Alberta Premier Rachel Notley, centre, with members of Market Access Task Force

Action – not bland reassurances as in the past – and competence needed from Trudeau going forward

A fire has been lit under Justin Trudeau to resolve the crisis over Trans Mountain Expansion, Rachel Notley told reporters yesterday. But the Premier turned down the heat a bit, citing federal urgency on the file, after her meeting Wednesday with the Prime Minister.  That may be a mistake. Fear of active opposition to the national climate plan may be just what’s needed to keep Ottawa focused on the task at hand.

A frantic search has begun – one that apparently includes a growing army of public and private sector lawyers – to find a solution to the Trans Mountain Expansion conundrum, one that enables construction to resume as soon as possible but still respects the Constitution and indigenous communities.

Prime Minister Justin Trudeau listens as Alberta Premier Rachel Notley talks to reporters Sept. 6, 2018.

A tall order, but the Alberta Premier is cautiously optimistic solutions will be found.

“What we are pleased with is that there are a lot of officials that are on this file and we’re getting increasing levels of responsiveness from people in Ottawa about it. And I do believe that the federal government is seized of this matter, they understand its urgency,” she told reporters.

“Our folks are working with them diligently. We’ve been brainstorming solutions, we’ve already taken the time and talked to them about several solutions that we are already in the process of developing.”

The August 30 decision by the Federal Court of Appeal quashed the project’s cabinet approval on two points: the National Energy Board’s refusal to consider the environmental impacts of marine shipping and inadequate consultation with affected British Columbia indigenous communities.

The Prime Minister met with Notley in Edmonton Wednesday and tried to put a brave face on the situation, which is pretty tough when you’ve just bought a pipeline project that, along with most of Kinder Morgan Canada’s other assets, cost taxpayers $4.5 billion, and construction comes to a dead halt just as it was ramping up.

“Albertans were disappointed, as were many Canadians, with the decision. It was a hard blow to a province that has come through a difficult time,” said Trudeau told reporters, according to the Edmonton Journal.

“This really hit hard.”

No kidding.

But Trudeau and his government haven’t yet felt the full measure of political pain commensurate with their seeming screw up on the pipeline file.

Anger in Alberta is focused on the court (micro-managing judges ignoring the broader national interest) and the process (no amount of consultation will change a thing).

That anger is misplaced.

The culprit in this farce is Trudeau, Jim Carr (natural resources minister when Trans Mountain Expansion was approved), and the senior advisors and bureaucrats who decided federal efforts were sufficient to withstand the inevitable challenge to approvals from the National Energy Board, and the Governor In Council (the federal cabinet).

Did Carr receive legal advice that the NEB’s refusal to consider the impact of more oil tankers off the West Coast wouldn’t stand up to scrutiny?

If he did and followed the advice, then a lawyer or two in the department should be hauled onto the carpet.

If Carr didn’t ask for a legal briefing or ignored the advice he was given, then the fault lies with the Minister (who has since moved on and been replaced with Edmonton MP Amarjeet Sohi) and ultimately the Prime Minister.

Energi News has asked the department for an answer to those questions and will report when we receive an answer.

As for the botched indigenous consultations, in 2016 the Liberals were fresh off the Federal Court of Appeal overturning the Stephen Harper government’s approval of the Northern Gateway project.

With that experience staring them in the face, how did Ottawa manage to screw up a proper assessment of consultation undertaken for the Kinder Morgan pipeline?

“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,” Prof. Dwight Newman of the University of Saskatchewan law school told Ian Burn of The Lawyer’s Daily.

“Maybe [the government] can make the argument they didn’t know what was actually expected of them, but from a government that would purport to be going above and beyond [on Indigenous issues] it’s very surprising that they failed to meet the minimum legal requirements.”

No kidding.

Notley and Phillips met with the Market Access Task Force (created earlier this year to advise Alberta on its disputes with BC over the pipeline) and oil and gas leaders Thursday, taking advice and reassuring a beleagured industry that her government is applying maximum pressure on Ottawa.

At a subsequent press conference, she stopped short of putting all the blame on the Trudeau Liberals, but said she had been told a plan would be in place in weeks, not months, to move the project forward.

“I am focused on one goal. To establish a clear and reliable timeline to resume construction of the Trans Mountain [Expansion] pipeline,” she said.

The timeline must include fulfilling constitutional requirements for “a very robust and meaningful back and forth with open-minded efforts to accommodate,” indigenous concerns, she added. 

As for the marine shipping issue, if Alberta has its way the timeline will include amending the National Energy Board Act, according to Notley.

The issue with respect to the NEB certificate is a little bit more complicated,” she said.

“Because it’s not tied to the Constitution, it’s tied to a statute which is under the appropriate authority of the federal government, also is one which the federal government has the authority to fix in a more timely way and that is what we’re working on with them right now.”

Amending the NEB Act to move along the Trans Mountain Expansion project was always an option for the Trudeau Government. The national regulator (which is also a superior court) has all the authority needed to resolve the jursidictional conflicts with the BC and municipal government.

The Liberals presumably decided against that option because they had campaigned on the promise to “reform” a broken process and a supposedly captured regulator, charges levelled by First Nations and environmental groups.

If Trudeau decides to change the act, he will have to stickhandle some delicate politics with those groups heading into an election a year from now.

And that argues for an abundance of caution, not the bold and decisive action Notley expects.

As Energi News argued during the Great Wine War with BC this past spring, Notley has no constitutional authority to excerise in this dispute, so her best strategy is to maintain public pressure on the government that does, which is Canada.

That advice made sense then and it makes more sense now given the urgency of getting Trans Mountain Expansion back on track.

Notley stressed that Alberta is working “in good faith” with Ottawa to find solutions and she’s not prepared to issue threats or ultimatums at the moment.

Fair enough.

But she should make it abundantly clear, if she hasn’t already, that threats and ultimatums aplenty will be forthcoming if Trudeau doesn’t find solutions posthaste.

Last week she withdrew support for the Prime Minister’s cherished national climate plan, in itself a significant blow to the Liberal government.

Her next step, if needed, should be to very publicly and pointedly criticize specific components of that plan, such as the Clean Fuel Standard regulations – bitterly opposed by the Alberta-based oil and gas sector – already being drafted in Ottawa.

Notley has the weapons to politically wound Trudeau. The Prime Minister has to understand that she isn’t afraid to wield them.

A little fear goes a long way.