Conservative Leader Andrew Scheer speaking to press conference, indigenous affairs critic Cathy McLeod

Scheer strategy a sop to pipeline industry, doesn’t stand up to scrutiny

Andrew Scheer has a strategy to save the Trans Mountain Expansion pipeline. Unfortunately, the central tactic – invoking the declaratory powers to assert exclusive federal authority – is unconstitutional and impractical. The rest of the Conservative leader’s plan doesn’t hold up to scrutiny, either, and some of it is downright undemocratic.

Scheer held a press conference Monday during which he described his rescue plan: “Today I will outline the steps Trudeau should take immediately to get the Trans Mountain Expansion built, and the steps the Conservative government will take in the future to undo the damage his failures have caused and instill a better process to get pipelines built,” he said. 

The Declaratory Powers and S-245

In fact, Prof. Dwight Newman of the University of Saskatchewan law school, the expert trotted out by Alberta UCP leader Jason Kenney and Senator Doug Black (backer of the Senate bill S-245, which is based upon fallacious legal arguments) as the champion of using Sect. 92.10(c) to end provincial and municipal opposition to the project, explained to Energi News in an exclusive interview in June that using the federal declaratory powers would have only two very limited benefits.

One, it would be symbolic, a public assertion that Canada is solidly behind the project.

The need for such symbolism, if it ever existed, was significantly undercut when the Trudeau Government agreed to buy Kinder Morgan Canada assets, including Trans Mountain Expansion, for $4.5 billion.

Money talks, even if it is taxpayer money.

Two, if a court ever wondered if the federal government was ever well and truly committed to the project, asserting the declaratory powers would remove any doubt.

What the declaratory powers do not do, and what S-245 if passed by the House cannot do, is stop BC Premier John Horgan from challenging NEB authority in court or stop anti-pipeline opponents from protesting.

In order words, there would be absolutely no immediate benefit whatsoever.

Special representative to complete indigenous consultation

This suggestion actually has some merit. After the Federal Court of Appeal decision that detailed how the Trudeau Government failed during Phase III of consulations around Trans Mountain Expansion, Prof. Newman wondered how it could do such a poor job when federal bureaucrats had the court’s 2016 decision quashing Northern Gateway approval fresh in their minds.

But Prof. James Coleman of the Dedman School of Law pointed out that what the court demanded – a government representative who could negotiate on behalf of the Crown with all affected First Nations – is also something all governments are very bad at.

“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,” said Coleman in an interview.

Why a special ministerial representative would fare any better than the federal consultation team isn’t at all clear. Nor is it clear that Trudeau would want to give that person the necessary power to negotiate in ways that would satisfy the courts.

Bill C69

This is the legislation passed by the House of Commons and currently before the Senate that changes the way Canada conducts environmental impact assessments of major projects like pipelines.

Scheer says he would immediately repeal the bill and return to the changes former Prime Minister introduced in 2012, which included requiring intervenors in a review to have “standing” – that is, to be affected by the project in some way.

This is a key demand of the Canadian pipeline sector. Opponents of Enbridge’s Northern Gateway and Kinder Morgan’s Trans Mountain Expansion flooded meetings and consultations, overwhelming the process and making it unworkable. Industry wants that stopped, for understandable reasons.

And there are other C69 provisions it doesn’t like. The big one is removing assessments from the National Energy  Board (which industry is familiar with and trusts) in favour of the Canadian Environmental Assessment Agency (which industry is unfamiliar with and distrusts).

Trash canning C69 would have no effect on Trans Mountain Expansion because that project is still governed by the NEB Act.

But walking back C69 isn’t the answer, either.

The bill concerns all major projects across Canada, about 60 a year, roughly 60 per cent of them mines. Extensive consultations were held for over two years. And the issues in play are complex with deep historical roots.

I’m writing a 5,000 word investigative report on C69 that will be published next week. After interviewing a dozen sources, including the Canadian Energy Pipelines Association as well as renowned experts on environment assessment law and practice, it’s clear change was needed.

Whether all the changes affecting pipeline projects were necessary or the correct choices is a matter for debate. CEPA CEO Chris Bloomer thinks C69 can be salvaged with some key amendments by the Senate. Other experts suggest the government can improve the bill, making it more practical and addressing some of the pipeline industry’s concerns, in the regulations.

But one thing is clear: national environmental assessment law and practice is complex with many competing sectors, and repealing it to please one industry – albeit a very important one – is a poor way to govern,

Banning foreign funding of environmental groups

This is the most pernicious of Scheer’s proposals.

The idea has been floated quietly – and sometimes not so quietly on social media – within industry circles for years.

It’s based upon the discredited work of Vancouver blogger Vivian Krause, who has spent countless hours tracking the flow of funds from American environmental charities to Canadian pipeline opponents, both non-governmental organizations and indigenous groups.

Krause’s research is not the issue, it’s her conclusions, which are not supported by the data and frankly border on conspiracy theory according to Energi News experts who have reviewed some of her op-eds.

Her hypothesis, widely supported Alberta energy executives, is that environmental activists are driving the opposition to Trans Mountain Expansion.

They and Krause are wrong.

Activists like Tzeporah Berman certainly provide logistical support to opponents and appear frequently on BC and national media, and their organizations certainly receive some measure of funding from outside Canada, though there is plenty of debate about just how much is dedicated to anti-pipeline campaigns (some funds research projects, for instance).

But industry supporters should not be confused about who constitutes the moral centre of the protest movement and much of its leadership: that would be the coastal First Nations.

For instance, the Tsleil-Waututh and Squamish nations led the judicial review application to the Federal Court of Appeal, whose recent decision led to construction ceasing.

Last March, when I covered a 7,000 to 10,000 person protest in Burnaby, it was First Nation leaders and elders who were the driving force and a few activists – including Berman – who were relegated to directing traffic.

But the refusal to recognize or acknowledge the real wellspring of opposition to Trans Mountain Expansion pales next to the idea that Canada would use the law to silence voices whose politics it disagrees with.

The Canadian oil and gas and pipeline companies have ample money to counter the ENGO message. They choose not to.

Companies only engage with the BC public to the extent they must, as prescribed by the NEB Act and regulations. Industry trade associations rarely engage with the public and then usually with politicians and other business groups.

And even still, public opinion polling shows that far more British Columbians support pipelines than oppose them.

If industry groups like CEPA don’t like ENGO opposition, let them get down in the trenches and fight for the support of BC voters.

Trying to rig the fight using the power of the Canadian government to restrict the speech and activities of Canadian citizens is an odious proposal and one of which Andrew Scheer should be ashamed.

The message here should be that Prime Minister Justin Trudeau has to do better. Full stop. The Liberals have mishandled the pipeline file and must up their game.