Trans Mountain pipeline — the case for a mediated settlement

A highly experienced, independent mediator is desperately needed

Where is this thing going?

The recent four-hour emergency debate in Parliament offered no meaningful clues. And now an escalating interprovincial legal turf feud, with prospects of complex and lengthy constitutional challenges. And the matter is attracting international attention. In London, Prime Minister Justin Trudeau was met with a large, anti-tax Greenpeace demonstration. Arguably more important is Canada’s image as an unreliable recipient of investment.

On April 4, Kinder Morgan suspended all non-essential activities and related spending on the project until it could be satisfied, by May 31, that costly delays and uncertainty resulting from legal challenges had been eliminated.

Despite the prime minister’s mediation attempts with premiers John Horgan of B.C. and Rachel Notley of Alberta, and his subsequent news conference referring to a combination of supportive financial and legislative action, all that clearly exists is the government’s continuing, unqualified assertion that the TMX will be built. If the legislative battle continues, it will be the Supreme Court’s determination that will prevail, not B.C.’s Court of Appeal ruling on Horgan’s recent announcement of his government’s challenge of the federal approval of the project.

As to financing, this has been delegated to Finance Minister Bill Morneau. Options include a direct grant to Kinder Morgan, a loan, or perhaps some insurance protection. Partial or even full government acquisition of the project has recently been voiced by both Alberta and Ottawa, but how does that eliminate the current opposition?

A much more troublesome issue relates to proposed federal legislation.

It’s safe to assume that the federal case for legislative responsibility for and control over the project relies on the combined operation of sections 91 (29) and 92 (10)(a) of the Constitution Act, which removes from provincial jurisdiction interprovincial works and undertakings, and assigns those projects to the exclusive legislative authority of Parliament.

However, to become operative, the government must obtain a specific parliamentary declaration by way of legislation under section 92 (10)(c) that the project is for the “general advantage of Canada.” There is now a bill introduced in the Senate, S-245, which received second reading last week, which does this. Its single substantive provision simply states,

“The project and related works are declared to be works for the general advantage of Canada.”

The proponent of the bill, Sen. Douglas Black, a prominent Alberta lawyer, is urging rapid approval so that it may be introduced for passage in the House of Commons without further delay.

An obvious potential problem is the inclusion of “related works.” To the extent that this would involve eliminating or in any way overriding provincial, municipal or Indigenous rights in the exercise of their own constitutional authority — for example, local environmental requirements, roads, local bridges, maintenance of property rights, etc. — the bill would almost certainly give rise to further court challenges.

Section 53(1)(b) of the Supreme Court of Canada Act gives the federal government the right to refer to the Court “the constitutionality or interpretation of any federal or provincial legislation.” If a Senate-type bill was enacted by Parliament, such a reference could be made to confirm the propriety and scope of the government’s approval of the TMX project.

This was the route taken with the Anti-Inflation Act in 1975 dealing with wage and price controls, with which I had some involvement. The Court allowed Parliament to regulate inflation on the finding that it posed a considerable economic problem for Canada. In doing so, reliance was placed on the federal government’s s. 91 “peace, order and good government” (POGG) authority.

In this case, would the Supreme Court accord full primacy to the feds on all related aspects of the project, precluding continuing court interventions on peripheral matters by opponents — i.e., the B.C. government, portions of the B.C. Indigenous community, B.C. municipalities, the Green Party and perhaps others — acting within their own areas of legal/constitutional authority, primarily based on their property and civil rights? Who knows.

Does not this uncertainty, coupled with the unpredictable length of court proceedings, support the case for intensive mediation? In my view, such mediation should be conducted by a highly experienced and respected independent mediator prepared to work with the parties around the clock, starting immediately.

I know of several such qualified experts — but I’m not waiting for my phone to ring for advice!

Tim Armstrong is a lawyer and former deputy minister in the Davis, Peterson and Rae provincial governments.