Alberta Premier Rachel Notley supports twinning the Trans Mountain pipeline to deliver that land-locked Albertan bitumen to the British Columbia coast—to tankers eager to ship it to markets across the vast Pacific.
British Columbia Green Party leader Andrew Weaver and British ColumbiaN.D.P. leader John Horgan promise to stop it. And their governing accord potentially gives them access to the levers of provincial power.
Weaver asked Notley to look at section 35 of the Canadian Constitution (see video link at end of this post).
What is it?
It constitutionally protects Aboriginal treaty rights. For projects that affects the lands that are or may be covered by a treaty, it means there must be meaningful consultation by the government.
Not just consultation—showing the affected group the plan and answering their questions is not enough. It must be meaningful. The government must give the affected group a robust chance to participate in the decision-making process. This is especially potent where the Aboriginal group have a treaty or a strong claim to the land. And where the potential effect to the land is profound.
Like a pipeline transporting oil across it.
Aboriginal groups can challenge the project in the courts under a claim that the consultation was not meaningful. Some of the affected ones have done just that, filing in the Federal Court in 2016.
Such actions could delay the pipeline pending the outcome of the action, which in turn could run for years.
Add to this the high hurdle the pipeline faces, one the British Columbia government can exploit.
National Energy Board Guidelines
The federal government has jurisdictions over pipelines that cross provincial borders. The National Energy Board is the administrative body that exercises this power.
The Board preliminarily approved the pipeline in May, 2016, subject to 157 conditions that pipeline builder Kinder Morgan Canada must meet.
Yes: 157 conditions.
Fulfilling these is daunting, and embedded in some of them is the chance for the provincial government to strike.
Certain conditions require Kinder Morgan to consult with the B.C. government on a range of issues—an avenue for the provincial government to claim otherwise to the Board.
Some conditions require permits/licenses from the provincial government. Yet another way for the provincial government to flex their anti-pipeline muscle.
The conditions gives British Columbia the ability to frustrate the pipeline within the existing guideline under the federal law.
And they still have other powers to exercise.
Levers of Power
Perhaps legally stopping the pipeline is not feasible. But the Greens and N.D.P. will have control of the legislature, and with it the power to institute laws and regulations.
This is where Kinder Morgan could be frustrated.
The new government could potentially legislate laws that will slow the construction. The how or when is an exercise in speculation at this point. But a twinned pipeline that’s expected to cross a vast boundary, on a path dotted by mountains, waterways and habitats, leaves much room for such action.
This in turn leads to the practical consequences for Kinder Morgan. Actions against provincial laws must be initiated in the courts—a costly and potentially lengthy process.
The pipeline will cross mountain ranges. The harsh winter offers only a small window each year for construction. Not starting or continuing construction during this window potentially leads to delays of many, many months. Any actions in the courts or delays from provincial laws could capitalize on this.
Politics is also a factor. How far will the federal government go in countering an aggressive B.C. government? The next federal elections are scheduled for 2019. 15 Members of Parliament from the Liberal Party of Canada, the governing party, currently hold seats in the Lower Mainland. This is the Vancouver-and-surrounds area dominated by the B.C. N.D.P. and their anti-pipeline platform in the recent elections. Will the Liberal Party of Canada risk these seats for the pipeline?
Another question is the reaction of the other provinces to a federal government pushing a contentious project over the will of a provincial government, and a majority of the electorate. How will Quebec, a traditional battleground province in federal elections—with a deep current of provincial rights and skepticism of federal government control—react? Quebec was central to the Liberal Party of Canada’s election victory in 2015, and it too is facing the potential entrance of an oil pipeline that polls show is deeply unpopular. Will they continue to support a federal government that’s countering B.C.’s will?
Timing can prove to be the ally of the new B.C. government with these factors.
Claiming that the incoming B.C. government is nearly powerless to stop the pipeline is hyperbolic.
The law may be on the pipeline’s side, ultimately. But practical considerations loom.
And the incoming British Columbia government will control the tools to weaponize it.
Assuming the new British Columbia government assumes power, it is an interesting time ahead for those with an eye for the constitution and politics.