‘Court Party’ wants no pipelines
Almost all informed commentary agrees that the Federal Appeal Court’s recent judicial veto of the Trans Mountain pipeline expansion is an economic, political and constitutional disaster. The consequences of the decision, which the judges did not consider, are dire.
Their decision puts at risk the $4.5 billion that Ottawa just paid to purchase the Trans Mountain pipeline. It sends yet another message to future investors that it has become impossible to build any major energy infrastructure in Canada. It means economic losses as we continue to sell our oil to the U.S. at a discount amounting to $24 million per day.
And it has rekindled the sense of Western alienation; the belief that no one in Ottawa — judges or politicians — either understands or cares about the Western energy industries and the people who work in them.
Of course, all of these negative consequences could be justified if the court’s decision was clearly required by the Constitution. That’s what’s meant by the legal phrase in Latin, “Fiat justitia ruat caelum”: It means “let justice be done even though the heavens fall.”
Practically, this maxim means judges are supposed to enforce the law regardless of its policy consequences. The problem is that with the Trans Mountain ruling, no one can seriously claim that the ruling was actually “required” by the Constitution.
The political and economic heavens might be falling, but not because justice was done. This entire area of law — which is really public policy in disguise — has been judge-made from the start.
This case, as with other court rulings on pipeline projects, pivoted in part on the Crown’s “duty to consult” those First Nations affected by the plans. But the words “duty to consult and to accommodate” do not appear in the Constitution. Rather, Section 35 simply “recognizes and affirms … existing Aboriginal and treaty rights.”
Then-prime minister Pierre Trudeau’s first-draft constitution in 1980 included the phrase “recognizes and affirms … aboriginal and treaty rights,” but without the word “existing.” The governments of B.C., Alberta and Manitoba strongly objected. They argued — correctly — that no one could say for certain what these rights were and that it would be dangerous and unacceptable to give a “blank cheque” to the courts. To gain their support, Trudeau agreed to drop Section 35 completely from the second draft.
But Aboriginal groups and NDP leaders protested the deletion, so a compromise was reached. Section 35 was put back in the final draft, but with “existing” added. The intended meaning of this revision was clear: that Section 35 protected the policy status quo, but did not create any new rights or give the courts a mandate to do so. In the words of Canada’s leading constitutional authority, Peter Hogg, the final wording “would ‘freeze’ native rights in their condition on April 17, 1982.” Without this concession, there would have been no Section 35.
The Western premiers had won, and Aboriginal groups understood this, which explains why the National Indian Brotherhood (precursor to the Assembly of First Nations) declared April 17, 1982, the day Queen Elizabeth came to Canada to proclaim the new Constitution Act, “a day of mourning.” The brotherhood’s leader, George Manuel, said it would be “treasonous” for any Aboriginal to participate in the signing ceremony.
All this changed eight years later in R vs. Sparrow, a case involving Aboriginal fishing rights on the Fraser River. To rule in favour of the fishing claims, the Supreme Court used its power to interpret — in this instance, misinterpret — the Constitution to virtually remove the well-understood, restrictive meaning of “existing” and expand Aboriginal rights.
Fourteen years later in the Haida Nation case, the Supreme Court extended the Sparrow precedent to create “the duty to consult and to accommodate.” Where did this duty come from? The court declared that it is required by “the honour of the Crown” — yet another judge-made concept. And it’s been down the rabbit hole ever since, culminating in the recent judicial veto of the permit for the Trans Mountain pipeline expansion.
Sixteen years ago, my colleague Rainer Knopff and I published The Charter Revolution and The Court Party. Our book explains how an elite group of academics, lawyers, judges, special interests and their media supporters are using the Charter and the courts to do end-runs around the policy decisions of elected Canadian governments.
The list is long and growing: abortion, same-sex marriage, physician-assisted suicide, Aboriginal rights, immigration and refugee determination, judicial salaries, Senate reform, prostitution, collective bargaining, and now export pipelines.
The Court Party thesis is that none of these judicial decisions were “required” by the Charter in any meaningful way.
Rather, they were being driven by the policy preferences of the judges and expansive judicial interpretations of the Charter, many directly contrary to the wording and the framers’ intention behind the wording. The Trans Mountain decision is a classic example of such judicial policy-making.
This explains why today’s socalled progressives lionize the Charter and activist courts. When they cannot win elections on these issues, they redefine them as “rights” and take them to the courts. When they win — which they consistently do — they then defend the judges’ decisions as upholding the “rule of law” and attack any criticism as a dangerous assault on judicial independence. (Witness the recent hysteria over the Ontario government’s threat to use its rightful notwithstanding power to set aside a judicial decision blocking provincial changes to Toronto’s city council.)
The Federal Court’s Trans Mountain ruling is just a symptom of the larger problem. The Court Party is well entrenched, well connected and politically ambitious. The party has decided it doesn’t want better, safer pipelines: it wants no pipelines.
As long as we keep totally surrendering our policy-making to activist judges, the party will get its way.
IT MEANS LOSSES AS WE CONTINUE TO SELL OUR OIL TO U.S.