Trans Mountain project will go through: Ottawa

B.C. can’t ‘infringe on federal jurisdiction that impacts the national interest’

The federal government insisted Thursday it will step in when necessary to ensure the Trans Mountain expansion project gets built, as it announced a restructuring of the process that saw the project approved.

Speaking in Calgary, Natural Resources Minister Jim Carr said the update to how major projects are assessed in Canada will restore public trust in the process, but the government stands by its approval of Trans Mountain and won’t let any province obstruct its progress.

“The government of Canada, as this process plays through, will be absolutely alert to any attempts to delay this project,” Carr said. “If there is an attempt by any government to infringe on federal jurisdiction in the national interest, then the government of Canada will intervene.”

Tensions around the development of the controversial $7.4-billion pipeline project were heightened last week when the B.C. government announced plans for more consultations on oil-spill readiness and a limit on increased diluted bitumen shipments until it’s confident in response measures.

On Wednesday, Kinder Morgan Canada Ltd. CEO Ian Anderson also called on the federal Liberals to move past words of support to actions of support.

“I’m expecting the federal government to help solve this dispute between the provinces,” Anderson said.

Carr said Thursday that Ottawa has already intervened on previous delays through the National Energy Board, which exempted Kinder Morgan from some delayed permits in Burnaby, and approved a dispute-resolution process for future permitting issues.

He said the federal government continues to talk with the provinces, including meetings today between officials from Ottawa and deputy ministers in B.C., but that no specific intervention is yet necessary from B.C.’s proposed consultations.

“The government of British Columbia is free to consult, the government of British Columbia cannot infringe on federal jurisdiction that impacts the national interest.”

Meanwhile, Environment Minister Catherine McKenna is working with her counterparts in Alberta and B.C. to try to find a solution to the trade war emerging between the two provinces over the pipeline expansion.

Amid the brewing trade war over the threatened regulation of the increased shipment of heavy oil through B.C., Alberta Premier Rachel Notley this week hinted at possible legal action, perhaps taken in concert with the federal government.

“There’s no question that we have opportunities to engage in a court challenge, and expect to do that notwithstanding that we’re dealing with a threat versus an actually implemented regulation,” she told reporters Tuesday.

“As far as the federal government goes, there’s a number of ways in which it can assert its authority here … certainly participating in a court challenge is one of those ways.”

By coincidence, one such legal option was floated in the B.C. capital the following day, at a forum attended by Attorney General David Eby.

The occasion was an event at the University of Victoria law school, honouring Ted Hughes, the former deputy attorney general, judge and conflict commissioner, on the publication of The Mighty Hughes, a book by journalist Craig McInnes about his remarkable career.

Eby graciously introduced Hughes, then settled into the front row for Hughes’ remarks, including a question period. Whereupon someone asked about the brewing jurisdictional showdown over the transport of heavy oil, a.k.a. bitumen.

If Hughes were still deputy attorney general, what would be his advice to the AG?

“Well he’s here,” replied Hughes, which got a good laugh I’m told.

“I would tell him to follow the law.”

Hughes then suggested one route could be to refer the matter directly to the Supreme Court of Canada, an option Canadian governments have sometimes used to expedite decisions on a critical timeline.

“Posturing with some real consequences appears to be in full flight to the advantage of nobody,” wrote Hughes in a followup email to me Thursday. “Irreparable harm to the federation could result if it is left as an open battlefield.

“The Supreme Court of Canada is in place to rule on a question such as this. Once the reference questions are agreed upon, it seems to me that the matter is of sufficient importance for the court to give it priority and opine without undue delay, which would be to the benefit of everyone.

“Would not a joint application by the antagonists to a court that has served us well in the past and today has the respect of the Canadian public be co-operative federalism at work in its finest form?

“I believe so, and if the trade war continues to rev up, the urgency for a sensible solution becomes magnified.”

Hughes acknowledged “perhaps B.C. has at least an arguable case to advance” in any court action that asserts its environmental jurisdiction to regulate the movement of goods through the province, even via federally regulated pipelines and ports.

But despite Hughes’ view that “time is of the essence,” B.C. is not seized by any sense of urgency.

On the contrary, Premier John Horgan has argued court action would be “way premature” because “there’s nothing to take to court.”

He repeated that view this week even as he complained that Notley’s boycott of B.C. wine unfairly picked on a B.C. industry when the appropriate response would be for Alberta to haul B.C. into court.

“When we have an intentions paper, which we expect to have by the end of the month, that will outline what we propose to do, then the (Alberta) premier will have something to talk about,” Horgan told reporters.

“But at this point, all we’ve done is announce our intention to consult with B.C.ers.”

The policy paper setting out B.C.’s intentions in regulating the movement of heavy oil may well include a number of options. Those may not be translated into specific regulations for another year, Environment Minister George Heyman admitted this week.

The delayed aspect of the B.C. government strategy would appear to have given pause to federal officials in contemplating the option of taking the province to court.

“The Trudeau government believes that in the absence of a draft regulation from the B.C. government, a judicial reference would be unlikely to produce a clear ruling,” according to a news report this week by Aaron Wherry of CBC News.

But CBC News also reported this bottom-line comment from an unnamed senior federal Liberal: “Ultimately the federal government will not allow any province to impinge on its jurisdiction over the national interest. Full stop.”

The Horgan government strategy is crafted to reap maximum benefit with the NDP government’s environmental and Green allies, without rushing to implement the regulations that might be targeted for legal action.

Which is clever politically, but also the kind of thing that warrants a political response.

For even as B.C. adds a year’s worth of uncertainty to a project the federal government regards as critical for the national economy, the Horgan government is pressing Ottawa for immediate action on multiple fronts.

The New Democrats need federal dollars to jump-start their $10-a-day child care plan. They expect Ottawa to remain on track to fund new transit lines in Vancouver and Surrey. They hope for a helping hand in making housing more affordable in Metro Vancouver.

Not to suggest the federal government would go so far as to make the link explicit. But an unexplained delay or two in delivering the funding for those provincial priorities might show up the Horgan bitumen strategy as too clever by half.

If the trade war continues to rev up, the urgency for a sensible solution becomes magnified. TED HUGHES, former deputy attorney general