give up in frustration. As, at length, it has declared it will do if Horgan’s government is not brought to heel, with spectacular effect: it has spurred the Trudeau government to state, in terms that allow no retreat, that “the pipeline will be built.”
But reasserting lawful authority, after so many years of disuse, will not be as easy as all that. It is not only the Trudeau or Horgan governments, after all, that have played this game: before Horgan, there was Christy Clark and her constitutionally odious “five conditions” for “approving” the Northern Gateway pipeline, and before Trudeau there were decades of federal governments that allowed the provinces to run the jurisdictional table against them, in the name of “co-operative federalism.”
Trans Mountain marks the final terminus of that process: as it is not possible for the feds to cave, so they are forced to act, in spite of themselves. That holds great peril — not for nothing did the government of Quebec, sensing a precedent, warn the feds not to intervene — but also great promise. But it will require great dexterity: a mixture of firmness and delicacy. Ottawa cannot simply snap its fingers and force the pipeline through — not at acceptable political cost, at any rate. But it can prevail, if it is patient and wise.
In this regard, the mix of measures emerging as federal strategy, belated as they are, show much promise.
The first: legislation explicitly asserting and defining federal authority over the pipeline, in some detail. That doesn’t abolish B.C.’s recourse to the courts — nothing can — but leaves less room for it to exploit any ambiguities about federal intentions.
The second: some form of financial backstop to Kinder Morgan, to assure it that its investment in a lawfully approved project will not be devalued, in whole or in part, by B.C.’s dilatory tactics. I have seen this denounced as a subsidy or bailout. The details will matter (a loan or equity stake would be inferior to a simple promissory note) but in principle it seems rather in the nature of compensation for expropriation — though it would be appropriate for the feds to recoup any payout from B.C.
And the third: some sort of face-saving sop to the B.C. government — more spending on protective measures in the event of a spill, for example. It may seem galling to reward it for its intransigence, but it is also probably necessary to smooth the path of eventual acquiescence, and gives it something to wave at the Greens.
Oh, yes. There is a fourth, unstated, part: legislation, now before the Alberta legislature, empowering the province to throttle supplies of conventional oil to B.C. The feds, to be sure, would have no part in such a flagrantly unconstitutional exercise, nor should they. But every good cop needs a bad cop.