National Post (National Edition)
Pipeline dreams run smack into our rule of law
As an Albertan trying to think through the Federal Court of Appeal’s cancellation of the permits for the province’s lastditch pipeline to tidewater, I find myself somewhat in the disconsolate position of the Lost Generation at the end of the Great War. There has been so much energy consumed in political pipeline struggle between the federal, Alberta, and B.C. governments, with opposition parties and business interests pouring in gunfire all around. And what was it all for? The Trans Mountain expansion ended up getting hung up — perhaps temporarily — by a half-dozen small First Nations, or parts of them, and by three judges.
This is a sentence that many politicians and columnists in Alberta will be reciting scornfully. Without doubt, the property interests of a small number of people are being allowed to thwart or supersede the general prosperity of an entire country. That’s the rule of law for you! It’s not supposed to be a matter of numbers, or of votes!
The rule of law is a principle to which everybody pays lip service right up until it is inconvenient for them personally. But if it has an essence, it is that a small group — a group as small in size as one person — may assert established rights against a great majority, and expect to have them prevail.
There is, to be sure, a debate to be had over whether this action by the FCA is an instance of the genuine rule of objective law. The National Energy Board’s approval of the pipeline ran afoul of the “duty to consult and accommodate” Aboriginal peoples when their rights may conflict with a public infrastructure project. This duty is said to emerge from the Constitution of 1982, which “recognizes” and “affirms” pre-existing Aboriginal rights, but of course the phrase is not in the Constitution explicitly. The “duty to consult” is judge-designed interpretive language, established by the Supreme Court aeons ago, in 2004.
After further evolution, we find in the text of the Trans Mountain decision that the NEB has run afoul of a particular meaning of the word “consult.” The Board sent officials to listen to the concerns that First Nations bands on the coast had about the pipeline, to understand those concerns, to make a complete record of them, and to provide that information to the decision-makers in Ottawa. All this was done with what the Court acknowledges to be good faith and fair procedur- al rigour: it frankly gives the NEB a grade of A for all that stuff.
The surprising problem with it is that it is not “consulting.” The Federal Court is now interpreting an earlier court’s interpretation of explicit constitutional language: “consultation” involves “responsive, considered, and meaningful dialogue” between parties, and “is not simply a process of exchanging information.” The decision uses the verb “grapple” in this context nine times: regulatory authorities are positively expected not only to entertain objections to a pipeline, but to “grapple” with those objections. Future regulators will undoubtedly have to ask themselves specifically whether they have “grappled,” and done so with sufficient Hulk Hogan-like force.
Given the baroque intricacy of the Trans Mountain decision, which interrogates the consultation process on what seems to be hundreds of fine points, the judges of the FCA seem to be in some danger of becoming regulators unto themselves — of supplanting the functions delegated to the NEB by Parliament.
You didn’t elect the Federal Court, but, then, you didn’t elect the National Energy Board either. Still less did you elect the NEB functionaries who turned out to have the wrong idea of their task, according to bleeding-edge judicial constructions of the honour of the Crown. If the law as made by judges is a fast-expanding cloud of gas, well, it is still the job of regulators to know and conform toit.
I am afraid there is a distasteful element of China envy in the Albertan reaction to the FCA ruling. This country is “closed for business,” we complain, because it takes us a long time to build enormous continent-spanning pipelines and we have to be careful about the people those pipelines will affect locally.
The case for this particular pipeline is strong, but as a general matter, the “closed for business” argument is crummy. Keep in mind that the Trans Mountain expansion is not being delayed by the FCA purely in the interests of wildlife or plants or mommy Earth: it is being delayed because of constitutional obligations, however contrived, to humans.
Do we think there are no businesses who will prefer to trade and invest in a country that upholds property rights very strongly, contrary to the political interests of several governments? Do we imagine that capital is inherently destined to flee the rule of law, and drain ceaselessly into authoritarian countries because they’re so terrific at getting things done? Perhaps we Albertans had better start preparing the mountain parks for an influx of rich North Korean tourists.
THAT’S THE RULE OF LAW FOR YOU!
— COLBY COSH