Alberta about to be hoist on petard of its own insistence that rule of law govern West Coast pipeline fight

Alberta, industry demanded rule of law be upheld…which means abiding by time-consuming rules, processes set out in NEB Act

The Alberta legislature passed a motion 70-0 yesterday calling on the Canadian government to take all “necessary legal steps” to get the Trans Mountain Expansion pipeline built. Now what? There is no easy answer to that question because Prime Minister Justin Trudeau has very few legal avenues open to him, according to the constitutional and legal experts consulted for this column.

The one thing that Albertans, in particular, must understand is that the Prime Minister cannot simply call National Energy Board CEO Peter Watson into his office and direct him to expedite the process, agreed Nigel Bankes, professor and chair of Natural Resources Law at the University of Calgary, in a telephone interview.

The federal government may have jurisdiction over inter-provincial pipelines as set out in Sect. 92.10(a) of the Canadian Constitution. And the constitutional principle of paramountcy – which states that provincial governments cannot use their laws to frustrate or impair a federal project – may have been affirmed by the NEB, a superior court under the NEB Act.

But the great irony here is that if Alberta and the oil and gas industry want the rule of law upheld, then that means following the rules and processes set out in the laws of the land, primarily the NEB Act in this case.

Unfortunately for Alberta and Kinder Morgan, the Texas-based proponent of the 525,000 b/d project, the wheels of the law grind slowly.

And most slowly when clever governments in BC use the rules to gum up the works.

For simplicity’s sake, there are two over-riding issue in play, both of which the BC government of NDP Premier John Horgan will be referring to the Federal Court of Appeal.

One, federal “over-reach” when in Dec. the NEB issued tree cutting permits to Trans Mountain Expansion that are the purview of the City of Burnaby.

The NEB reviewed voluminous correspondence between Kinder Morgan and the City, finding that Burnaby had no interest in efficiently processing the permit applications.

As permitted by the NEB Act, the national energy regulator issued them instead of the City.

Energi News reported yesterday that BC has retained legal heavyweight Joseph J. Arvay to help draft the reference case to the Federal Court of Appeal.

That court’s decision will likely be appealed to the Supreme Court of Canada, possibly delaying construction even further.

BC’s claim will likely ask, where is the line between rigorous process and foot dragging?

Two, Alberta and Canada have claimed the BC government’s infamous Point 5 regulation, which intended to restrict diluted bitumen shipments until more science is available to inform spill responders, is unconstitutional because only the NEB can regulate what flows in an inter-provincial pipeline.

With two cases soon to be before the federal court, what legal steps does Canada have at its disposal?

Not many, says Bankes.

One option would be to argue in court against BC application for leave to present its case. If the court agreed with the feds, BC’s delaying tactics would be stillborn.

Bankes also points out that BC hasn’t really done anything yet for Canada to respond to.

Intentions to consult the public on spill response issues and prospective regulations counts for nothing until those regulations are actually ensconced in legislation.

“It was important for us to show we were united in the legislature as Albertans,” UCP House Leader Jason Nixon told reporters yesterday. “With that said, that does not let the NDP off. They have not gone far enough.”

My constitutional experts agree that Alberta Premier Rachel Notley can’t go any further, not legally anyway.

A brief ban on BC wine simply prompted derision from Horgan and a promotional campaign to support his province’s wine industry.

Withdrawing from talks to buy BC electricity was met with a yawn from Victoria.

Notley can rattle her sabre all she likes, but there really is little of substance she can do advance the Trans Mountain Expansion process.

This is a federal battle.

And make no mistake, Trudeau holds the constitutional hammer.

Unfortunately, swinging that hammer requires abiding by the rule of law and suffering the snail’s pace at which legal proceedings advance.