‘Road map’ could help feds restart pipeline
‘Road map’ eyed to restart pipeline before Alta. vote
The government appears to be in disbelief and denial as it tries to cope with the brutal reality imposed on it by the court decision to shut down the Trans Mountain pipeline expansion.
Amarjeet Sohi, the new natural resources minister, repeats the mantra that the government is keeping all its options open — which is true, because it can’t agree on a definite course of action.
Fortunately for the Liberals, Sen. Doug Black of Alberta outlined a “road map” of action in a letter to the prime minister this week, which included instructing the National Energy Board to launch a review of the impacts of increased tanker traffic on marine life, reinstituting consultations with First Nations and issuing temporary operating permits to allow work to continue on the pipeline.
A fourth recommendation was that the government adopt a bill he proposed, the Trans Mountain Project Act, that declares the pipeline is “for the general advantage of Canada.”
The recommendations have not been dismissed, according to people familiar with the matter.
It is understood that the Liberals plan to appoint a panel of eminent Canadians, which would be charged with the task of visiting the six First Nations the court said had not been consulted adequately and reporting back to cabinet. Former Liberal cabinet minister Anne McLellan is said to have been asked to lead the consultation.
The feeling is that the government does not have to accommodate all the concerns of affected First Nations but does have to be reasonable. McLellan, a law professor and experienced counsel, is considered to have the gravitas to satisfy the court’s concerns.
Black urged that both the NEB maritime review and First Nations consultation be completed this year. The government may be loath to stipulate timelines, conscious of the charge that it is rushing consultation. “The worst case scenario is to rush it back to failure,” said one Liberal.
But there is a gradual realization that the courtordered delay may not be the disaster it first appeared — and that the project could be back up and running before the Alberta election next May, a potential lifeline for Premier Rachel Notley.
The issuance of temporary operating permits may be more problematic. Black, who as a Queen’s Counsel knows a bit about the law, said in an interview that he believes in the supremacy of Parliament and that, if the government instructed the NEB to issue temporary permits, it could do so. “There’s no doubt in my mind that the act could be done, even if the ramifications of the act could be complicated,” he said.
Other legal opinion is skeptical. Licences are issued under the NEB Act, but only upon submission of NEB reports and in this case the report has been deemed inadequate by the courts. Construction is a relatively irreversible process and proceeding would suggest the consultation with First Nations was being carried in bad faith.
Black’s final recommendation was to appeal the decision to the Supreme Court, but he made it in the full knowledge that this is not a practical solution to kickstarting construction, given the extended timeline of a reference. But he said the top court offering a tighter definition of “duty to consult” would be useful for future cases.
The aftershocks from the Federal Court of Appeal’s Trans Mountain decision continue to ripple, but the wailing and gnashing of teeth has subsided as the realization set in that the court did not require the consultation to start from square one.
“The dialogue Canada must engage in can be specific and focused,” Justice Eleanor Dawson wrote in her judgment. “This may serve to make the corrected consultation process brief and efficient, while ensuring it is meaningful. The end result may be a short delay.”
The court did not take into account the work the government has done on the impact of shipping on the killer whale population in the Straits of Juan de Fuca under its $1.5 billion Ocean Protection Plan. But that work can now be submitted as part of a new review.
The upshot is that cabinet could conceivably issue a new order-in-council to restart construction within a matter of months.
Justin Trudeau had best hope so — as Black noted in his letter, we are in the midst of “an economic, political and jurisdictional crisis.”
Unkind opposition politicians are pointing out that the government signed a deal with Kinder Morgan that explicitly stated a court decision such as the one that came down last week would not be deemed to constitute a “material adverse effect” that could change the terms of the deal.
Senior Liberals defend the clause. “It’s precisely the reason why we bought the pipeline — we thought it was the kind of thing we could navigate. Where would TMX be if Kinder Morgan still owned it? It would be dead.”
Perhaps. But the Liberals also admit they were caught off-guard by the court’s decision. “Our lawyers thought we had a good case,” said one source.
The opposition parties are set to have a field day when the House of Commons returns later this month, wondering why the purchase wasn’t contingent on a positive court ruling given the shareholder vote was held on the day the decision came down.
The Trudeau Liberals might argue that this is the very definition of “de-risking” the project.
But to a great many Canadians the purchase of a pipeline confirms the Peter Principle applies to governments, as to people — that the Liberals have risen to their level of incompetence, and deserve to pay the electoral price.