When Notley banned BC wines from Alberta, Horgan declared April to be BC Wine Month and turned the fight with Alberta into a political advantage

BC is properly processing Kinder Morgan permits, referring disputed issues to court…so who’s really acting unconstitutionally?

The BC government released data Friday afternoon that sheds a different light on Rachel Notley’s claim that John Horgan is to blame for Kinder Morgan’s decision last Sunday to suspend “non-essential” spending on the Trans Mountain Expansion pipeline. In fact, there is an argument to be made ahead of the pipeline summit in Ottawa on Sunday that the BC premier has played Alberta and Canada like a fiddle.

The data in question concerns the 1,187 provincial permits required for the project, many involving First Nations consultation, according to the press release.

Thus far, 587 applications have been submitted to permitting agencies that include the departments of forestry, environment and climate change, transportation and infrastructure, as well as the BC Oil and Gas Commission.

Victoria says that 201 permits have been approved and issued, 386 are being reviewed, and another 600 remain to be submitted by the company.

Why do we care?

Because Kinder Morgan put the blame for its decision to put the pipeline in hiatus squarely on Horgan and company.

Kinder Morgan

KML Chairman and Chief Executive Officer Steve Kean.

“The fact remains that a substantial portion of the Project must be constructed through British Columbia, and since the change in government in June 2017, that government has been clear and public in its intention to use ‘every tool in the toolbox’ to stop the project,” CEO Steve Kean said in a press release at the time.

The new permitting data put the lie to that argument. Unlike the City of Burnaby, which unreasonably dragged its feet on permits and forced the National Energy Board to step on the company’s behalf in Dec., the BC government has clearly been fulfilling its legal obligations.

“Kinder Morgan president, Ian Anderson, reported to his shareholders on a conference call that there was no problem with the B.C. government’s handling of permit applications, that we were considering them,” George Heyman, environment minister, said during a committee meeting earlier this week, as recorded in Hansard.

“We are certainly applying due diligence, but we’re considering them appropriately. What we’re doing is what is within our jurisdiction and lawful for us to do…”

What else has the BC government been up to?

Well, it tried to interest the Federal Court of Appeal in overturning the Dec. 6 NEB ruling, but that was dismissed.

It intervened in the judicial review of the federal approval of Trans Mountain Expansion, but there are 17 applicants in total, including some BC municipalities, so nothing remarkable there.

The only other “unconstitutional attack” on the pipeline project was the late Jan. announcement that BC would consult with citizens about five proposed regulations, four of which involved the response to a diluted bitumen spill.

Kinder Morgan

Notley has used the pipeline fight with Horgan to bolster her own political standing, including rallies in Edmonton and Calgary which are critical to her 2019 re-election hopes.

Infamous Point 5 – “Restrictions on the increase of diluted bitumen (“dilbit”) transportation until the behaviour of spilled bitumen can be better understood and there is certainty regarding the ability to adequately mitigate spills” – was the spark that ignited the political explosion next door in Alberta.

Premier Notley suspended talks to buy $500 million of BC electricity, banned BC wine from the Alberta market, and convened a war council to help her devise more ingenious ways to punish BC for flouting the Canadian constitution.

And make no mistake, constitutional experts interviewed by Energi News are confident that the courts would find BC’s attempt to restrict dilbit shipments in a federally regulated pipeline to be unconstitutional.

But BC withdrew Point 5 from public consultations, as Heyman explained to in his committee meeting.

“We announced that we would not take it out for consultation. We would develop instead a reference to the courts to determine the constitutionality and the parameters of the extent of provincial jurisdiction, which I believe is an appropriate way to deal with a matter where there is a dispute between the parties,” he said.

Notley backed down and cancelled the wine ban, but after the company suspended the project, she announced her government would introduce legislation to restrict the flow of oil to BC refineries, thinking the prospect of $2 or $3 a litre gasoline might pressure Horgan to relent.

Kinder Morgan

PM Justin Trudeau, far let, shown here with oil sands workers during a recent tour, has been harshly criticized for his handling of the pipeline controversy.

Nope. Horgan simply pointed out that turning off the taps was itself illegal and exactly the behaviour Alberta was objecting to.

Let’s review what BC has actually done: campaigned against the pipeline; signed an agreement with the Green Party to stop the pipeline using “every tool in the toolbox”; then after being advised by its lawyers that stopping the project is illegal, it processed all permit applications in a lawful manner; then it proposed an objectionable regulation that it quickly withdrew and now intends to put before a court of law to determine the constitutionality.

In other words, BC hasn’t actually done anything. The Horgan government hasn’t passed objectionable legislation or introduced any new regulations yet. Its sole legal challenge failed.

All it has really done is talk a good game.

Oh, and provoke Alberta into significantly escalating the public political battle that now seems to have spooked Kinder Morgan, so much so that the Texas-based pipeline giant is now thinking about calling it a day and Prime Minister Justin Trudeau has to cut short an official visit to Peru to fly home and mediate between the two provinces.

Who is really to blame here?

Kinder Morgan

George Heyman, BC minister of the environment and climate change strategy.

Yesterday, Energi News argued that Trudeau has neglected this file and failed to either negotiate a political deal or exert federal authority through the NEB to provide certainty for Kinder Morgan investors.

But some blame has to be apportioned to Notley. Energi News has argued all along that punishing BC was not productive.

Now we find out that BC has been abiding by the law along, issuing permits as it should.

Now we find out, courtesy of Heyman, that BC invited both Canada and Alberta to join the reference case and settle the constitutional jurisdiction issue once and for all, but Trudeau and Notley declined.

Here is Heyman again: “The member referred to a constitutional crisis. There is no constitutional crisis. There is a constitutional disagreement, which we offered — after asking and inviting the federal government to join us — to resolve through a referral to the courts. That’s the appropriate way to do things. That’s the calm, reasonable, respectful, adult way to do things.”

Horgan has deftly maneuvered his opponents into looking desperate and aggressive, while he blithely follows proper procedure and appeals to the courts for clarification, the imminently “reasonable” thing to do.

Horgan and Heyman are likely going to lose this fight because the constitutional arguments appear to strongly favour Canada and Alberta.

But there’s no denying the BC premier has deftly played a weak hand. A March 21 Angus Reid poll showed Horgan tied for the most popular premier in Canada with a 52 per cent approval rating, due in part no doubt to his anti-pipeline rhetoric.

He has manipulated Trudeau, Notley, and Kinder Morgan for his own political purposes. If Trans Mountain Expansion is built, he fought the good fight to protect the BC coastline. And if it isn’t built, he’s a hero to important constituencies he needs lure away from the Greens.

For a politician looking ahead to an election in the near future when his minority government inevitably falls, he is well positioned to gain the four seats he needs for a majority.

Should that happen, a thank you note to Notley and Trudeau might be in order.