June 21st, 2018

National Affairs: Few options for peace on the Mountain

By Medicine Hat News Opinon on April 13, 2018.

In the increasingly fiery debate over the planned expansion of the Alberta/B.C. Trans Mountain pipeline, there is no mystery about the conflicting end games of the three governments embroiled in the dispute.

But what about Kinder Morgan itself?

Alberta and Ottawa want to see the project designed to bring more of that province’s oil to tidewater completed — as planned until last weekend by its parent company — while British Columbia’s NDP government would like scrapped.

But what would an outcome, satisfactory enough for Kinder Morgan to resume work on the project by May 31, look like?

Is its ultimatum merely a prelude to walking away from a project that has become less potentially lucrative in the wake of the election in the United States of a pro-pipeline president, and the planned completion of two projects designed to link the Alberta oilfields to American refineries?

Alternatively, is the company essentially looking to minimize the risks to its shareholders by getting Canada’s pipeline-hungry governments to shoulder at least part of the risks?

In either case, the solution would involve Alberta and Ottawa joining forces to help finance the project.

Alberta Premier Rachel Notley has indicated her province would consider purchasing the Trans Mountain pipeline. Federal Finance Minister Bill Morneau has not ruled that option out.

Paving the road to completion with public funds could offer the two governments the path of least resistance to keep the project alive.

For if Kinder Morgan is expecting a sea change in the adversarial climate attending its implementation of the Trans Mountain plan between now and the end of May, it might as well be reaching for the moon.

It is not that the federal government does not have legal and constitutional tools in its box to try to ensure the project goes through but that it has none that is guaranteed to achieve peace any time soon on the pipeline front. Indeed, using those tools could make matters worse.

There’s no scenario that could transform B.C.s New Democrat minority government to be pipeline-friendly. Its survival and electoral prospects depend on sticking to its guns.

But even if one or more retaliatory federal moves against the B.C. government convinced the latter to wave a white flag, that would not deter demonstrators from picketing.

On the contrary, the foreclosing of alternative avenues to fight the project could translate into more pipeline opponents turning to the streets and civil disobedience.

And then there’s what the pro-pipeline forces want B.C.’s current government to desist from doing.

Premier John Horgan has not adopted a law to block the pipeline nor has his government proposed legislation to do so. By its own admission, such a bill might not survive a legal challenge. But Horgan is considering asking the courts if the province has a say in regulating the substances that transit through the province.

With Alberta Conservative leader Jason Kenney leading the charge, there are calls on Trudeau to slash federal social payments to B.C. presumably to discourage its government from pursuing those legal options.

To do so would place the federal government on a slippery slope that would likely lead straight to a wall of provincial resistance, along with more litigation.

It is not an affront to the rule of law or an abuse of provincial power to challenge the federal government’s constitutional authority in court.

Such moves have been a legitimate part of the workings of the federation for decades.

In the early ’80s it was in the courts that the bulk of then-Alberta premier Peter Lougheed’s battle against the National Energy Program unfolded.

During Stephen Harper’s recent tenure in power, Alberta and Quebec successfully challenged the federal plan to create a national securities regulator in court.

The threat of provincial court challenges was also instrumental in forcing Harper to refer his senate reform plan to the Supreme Court. It died there.

If the federal government slashed its transfer payments to provinces that engage in constitutional or legal challenges of policies Ottawa deems to be in the national interest, is Kenney saying he would expect no less of Trudeau if and when one or more Conservative-led provinces set out to fight the Liberal carbon-pricing plan in court?

Chantal Hébert writes on national affairs for Torstar Syndication Services.

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