STOPPING ALL PIPELINE WORK UNNECESSARY
Like failing the course with 95 per cent on the exam — and getting kicked out of school
Why on earth is the Trans Mountain pipeline construction halted by a court order?
It didn’t have to be.
So far, nobody has appealed the Federal Court of Appeal’s disastrous Aug. 30 ruling.
The only concrete action is Ottawa’s move Friday to give the National Energy Board 22 weeks to deal with marine traffic issues raised by the court.
Premier Rachel Notley said she generally agrees with the strategy, but demands results.
Meanwhile, the quashing of cabinet approval leaves all work at a standstill.
That part of the ruling has always been draconian and unfair. The court could have ruled the approval invalid, but suspended the cancellation while Ottawa fulfilled the court’s conditions to remedy the problems.
“Could the court legally have done that?” says Nigel Bankes, chair of natural resources law at the University of Calgary.
“I think the answer is yes.” Bankes adds that “it would be a truly exceptional case in which the court would suspend the normal consequence of a judgment of exceeding statutory authority.”
But there are precedents. And this is surely an exceptional case — a federal project under construction, bought by the government at a cost of $4.5 billion, declared to be of national interest, suddenly stopped in its tracks at a cost of many more millions, with massive collateral damage to investment and the general economy.
And that happened even though the court sees eventual construction as likely. At no point does it say the project is so flawed it can’t continue after errors are corrected.
The Indigenous condition could be met in a fashion “brief and efficient,” ensuring “a short delay.”
On the marine issue, “the (National Energy) Board ought to reconsider on a principled basis whether Project-related shipping ” is incidental to environmental concerns.
In the rest of the vast ruling, dozens of objections to the project were dismissed as unfounded, including pleas from the cities of Burnaby and Vancouver.
But the result — a dead halt to all work — is like failing the course with 95 per cent on the exam. And getting kicked out of school, too.
Bankes points to an iconic 1985 case — Manitoba Language Rights — in which the Supreme Court found that all provincial laws not published in both English and French were invalid and had to be translated.
This included nearly every law passed for 70 years. So the court deemed the laws “temporarily valid for the minimum period necessary for their translation, re-enactment, printing and publication.”
This was a tough job. Seven years later, the court issued a three-month extension, with further delays possible through negotiations with affected parties.
If the court hadn’t taken this reasonable view, Manitoba would have been lawless — literally — for more than a decade.
Obviously, the pipeline case is very different. But the principle applies — if the Supreme Court can suspend the consequences of its own finding in one case, the Federal Court of Appeal surely can do it in another.
The language case was fairly simple. Because of the Manitoba Act of 1870, French rights had to be respected.
The pipeline case was more complex and nuanced. But the project had won 15 straight court decisions in B.C.
Then it ran into different judges in a different court. After hundreds of problems had been solved, two fixable failures stopped everything.
Most Canadians have always put a lot of faith in the courts. But we’re learning fast that judges’ opinions are as capricious as anyone else’s.
The proof this week is the bizarre judge-versus-judge dispute over Ontario Premier Doug Ford’s plan to trim the size of Toronto city council. The Constitution was interpreted in entirely contradictory ways.
The harm from last month’s pipeline ruling was far more serious. Those judges dropped the hammer of Thor when they only needed a screwdriver.