The one thing missing from dispute over Kinder Morgan pipeline is solutions. Notley should be providing them, not bickering with BC
Not content with banning BC wines from Alberta, Premier Rachel Notley is compounding her political miscalculation by appointing a council of eminent Albertans to advise her on how to anger British Columbians – including the roughly 50% who still support the Trans Mountain Expansion pipeline – even more. Someone needs to teach Notley how to shoot straight, her target is Justin Trudeau, not John Horgan.
“In response to British Columbia’s unconstitutional attack on our energy industry and the Canadian economy, Alberta is preparing retaliatory measures,” she announced Friday afternoon.
“The new task force is made up of leaders with deep connections throughout the country and expertise on these matters. It will help ensure Alberta’s response gets Ottawa’s and B.C.’s attention.”
Members of the “Market Access Force members include former New Brunswick Premier Frank McKenna, Former Deputy Prime Minister Anne McLellan, former Syncrude Canada president Jim Carter and noted legal scholar Peter Hogg.
Why is such an august collection of Canadian notables needed when the answer to the constitutional dispute over the 525,000 b/d Kinder Morgan proposal so simple and obvious?
Ask Prof. Hogg, who will no doubt agree that Sect. 92 of the Constitution gives exclusive jurisdiction over inter-provincial pipelines to the Canadian government, affirmed by a variety of legal precedents dating back to 1954.
Since Notley is also a lawyer, she no doubt understands the principle of paramountcy, which holds that when there is a jurisdictional overlap between the federal and provincial governments, the federal authority wins. Hands down. No questions asked. Fait accompli.
When Notley says this “is BC trying to usurp the authority of the federal government” she is absolutely correct.
BC is arguing the principle of “co-operative federalism,” where if federal and provincial authority overlaps, the two levels of government should strive to get along for the common good.
If the authority in question happens to include a pipeline project the province is implacably opposed to, and sharing jurisdiction leads to the “frustration” of National Energy Board and Government In Council approvals, well, BC is just looking out for the interests of British Columbians, indigenous rights, protecting the environment, and sundry virtuous objectives.
As it turns out, Notley understands the essential conflict very well: “This is not a fight between Alberta and BC…Ottawa needs to say clearly and unequivocally that BC’s actions won’t stand.”
This wasn’t a fight between Alberta and BC until she made it one by banning the sale of BC wines in her province.
Now, instead of focusing on what Ottawa can do to ensure “BC’s actions won’t stand,” Canadians are focused on a silly bun fight between NDP premiers that John Horgan dismissed with a sneer.
This is an important political screw up by Notley.
Trudeau already said Trans Mountain Expansion “will be built,” which is as explicit a repudiation as a Canadian prime minister can make of a provincial government’s obstructionist behaviour while actually in that province.
What the Liberal leader has not said is how he will resolve the jurisdictional conflict with BC.
Which is where Notley has a constructive role to play: she can provide Trudeau with the solution.
She can do it publicly, in the media, and in the process apply enormous political pressure on the dithering Prime Minister.
What might she propose?
She could demand that Trudeau instruct Peter Watson, CEO of the National Energy Board, which has already asserted federal paramountcy in its ruling over City of Burnaby foot dragging on brush clearing permits. to issue both provincial and municipal permits if the junior governments refuse to do so by a reasonable deadline.
This would be an aggressive move and it might spark a legal challenge in the Supreme Court of Canada from BC.
Or, according to energy law and policy professor James Coleman, Horgan will probably be reluctant to test Ottawa’s authority in court lest federal paramountcy be affirmed, effectively ending any hope of nipping at Kinder Morgan’s heels until the Texas-based pipeline company gives up in frustration.
A second appeared on the horizon Thursday when Natural Resources Minister Jim Carr announced radical changes to the way major resource projects are reviewed and regulated, including replacing the NEB with a new agency, the Canadian Energy Regulator.
The CER will require enabling legislation, which provides Trudeau with the opportunity to include all the authorities needed to resolve the dispute with BC and to ensure a similar challenge doesn’t arise in the future.
Carr has already promised industry that reviews and approvals will take place in a more efficient manner, with legislated timelines.
In the event that a province tries the foot dragging strategy, the CER bill could enable Ottawa to swoop in, process provincial and municipal approvals and permits in order to meet deadlines set down in federal law.
This option will take a bit longer than the first one, but Kinder Morgan – which has already hinted that its patience is running out – would probably tolerate the delay if the result was a new regulatory system that prevented current and future hijacking by obstreperous junior governments.
Solutions like the ones outlined above are what Notley should be talking about.
Put Trudeau’s feet to the fire with specifics.
Give the demand some teeth by suggesting that Alberta will re-think its aggressive support of Trudeau’s prized climate plan if action is not forthcoming.
Notley can be the deal maker.
By proposing a clear solution to the jurisdictional dispute, she can break the political logjam that threatens a piece of energy infrastructure critical to the Alberta economy.
Or she can continue feuding with Horgan in order to score political points against Jason Kenney, leader of the United Conservative Party, who has been pushing the retaliation line for months.
If Notley truly believes that BC is not the target, then call off the attack dogs and offer solutions. Trudeau and the Liberals don’t seem to have any.