Is it time for Canada to take over complete oversight of Trans Mountain Expansion, including having the RCMP enforce federal decisions?
If Prime Minister Justin Trudeau had any illusions that BC Premier John Horgan might back off in the fight to build the Trans Mountain Expansion pipeline from Alberta to the West Coast, they were dashed Tuesday. BC has served notice it is prepared to nip at the heels of Kinder Morgan until the Texas-based company abandons the project. The gloves must come off. Canada should order the National Energy Board to begin issuing any and all provincial and municipal permits and approvals, backed up by the full authority of the national government if necessary.
The issue at hand is BC’s announcement that it would move to Phase 2 of provincial regulations designed to improve spill preparedness, but are really the latest salvo in the war over the 525,000 b/d project that will carry diluted bitumen (dilbit) from Edmonton, Alta. to Burnaby, BC.
Victoria says it is only seeking feedback on a number of recommendations, one of which is “”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.”
No one is fooled by this poorly disguised sleight of hand.
Certainly not Alberta Premier Rachel Notley.
“The B.C. government has every right to consult on whatever it pleases with its citizens. It does not have the right to rewrite our Constitution and assume powers for itself that it does not have. If it did, our Confederation would be meaningless,” said Notley, who nailed the central issue in this debate, that the federal government has exclusive jurisdiction over inter-provincial pipelines and provincial and municipal governments cannot do anything that “frustrates” or “impairs” that authority.
A recent ruling by the NEB on the City of Burnaby’s foot dragging on issuing brush cutting permits is instructive: “The doctrine of paramountcy holds that, where there are inconsistent or conflicting validly enacted federal and provincial laws, the federal law prevails. Paramountcy renders the provincial law inoperative to the extent of the inconsistency or conflict.”
The NEB upheld paramountcy in this case, meaning that whatever regulations regarding dilbit that the Horgan Government might concoct would be “inoperative” under the Canadian Constitution.
What is Horgan up to? Notley was pretty clear on that point: “The action announced today by the B.C. government can only be seen for what it is: political game-playing.”
Both BC and the municipalities clearly hope to drag issue after issue, bylaw after bylaw, regulation after regulation, before the NEB’s cumbersome review process, which can take months to issue a ruling.
Kinder Morgan hasn’t helped itself.
In a Dec. 4, 2017 press release the company announced that if TMX continues to be “faced with unreasonable regulatory risks due to a lack of clear processes to secure necessary permits . . . it may become untenable for Trans Mountain’s shareholders . . . to proceed.”
Talk about waving a red flag in front of Horgan and Burnaby Mayor Derek Corrigan, an implacable foe of the pipeline.
The company virtually guaranteed that there would be an endless parade of “frustrations to the federal purpose,” as the NEB so quaintly describes it.
Let’s admit the bald truth of the matter: BC and Burnaby – and eventually Vancouver and who knows how many other lower mainland municipalities – are determined to obstruct the project.
Corrigan denies operating in bad faith, but clearly is. And today’s announcement demonstrates that the BC government is doing the same.
The NEB is of the view that the “operational conflict” between the parties can somehow be resolved. That hope is naive at best and should be abandoned.
The Prime Minister must instruct the NEB to take over all permitting and regulating of the Trans Mountain Expansion project, to ignore any attempts by BC or municipalities to interfere, and to enforce the national energy regulator’s decisions with the power of the RCMP – and even the military if necessary.
Jim Carr, natural resources minister responsible for the NEB, has already threatened as much in late 2016. The Winnipeg MP later apologized for going too far by mentioning the military, but it’s not a stretch to assume that the minister was echoing an opinion already expressed around the Liberal cabinet table.
Too much is at stake for Trudeau to back down now.
One province cannot stop another province from exporting its products to market. BC is outraged that President Donald Trump slapped a tariff on its softwood lumber exports to the United States, yet it is trying to do the same to Alberta by other means.
The hypocrisy is galling.
And let’s not forget that oil and gas exports dominate Canadian trade with the United States, dwarfing even Ontario’s auto industry.
Can Trudeau afford hobble the economic engine of the Canadian economy?
Can his government afford to forgo the tax revenue that would entail?
And can Canada afford to send the message to investors that its national decisions can be frustrated by an obstreperous province?
It’s time for Trudeau to get tough with Horgan.