Trudeau can’t fix TMX constitutional issues with new legislation…back to drawing board on indigenous consultation, marine shipping

Trans Mountain
On Friday, the National Energy Board announced it has released a condition compliance Letter Report giving Trans Mountain Pipeline NEB approval to begin construction of four segments of the controversial pipeline.  Trans Mountain photo. 

Invoking notwithstanding clause or Sect. 92.10(c) or introducing “special legislation” are all impossible, according to constitutional law experts

Constitutional law scholar Margot Young says there are three options available to Justin Trudeau after a court quashed his government’s approval of the Trans Mountain Expansion project. None of them include the notwithstanding clause, new legislation, or the federal declaratory powers, all of which have been (erroneously) advanced as fixes for what is rapidly becoming a constitutional crisis.

“One, appeal the decision to the Supreme Court of Canada. Secondly, try to meet the shortcomings identified by the Federal Court of Appeal. Thirdly, don’t go ahead with the pipeline,” the UBC law professor said in an interview.

The judicial review dismissed most of the objections from the 17 applicants, led by the Tsleil-waututh and Squamish nations of coastal British Columbia, but upheld the arguments that indigenous consultation was inadequate and that the National Energy Board should have considered the environmental impacts of more oil tankers plying the West Coast.

The decision is a serious blow to the project.

Premier Rachel Notley has withdrawn Alberta’s participation in the national climate plan until the Prime Minister fixes the mess he created.

Her NDP government desperately needs shovels in the ground before the anticipated provincial election next May. Young and other experts interviewed by Energi News estimate that fixing the deficenies identified by the court will likely take a year or more.

The urgency in Alberta to get Trans Mountain Expansion built cannot be over-stated. A constrained pipeline system as another 500,000 b/d of crude oil supply from the oil sands comes on stream by the end of 2019 is the single biggest impediment to new investment, according to numerous sources Energi News has interviewed over the past year.

Industry supporters have been quick to offer all manner of strategies to get construction back on track.

Unfortunately, none of them are workable.

Take the call to invoke the notwithstanding clause, which has been raised by industry supporters and was rejected by the Prime Minister during a Wednesday radio interview.

The notwithstanding clause applies to the Charter of Rights and Freedoms, but doesn’t apply to Section 35 of the Constitution Act of 1982, which sets out the “duty to consult” indigenous communities, according to Young

I don’t get how they think it’s relevant. The notwithstanding clause applies to not even the full Charter but only to only two rights within it,” she said in an interview.

“There are often calls for the over-ride. People really don’t know what they’re talking about.”

Doug Black, senator from Alberta.

Another unworkable strategy is Alberta senator Doug Black’s S-245 bill, which has been garnering attention since the Federal Court of Appeal decision. The bill is based upon the federal declaratory powers as described in Sect. 92.10(c) of the Constitution.

Alberta MP Shannon Stubbs introduced it into the House of Commons back in May with this comment: “It would make explicit that all works related to the pipeline would be under the federal government’s jurisdiction, including all local roads, bridges, power connections, and the ongoing operation and maintenance of the pipeline. Therefore, the pipeline could not be held up any longer by other levels of government or anti-energy activists.”

I debunked S-245 in June after interviewing University of Saskatchewan constitutional law professor Dwight Newman, who was the star witness during Senate hearings about the bill.

Newman made clear that Black’s bill would not do what Stubb claims.

At best it would have two minor benefits.

One, there would be a “symbolic effect,” according to Newman, that might affirm Canada’s resolve to build the pipeline – though it’s hard to imagine that any more evidence for that resolve is required after the Trudeau Government agreed to buy the project and existing assets for a total of $4.5 billion.

Two, S-245 would send the message to future judges about just how seriously Ottawa takes the issue, in case there was any confusion on that point.

Shannon Stubbs, Member of Parliament for Lakeland Alberta).

Some commentators have also called for “special legislation” to over-ride the court’s decision, or the need to consult further with affected indigenous peoples.

There can be no legislative fixes for the federal government’s difficulties, says Nigel Bankes, chair of natural law resources at the University of Calgary.

“Certainly, in relation to this [marine shipping] decision and on the consultation question, Parliament could not change the result because the court has articulated it’s a constitutional duty that wasn’t fulfilled,” he said in an interview. “Parliament lacks the competence to change that result.”

Young agrees: “It can’t do that. The federal government can’t legislate constitutional change, it cannot change the constitutional requirements the court has read into section 35. That’s a constitutional provision addressable only by getting a different court judgement, that overturns and modifies past court judgements, or by the constitutional amendment process, which as we know is remarkably difficult if not impossible under the 1982 amending formula.”

Essentially, Trudeau’s hands are tied. His only options are a Supreme Court challenge of the lower court’s decision or fixing the problems described in the decision.

It appears he has chosen the latter.

During a radio interview Wednesday, the Prime Minister “downplayed the idea of an appeal,” according to the National Post.

“We are, right now, trying to figure out how to get work restarted on it but … the court was very clear: You need to do more on the environment. You need to do more on consultations, if anything is going to happen, so that’s what we are going to do,” he told 630CHED.

Notley has no doubt told him to hurry up and get on with the job. She withdrew her government’s participation in the national climate plan last week as a means of holding Trudeau’s feet to the fire.

Let’s hope it works.

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