Refusal to use NEB to put Horgan in his place, bungled aboriginal consultations, are legitimate Alberta grievances. Now we need solutions.

The end of a year is traditionally a time when news organizations look back at the top stories of the past 12 months and this space is no different. And – phew! – has there ever been a lot of energy news to cover. But given the enormous outpouring of rage (secession over a pipeline? Really?) in Alberta these days, I want to focus on just one: the Trans Mountain Expansion mistakes by Prime Minister Justin Trudeau.

Despite all of the ink spilled flaying Ottawa for the pipeline debacle and all the oil patch worker rallies and all the irresponsible and inflammatory comments on social media by so-called leaders of industry, no one has actually explained what Trudeau did wrong.

If we can’t identify his errors, how can we demand that he fix them?

And if we can identify those errors and suggest ways the federal government can fix them, them maybe Alberta can make a constructive contribution to the Trans Mountain Expansion debate instead of the existential howling we hear from so many quarters.

Mistake #1 – Not amending the NEB Act to further empower national regulator

BC Premier John Horgan knew shortly after forming government in May , 2017 that the province didn’t have constitutional authority to stop the 525,000 b/d Kinder Morgan twinning of the existing Trans Mountain pipeline.

BC Premier John Horgan, right, Environment Minister George Heyman.

BC Environment Minister George Heyman admitted during a spring legislative committee meeting in response to questions from Liberal MLAs that “It was made clear to me, made clear to us, that [constitutional] issues of inter-jurisdictional immunity and paramountcy meant that we couldn’t simply do what we initially, in opposition, thought was an option for government.”

Plan A failed, but Plan B worked to perfection.

“We do have authority to apply conditions that are attached to the [BC] environmental assessment, a certificate, and to propose regulations to defend BC’s coast,” Heyman said.

The Horgan government proposed five new regulations on January 30, 2018, including the infamous Point 5 that claimed the right for BC to restrict the shipment of bitument across the province in a federally regulated pipeline.

That announcement set off an explosion in Edmonton as Premier Rachel Notley banned BC wines from Alberta, stopped the $500 million purchase of BC Hydro electricity, and later enacted legislation to “turn off the taps” on Trans Mountain.

The bitter conflict between Horgan and Notley unnerved proponent Kinder Morgan, as no doubt was BC’s plan.

The premiers and the Prime Minister met in Ottawa and afterward Trudeau promised legislation to assert federal authority over the pipeline project.

Premier Rachel Notley and Prime Minister Justin Trudeau.

That never happened, for two reasons.

One, Quebec penned an open letter objecting to the Canadian government’s plans.  “The essence of federalism since 1867 has been collaboration, and it has to stay that way,” Premier Philippe Couillard wrote.

Two, a source in a position to know told Energi News that the Liberals could not bring themselves to use the National Energy Board, which they criticized during the 2015 election campaign as captured and broken, to resolve the impasse with BC.

That was a mistake.

The NEB is not only the federal regulator and, until Bill C69 passes, the federal agency responsible for pipeline reviews, but it is also a superior court. Only the Federal Court of Appeal and the Supreme Court are above it.

As a court, the NEB had all the power it needed to rule on constitutional jurisdiction disputes.

In fact, it exerted federal authority when it decided in December of 2017 that the City of Burnaby was dragging its feet issuing tree cutting permits.

Unfortunately, the better part of a year was consuming submitting evidence, reviewing legal briefs, and finally making a decision.

The process was time-consuming and inefficient. The Liberals could have fixed that by amending the Act.

They chose not to, which is why Canada now owns a pipeline company and its $8 billion project.

Mistake #2 – Failing to learn the aboriginal consultation lessons of Northern Gateway

In late August, the Federal Court of Appeal quashed the federal cabinet’s approval of Trans Mountain Expansion based upon a challenge led by several West Coast First Nations, in part because the federal government was ruled to have bungled its constitutional “duty to consult” with affected aboriginal groups.

The court concluded that the “Government of Canada was required to engage in a considered, meaningful two-way dialogue,” but instead limited consultation to “note-taking” and reporting the results of meetings with First Nations leaders to decision makers in Ottawa.

Energi News experts were of two minds on this part of the court’s ruling.

“The court was clearly looking for someone from the government who could walk into the room, listen to First Nation concerns, and then say, ‘Okay, we can change the project this way or that way.’ Unfortunately, that’s often not the way the federal government works,” according to Prof. James Coleman, who added that the duty to consult is not clear and other governments, most notably the Stephen Harper Conservatives, also got it wrong.

But Prof. Dwight Newman of the University of Saskatchewan law school faults the Liberals for not learning from the Conservatives’ mistakes: “All of the issues on the duty to consult, according to the court, are in mid to late-2016, when the Trudeau government was in place and they had the guidance from the Northern Gateway decision on what the minimum legal requirements are and they still didn’t manage to meet the legal requirements.”

The way forward

The Trudeau government has painted itself into a corner.

It may have bought the pipeline company, but it can’t restart work on Trans Mountain Expansion until it satisfies the court’s requirements. The NEB report on environmental impacts of more oil tanker traffic on the southern resident killer whale is due in February. Aboriginal consultations may not be done until the fall, if by then.

And Ottawa still hasn’t figured out how to prevent BC from overstepping its jurisdictional boundaries. Perhaps a ruling on BC’s reference question to the BC Court of Appeals on the fifth proposed regulation will clear up jurisdiction on bitumen shipments, but it’s not clear if it will clarify jurisdiction for other regulations BC may propose.

What a mess.

And it doesn’t help that Albertans, including some opposition politicians, keep proposing actions (like using the declaratory powers or the notwithstanding clause) that simply aren’t applicable to Trans Mountain Expansion.

Alberta has every right to be angry and frustrated with the current market access crisis. Jobs are on the line, probably the future of some oil patch companies, as well.

But if we’re going to demand action, let’s first hold the Trudeau government to account for its errors, then propose solutions.