Pipe­line Pol­i­tics

Policy - - In This Issue - Col­umn / Don New­man

Sup­port­ers of the twin­ning of the Trans Moun­tain pipe­line car­ry­ing oil sands bi­tu­men from Al­berta across Bri­tish Columbia to the Pa­cific Ocean al­ways knew the project would be a tough sell.

But no one re­al­ized just how tough a sell it would be, even after the po­lit­i­cal land­scape changed last sum­mer when the New Democrats— propped up by three Green Party mem­bers in the B.C. Leg­is­la­ture—re­placed the Lib­er­als as the pro­vin­cial gov­ern­ment.

And not many peo­ple re­al­ized that there would be a lot more at stake than get­ting the prod­uct of the Al­berta oil sands to tide­wa­ter and onto ships bound for the mar­kets of Asia.

But there is. Over the past year, what seemed like the eas­i­est pipe­line project to get ap­proved and built has be­come weighted down with most, if not all, of the is­sues that are cen­tral to pol­i­tics and pub­lic pol­icy in Canada, par­tic­u­larly in 2018: En­ergy ver­sus the en­vi­ron­ment, fed­eral ver­sus pro­vin­cial rights and rec­on­cil­i­a­tion with Indige­nous peoples.

The NDP gov­ern­ment of John Hor­gan ran against the Trans Moun­tain twin­ning in the B.C. Elec­tion in 2017. It fin­ished a close sec­ond, two seats be­hind the pro-pipe­line Lib­er­als. But three Green Party MLAs hold the bal­ance of power, and when they threw their sup­port to the NDP, it meant that any pos­si­bil­ity the NDP po­si­tion could be mod­er­ated was no longer in the cards.

In­stead of ne­go­ti­at­ing con­di­tions to make the pipe­line more palat­able, the Hor­gan gov­ern­ment has gone for the nu­clear op­tion. It has drafted leg­is­la­tion which gives it the author­ity to reg­u­late bi­tu­men in pipe­lines that cross pro­vin­cial ter­ri­tory. Sup­ported by some Indige­nous groups and en­vi­ron­men­tal­ist or­ga­ni­za­tions, it has sub­mit­ted the pro­posed leg­is­la­tion to the B.C. Court of Ap­peal.

The fact it has asked for a court rul­ing means the gov­ern­ment in B.C. knows it doesn’t have the ju­ris­dic­tion it is try­ing to en­force. Since the 1920s, courts—in­clud­ing the Supreme Court of Canada—have ruled that in­ter-pro­vin­cial pipe­lines are a fed­eral re­spon­si­bil­ity. That is the ar­gu­ment that the Trudeau gov­ern­ment and the gov­ern­ment of Al­berta will make when they op­pose the B.C.

ini­tia­tive. And, since the Trudeau gov­ern­ment has ap­proved the twin­ning of the pipe­line, the B.C. Gov­ern­ment will lose, even if the is­sue ends up at the Supreme Court of Canada.

But will it re­ally lose? Court cases take time, Kinder Mor­gan has im­posed a tight dead­line of May 31 for B.C. drop­ping its ob­struc­tion or it says it will aban­don the project. It is quite pos­si­ble the case could still be be­fore the courts when the dead­line is reached. Fed­eral and Al­berta gov­ern­ment ef­forts to un­der­write some or all of the costs to pre­vent Kinder Mor­gan from walk­ing away may pre­vent that. But even if they do, Premier Hor­gan can show his Green Party part­ners that he did all that he could to block Trans Moun­tain and re­main in of­fice with their sup­port.

And if the plan is sal­vaged and work be­gins. What then? En­vi­ron­men­tal­ists and those Indige­nous groups still op­posed to con­struc­tion say they will block the pipe­line right of way with thou­sands of pro­test­ers. Who will re­move them? Nor­mally a pro­vin­cial gov­ern­ment would ask Ot­tawa to send in the army to han­dle such a dis­tur­bance. But would a B.C. gov­ern­ment op­posed to the pipe­line do that—par­tic­u­larly when the pro­test­ers are its sup­port­ers?

In my view, there are com­pelling eco­nomic rea­sons for pro­ceed­ing with the twin­ning of the Trans Moun­tain pipe­line. But even more im­por­tant, al­low­ing de­mon­stra­tors to force­fully block a legally ap­proved pipe­line would make a mock­ery of the rule of law.

The law must be up­held in a democ­racy. Al­ready the Con­sti­tu­tion is be­ing strained by the fight be­tween Al­berta and Bri­tish Columbia, and the dis­pute be­tween Ot­tawa and B.C. Ex­ces­sive Indige­nous protest or block­ades could strain the rec­on­cil­i­a­tion process. The vi­a­bil­ity of ma­jor eco­nomic de­vel­op­ment projects could be put into ques­tion for years to come.

Clearly, there is a lot more at stake in the fu­ture of the Trans Moun­tain project, than just get­ting more Oil Sands pro­duc­tion to tide wa­ter on the west coast.

Don New­man is Se­nior Coun­sel at Nav­i­ga­tor Lim­ited and En­sight Canada, Chair of Canada 2020 and a life­time mem­ber of the Cana­dian Par­lia­men­tary Press Gallery. dnew­man@navltd.com

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