Trans Mountain Expansion is a done deal, construction like to start in Sept.
Can a BC NDP minority government hinder or stop construction of the Trans Mountain Expansion pipeline? Some British Columbia politicians think so, some ill-informed pundits also think so, but the opinion of scholars is that the Canadian Constitution and 60 years of legal precedent say otherwise. That leaves opponents only one option, the only option they’ve ever had: politics.
The only reason this issue is receiving public attention is the uncertain May 9 British Columbia election.
Liberal premier Christy Clark was left one seat short of a majority – pending judicial recounts, which should be done in a week or so – leading to speculation that NDP leader John Horgan may form government supported by Green Party leader Andrew Weaver, whose party garnered three seats.
Both Horgan and Weaver are staunch opponents of Kinder Morgan’s $7.4 billion pipeline, which would twin the existing Trans Mountain line for much of the route, and terminate in Burnaby.
But Burnaby Mayor Derek Corrigan is rabid by comparison. The long-time NDP supporter, whose wife Kathy was a two-term NDP MLA but did not seek re-election, has promised to throw himself in front of the bulldozer if the pipeline can’t be stopped by legal means.
Wags have suggested it might take two bulldozers to remove the portly mayor, but make no mistake, Corrigan and any other Trans Mountain Expansion protestor who breaks the law will be arrested and charged, according to Jim Carr, federal minister of natural resources.
“If people choose for their own reasons not to be peaceful, then the government of Canada, through its defence forces, through its police forces, will ensure that people will be kept safe,” Carr said back in Dec.
“We have a history of peaceful dialogue and dissent in Canada. I’m certainly hopeful that that tradition will continue. If people determine for their own reasons that that’s not the path they want to follow, then we live under the rule of law.”
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What might a Premier Horgan be able to do under the law to stop Kinder Morgan?
National Post columnist Andrew Coyne argued Thursday that despite clear federal jurisdiction, “there are plenty of ways a determined provincial government could make trouble, for example by denying permits for supporting infrastructure like roads.”
In a word, no. At least not according to the constitutional scholars I interviewed.
According to Prof. Margot Young, University of British Columbia, Section 92 of the Constitution Act of 1867 gives absolute authority over “works and undertakings” – projects like pipelines – that connect two or more provinces.
“So it’s absolutely right that this pipeline lies within federal jurisdiction,” says Young.
“There can be provincial laws that affect pipelines but they can’t prevent the exercise of the fundamental federal jurisdiction order interprovincial transportation,” says Prof. Dwight Newman, University of Saskatchewan.
If the BC government hikes BC hydro rates in an attempt to hinder Kinder Morgan, for instance, the company would have the option of suing for damages, according to Newman.
Damages on a multi-billion dollar project could be substantial.
And not very popular with BC voters, who might be heading back to the polls in months if a minority government takes power in Victoria.
The only wiggle room on this issue, and it would appear to be a Hail Mary play with little hope of success in the short-term, is a legal challenge based on a looser “co-operative federalism” interpretation of Sect. 92, according to Prof. James Coleman of Southern Methodist University.
He said in an interview that provinces can impose conditions as long they don’t make the project “unviable.” Horgan would presumably argue in court that even conditions that render Trans Mountain Expansion unviable should be allowed given the degree of opposition within the province.
Young agrees: “[Co-operative federalism] is where you don’t have a stark division between what the federal government does, what the provincial governments do. Instead, you have a division of powers that recognizes the best scenario is where both levels of government are cooperating.”
Ali Hounsell, company spokesperson, said in an email that it plans to bring in the bulldozers starting in Sept., by which time it expects to have project financing in place.
Short of a successful First Nations legal challenge – there are still several before the courts – it’s hard to imagine what the BC government could do between now and the fall to stop Trans Mountain Expansion.
Kinder Morgan has the Canadian Constitution and legal precedent on its side, and the tax revenue-hungry Trudeau government warning opponents not to break the law or risk consequences.
And let’s not forget about strong political support for Trans Mountain Expansion from Alberta Premier Rachel Notley, who is joined at the hip with Trudeau on energy and climate policy.
Opposition from a possible premier of British Columbia seems paltry by comparison.