Is Canada in midst of constitutional crisis over Kinder Morgan pipeline or just careering madly toward one?

(l-r) Alberta Premier Rachel Notley, BC Premier John Horgan, Prime Minister Justin Trudeau

Only resolution to jurisdiction dispute may be to refer matter to Supreme Court of Canada, but Kinder Morgan deadline is May 31

As of Tuesday, Canada appears to be on the Trans Mountain Express hurtling toward a train wreck: federal cabinet ministers fled an emergency meeting called by Prime Minister Justin Trudeau to find a solution to the impasse, Alberta says it might consider buying the entire pipeline project from Kinder Morgan and building the damn thing on its own, British Columbia won’t budge, and the Assembly of First Nations condemned Canada for not recognizing the withholding of consent by BC coastal First Nations. Is this a constitutional crisis? If it isn’t, it sure feels like one.

Alberta Premier Rachel Notley thinks Canada is teetering on the precipice.

“If the national interest is given over to the extremes on the left or the right, if the voices of the moderate majority of Canadians are forgotten, the reverberations of that will tear at the fabric of Confederation for many, many years to come,” she said in the legislature Tuesday.

“We’re not going to let that happen.”

Prof. James Coleman, a constitutional scholar specializing in energy policy and law, says Canada probably is in the first throes of a constitutional crisis.

“Generally, people define a constitutional crisis as a politically-fraught situation where government actors are acting outside of their usual traditions and testing the limits of their constitutional power,” he wrote in response to emailed questions.

The Trans Mountain situation certainly seems to fit the bill, he argues.

“Provincial governments normally don’t promise to stop federally-approved projects, but here we have a coalition majority that’s founded on exactly that promise,” he said. “And the federal government usually doesn’t have to abrogate local and provincial regulations, but here that’s what the NEB has done.”

Margot Young disagrees. The UBC law professor and constitutional expert says Canada is perhaps in the midst of a political crisis, but none of the parties involved have yet violated the Canadian Constitution.

“Disagreements between governments in a federal state are par for the course. That’s why we have a constitution that sets out a division of powers,” she said in an interview.

“When push comes to shove, and you have the federal government wanting one thing and a provincial government wanting something else, you have the courts which says definitively what can be done under the Constitution.”

BC Green Party leader Andrew Weaver, whose party holds the balance of power in the legislature and has a deal with Horgan to oppose Trans Mountain Expansion in return for propping up the NDP minority government, harshly criticized Notley for her comments.

“In Alberta, Ms. Notley is engaging in her own fear-mongering by alleging this amounts to a ‘constitutional crisis’. It is irresponsible to be throwing such inflammatory terms around when B.C. is simply trying to consult with British Columbians and to seek scientific evidence about a substance that poses a significant risk to our communities and to our economy,” he said in a statement.

Canada update

The Liberal government cabinet met Tuesday to discuss solutions to the Trans Mountain Expansion impasse, but ministers leaving the meeting refused to talk to reporters.

Finance Minister Bill Morneau did speak to news media, but did only repeated earlier assurances from Trudeau and Natural Resources Minister Jim Carr that the government is committed to getting the pipeline built using all the tools available to it – legal, regulatory, and financial.

Morneau did say he has a Wednesday meeting with Notley to discuss the issue.

“[It’s] a private meeting to talk about the situation in Alberta, to make sure that we’re working together, to ensure that we get this project done,” he said, as reported by Global News.

Natural Resources Minister Jim Carr would not rule out Canada joining Alberta to invest in the project.

“We’ve been saying, for the last two days, we are prepared to look at many options,” Carr told reporters after the cabinet meeting, as reported by CBC.

“That has not changed. We believe that there are many options that will be of interest for the government of Canada. We’ll examine them all thoroughly.”

Alberta update

“We are considering a number of financial options to ensure that the Trans Mountain expansion is built, up to and including purchasing the pipeline outright if were to come to that, but it is not the only model we’re considering,” Notley said in the statement Tuesday.

“Obviously the best interest and outcomes for Albertans will be front and centre as we explore these options.”

Jason Kenney, United Conservative Party leader, supported the Alberta government’s objectives.

“I have fought the idea of corporate welfare my whole life. I don’t like the idea of putting taxpayer dollars at risk in any kind of private sector venture, but I think these are truly unique circumstances,” Kenney told reporters on his way into the legislature Monday, as reported by Postmedia.

“We are facing a catastrophe for our economic future if we don’t get a coastal pipeline.”

British Columbia update

“I’m always concerned when a jurisdiction to our east decides that they are going to take provocative action because of our attempt to talk to British Columbians about how we protect our environment,” BC Premier John Horgan told reporters in response to Notley’s threat to turn off the oil taps.

“I don’t believe legislation that would put an adverse impact on the people of B.C. is in anyone’s interest and I’m surprised the government of Alberta is bringing it forward.”

Weaver issued a statement is calling for politicians to hold themselves to a higher standard of facts and evidence in discussions around the Trans Mountain pipeline, then went on to contradict himself with a claim that is not supported by researchers.

“The risk of Trans Mountain lies in the way diluted bitumen behaves in an ocean spill. Studies using suspended particulate matter, which characterizes the water off B.C.’s coast, suggest that bitumen would in fact either form tar balls or sink.

“There is not sufficient scientific evidence on whether such a spill could be cleaned up.”

Energi News has interviewed four leading scientists on the state of research into how diluted bitumen behaves in a marine environment. In each instance, the researchers said that while there are small gaps in scientific understanding that should be filled in the near future, on balance there is sufficient information to design adequate spill response strategies.

Watch for the upcoming Energi News investigative report on dilbit research and West Coast response capabilities.

Assembly of First Nations addresses issue of indigenous consent

For the first time, the national organization representing Canadian First Nations weighed in on the Trans Mountain Expansion controversy, aligning themselves with BC coastal First Nations that have vehemently opposed the project.

“Free, prior and informed consent means First Nations have the right to say yes or no and to determine conditions for development in their territories,” National Chief Perry Bellegarde said in a statement.

“As self-determining peoples with title and jurisdiction, First Nations must be involved from the outset of discussions and throughout the decision-making process. Together we must arrive at a process that respects rights, title, and free, prior and informed consent consistent with the United Nations Declaration on the Rights of Indigenous Peoples.”


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