Ottawa’s Trans Mountain gong show

National Post (National Edition) - - FP COMMENT - Dwight New­man Dwight New­man is a Munk Se­nior Fel­low with the Mac­don­ald Lau­rier In­sti­tute and Pro­fes­sor of Law at the Univer­sity of Saskatchewan.

The end-of-may dead­line im­posed by Kinder Mor­gan to get clar­ity on its proposed Trans Mountain pipe­line ex­pan­sion is loom­ing. Quite un­der­stand­ably, peo­ple have be­gun ask­ing what has hap­pened to the planned com­bi­na­tion of leg­isla­tive steps and ne­go­ti­ated fi­nan­cial sup­port first proposed by the fed­eral gov­ern­ment in early April. Is this plan still go­ing to hap­pen? and can it?

Canada can still get this done. But it will re­quire a larger role for leg­is­la­tion and ro­bust fed­eral gov­ern­ment ac­tion than seems to have been on of­fer thus far. I want to de­scribe a route for­ward, but we need first to un­der­stand the cur­rent con­text.

On May 15, Prime Min­is­ter Justin Trudeau made some dis­jointed com­ments on the Trans Mountain pipe­line, of­fer­ing only vague as­sur­ances of progress. Within hours of neg­a­tive me­dia commentary com­menc­ing, a late-evening an­nounce­ment was sent out that Min­is­ter of Fi­nance Bill Morneau would an­swer ques­tions the next morn­ing.

On May 16, Morneau in­di­cated a plan to com­pen­sate Kinder Mor­gan for any project de­lays re­sult­ing from Bri­tish Columbia’s on­go­ing po­lit­i­cal in­ter­fer­ence. Ne­go­ti­a­tions are ap­par­ently con­tin­u­ing. Some jour­nal­ists, such as Evan Solomon, have cited anony­mous gov­ern­ment sources as say­ing that the sub­ject may be turn­ing to a gov­ern­ment pur­chase of the project.

Morneau’s com­ments al­luded to still us­ing leg­isla­tive steps, but only with an in­di­ca­tion that gov­ern­ment of­fi­cials are con­sid­er­ing op­tions. Chan­tal Hébert in the Toronto Star ques­tioned this week whether leg­is­la­tion could make it through Par­lia­ment on any rea­son­able time­line, mainly be­cause of pos­si­ble chal­lenges in the Se­nate, and sin­gled out Se­na­tor Mur­ray Sin­clair as be­ing set to block the pipe­line.

The sug­ges­tions about the Se­nate and Sin­clair specif­i­cally il­lus­trate just how far off-track some of the anal­y­sis has got­ten. Un­no­ticed by much of the commentary, the Se­nate Trans­port and Com­mu­ni­ca­tions Com­mit­tee re­ported back on May 10 on a per­ti­nent bill called Bill S-245: The Trans Mountain Pipe­line Project Act. The com­mit­tee rec­om­mended the third-read­ing vote that will adopt it and let it move to the House of Com­mons. And, con­trary to a cer­tain nar­ra­tive, dur­ing com­mit­tee pro­ceed­ings Se­na­tor Sin­clair, while seek­ing fur­ther as­sur­ance that the bill af­fects only fed­eral/pro­vin­cial issues and does not un­der­mine In­dige­nous le­gal po­si­tions, in­di­cated that he sup­ports this bill.

Se­na­tor Doug Black of Al­berta pre­sciently first in­tro­duced Bill S-245 in Feb­ru­ary. It would de­clare the Trans Mountain project a work “for the gen­eral ad­van­tage of Canada.” For those that like le­gal de­tails, that is spe­cial le­gal lan­guage that trig­gers sec­tion 92(10)(c) of the Con­sti­tu­tion Act, 1867.

In sim­pler terms, it marks a con­sti­tu­tional dec­la­ra­tion by the fed­eral gov­ern­ment of the ex­clu­sively fed­eral author­ity over this par­tic­u­lar project and that pro­vides an on­go­ing frame­work for fed­eral author­ity. Although not used as much re­cently, the un­der­ly­ing power has been used hun­dreds of times in Cana­dian his­tory. It has been used at least dozens of times in the con­text of in­ter­provin­cial and in­ter­na­tional projects to re­in­force fed­eral author­ity that would al­ready have ex­isted.

To be clear, it should not be nec­es­sary to adopt such leg­is­la­tion. In le­gal terms, the pipe­line is al­ready clearly in fed­eral ju­ris­dic­tion and prov­inces are not legally able to in­ter­fere with such a fed­eral project.

But Bri­tish Columbia has been ex­ploit­ing some the­o­ries about the pos­si­bil­ity of over­lap­ping pro­vin­cial reg­u­la­tion on en­vi­ron­men­tal mat­ters to cre­ate on­go­ing un­cer­tainty. It set in course a multi-month pro­cras­ti­na­tion ex­er­cise of send­ing a ref­er­ence case to its pro­vin­cial Court of Ap­peal that will now take much longer for a res­o­lu­tion. And the fed­eral gov­ern­ment has thus far played along, in­di­cat­ing it will be an in­ter­vener in that case.

A more proac­tive fed­eral route is pos­si­ble. Adopt­ing Bill S-245 in the House of Com­mons once it moves over from the Se­nate should be a no-brainer and can be done quickly on a bi­par­ti­san ba­sis with Lib­eral and Con­ser­va­tive sup­port. It will mark a clear re­asser­tion of fed­eral author­ity.

It is also open to the fed­eral gov­ern­ment to speed up ju­di­cial de­lib­er­a­tions. In­stead of in­ter­ven­ing in a slow-mov­ing pro­vin­cial court ac­tion, it could re­fer the same ques­tions over to the Supreme Court of Canada for an ex­pe­dited hear­ing.

A clar­i­fied le­gal land­scape might avoid the need to buy a pipe­line. And stand­ing up for le­gal clar­ity would also be a pos­i­tive sign for fu­ture in­vestors. Right now, it looks like Canada will just run a gong show en route to back­door na­tion­al­iza­tion. It’s time, in­stead, to get back to the rule of law and get Canada work­ing again.

A CLAR­I­FIED LE­GAL LAND­SCAPE MIGHT AVOID THE NEED TO BUY A PIPE­LINE.

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