Column / Don Newman

Supporters of the twinning of the Trans Mountain pipeline carrying oil sands bitumen from Alberta across British Columbia to the Pacific Ocean always knew the project would be a tough sell.

But no one realized just how tough a sell it would be, even after the political landscape changed last summer when the New Democrats—propped up by three Green Party members in the B.C. Legislature—replaced the Liberals as the provincial government.

And not many people realized that there would be a lot more at stake than getting the product of the Alberta oil sands to tidewater and onto ships bound for the markets of Asia.

But there is. Over the past year, what seemed like the easiest pipeline project to get approved and built has become weighted down with most, if not all, of the ‎issues that are central to politics and public policy in Canada, particularly in 2018: Energy versus the environment, federal versus provincial rights and reconciliation with Indigenous peoples.

The NDP government of John Horgan ran against the Trans Mountain twinning in the B.C. Election in 2017. It finished a close second, two seats behind the pro-pipeline Liberals. But three Green Party MLAs hold the balance of power, and when they threw their support to the NDP, it meant that any possibility the NDP position could be moderated was no longer in the cards.

Instead of negotiating conditions to make the pipeline more palatable, the Horgan government has gone for the nuclear option. It has drafted legislation which gives it the authority to regulate bitumen in pipelines that cross provincial territory. Supported by some Indigenous groups and environmentalist organizations, it has submitted the proposed legislation to the B.C. Court of Appeal.

The fact it has asked for a court ruling means the government in B.C. knows it doesn’t have the jurisdiction it is trying to enforce. Since the 1920s, courts—including the Supreme Court of Canada—have ruled that inter-provincial pipelines are a federal responsibility. That is the argument that the Trudeau government and the government of Alberta will make when they oppose the B.C. initiative. And, since the Trudeau government has approved the twinning of the pipeline, the B.C. Government will lose, even if the issue ends up at the Supreme Court of Canada.

But will it really lose? Court cases take time, Kinder Morgan has imposed a tight deadline of May 31 for B.C. dropping its obstruction or it says it will abandon the project. It is quite possible the case could still be before the courts when the deadline is reached. Federal and Alberta government efforts to underwrite some or all of the costs to prevent Kinder Morgan from walking away may prevent that. But even if they do, Premier Horgan can show his Green Party partners that he did all that he could to block Trans Mountain and remain in office with their support.

And if the plan is salvaged and work begins. What then?

Environmentalists and those Indigenous groups still opposed to construction say they will block the pipeline right of way with thousands of protesters. Who will remove them? Normally a provincial government would ask Ottawa to send in the army to handle such a disturbance. But would a B.C. government opposed to the pipeline do that—particularly when the protesters are its supporters?

In my view, there are compelling economic reasons for proceeding with the twinning of the Trans Mountain pipeline. But even more important, allowing demonstrators to forcefully block a legally approved pipeline would make a mockery of the rule of law.

The law must be upheld in a democracy. Already the Constitution is being strained by the fight between Alberta and British Columbia, and the dispute between Ottawa and B.C. Excessive Indigenous protest or blockades could strain the reconciliation process. The viability of major economic development projects could be put into question for years to come.

Clearly, there is a lot more at stake in the future of the Trans Mountain project, than just getting more Oil Sands production to tide water on the west coast.  

 

Don Newman is Senior Counsel at Navigator Limited and Ensight Canada, Chair of Canada 2020 and a lifetime member of the Canadian Parliamentary Press Gallery. dnewman@navltd.com