Analysis: How The Feds Can Win The Pipeline War

The pipeline war between Alberta and British Columbia is getting hot, and it will get a lot hotter in the next few years if Prime Minister Justin Trudeau pushes through expansion of Kinder Morgan Canada’s Trans Mountain pipeline. The legal and regulatory challenges B.C.’s New Democratic Party (NDP)-Green Party government is throwing up against Trans Mountain expansion (TMX) is only the first round of defence, and a relatively weak one at that.

The second round of defence against TMX, non-violent protests, which organizers have suggested will make the 1993 War in the Woods at Vancouver Island’s Clayoquot Sound look like a picnic in the park, should be of far greater concern. If the federal government is to protect its turf and push TMX through in a timely fashion, Justin Trudeau is going to have to get his hands dirty and prove himself to be his father’s son — think October Crisis and “Just watch me.”

The B.C. government’s latest effort to sabotage Kinder Morgan Canada’s TMX project, through yet another environmental review, and the Alberta government’s swift and forceful response is forcing the Feds’ hand. On the election trail last year, B.C. Premier John Horgan said his NDP would use “all the tools in the tool box” to block the TMX, despite the province’s previous Liberal government sanctioning the project with an environmental certificate in January 2017.

The tools in the box have proven less plentiful than the B.C. NDP first thought — given that an appearance of partiality on regulatory decisions and permits could open the government to legal action from Kinder Morgan — but this has not stopped B.C.’s coalition government, and even more so the City of Burnaby, to do what it can to kill TMX through a thousand delays.

In August 2017, the B.C. government was granted intervener status in a legal challenge seeking to overturn the National Energy Board’s (NEB) approval of the TMX project —  19 separate cases from First Nations and environmental groups were rolled into one in March of last year. On January 30, B.C. Environment Minister George Heyman, in the context of a second phase of oil spill regulations, proposed a ban on additional diluted bitumen being transported through the province until the potential impact of a dilbit spill on land or sea is better understood through extensive consultation.

In response, on January 31, Alberta Premier Rachel Notley said: “The government of Alberta will not, we cannot, let this unconstitutional attack on jobs and working people stand. Just because the B.C. government, in coalition with the Green Party, doesn’t like the decision (by Ottawa to approve Trans Mountain) gives them absolutely no right to ignore the law or … change the rules at half-time based on a whim.” The next day, Notley fired the second volley in the budding interprovincial trade war, when she suspended negotiations to import additional electric power from B.C. — Alberta has since banned the importation of B.C.-produced wines into the province.

On February 1, Trudeau joined the fray when he unequivocally supported Notley’s position regarding the proposed bitumen ban and TMX project. "We're just going to reiterate that the decision we made was in the national interest and we're going to move forward with that decision, which means we're going to get the Trans Mountain pipeline built,” Trudeau said.

In terms of potential retaliation by the Feds, on February 2, Trudeau suggested that the TMX project and two environmental projects coveted by the B.C. government — a national, minimum price on carbon to combat climate change and the $1.5 billion Ocean Protection Plan — were part of a package deal. "The only way we can get any of those things is if we do all three of those things together," Trudeau said. "As I've said for a long time, we need to make sure we're both protecting the environment and growing the economy at the same time."

And to be blunt, the Federal government holds all the important legal cards in the pipeline war with B.C. Under the constitutional principle of “paramountcy,” when federal and provincial jurisdictions overlap or conflict, Canada trumps a province. This principle has allowed the Federal government to put the national interest ahead of parochial provincial interests throughout Canadian history. In addition, Canada has exclusive jurisdiction over interprovincial pipelines such as Trans Mountain.

It is likely that B.C. Premier Horgan understands his poor legal hand, and this may account for his government’s decision to not raise the ante in its trade war with Alberta. At a news conference on February 7, Horgan said he would not impose counter measures at the present time, and suggested B.C. would not react if Alberta was to also ban B.C.-produced beer or other products. Horgan appears to be attempting to defuse the conflict, the core of which is the proposed bitumen ban. Meetings are being held and he said he would like a resolution.

Since it is only a matter of time before the B.C. government loses its battle against TMX, it would be prudent for the federal government to begin preparing for the second round of the pipeline war. In particular, the Feds should determine the potential scale and likely tactics of the civil disobedience movement against TMX, how best to defeat the movement as quickly and humanely as possible, and act accordingly.

The anti-TMX movement is made up of a wide range of people, including Aboriginals, environmentalists, community activists and even politicians — for example, Burnaby Mayor Derek Corrigan and leader of the national Green Party Elizabeth May — many of whom have said they will resort to civil disobedience to stop construction of the expanded pipeline. The movement has coalesced under umbrella groups such as For the Coast and The Treaty Alliance Against Tar Sands.

In an interview with CBC on February 5, Burnaby South MP Kennedy Stewart said he would stand by his constituents in opposition to TMX and that “many thousands of British Columbians are willing to engage in civil disobedience to stop this pipeline.” Prior to an anti-TMX march in mid-November 2016, two weeks before the federal government announced its approval of the pipeline, Vancouver Mayor Gregor Robertson said “I would expect it will be ugly” if the Feds approve the project.

As a rule, civil disobedience movements grow over time and become more virulent, until they get what they are fighting for — for example, War in the Woods —  or are violently crushed — for example, the No Dakota Access Pipeline movement at Standing Rock. If Justin Trudeau wants to keep the second round of the pipeline war from getting ugly, but still protect federal jurisdiction and push TMX to completion, he would be wise to take a page out of his father’s book and resort to a preponderant show of force from the start.

Pierre Trudeau quickly crushed the Quebec Liberation Front (FLQ) by evoking the War Measures Act in October 1969. As the anti-TMX movement is billed as non-violent, evoking the Emergencies Act — the modern day equivalent of the War Measures Act — would be overkill. Rather, Justin Trudeau should be sure to have a massive, well-trained police force on the ground when the anti-TMX protests begin in earnest, and make it perfectly clear that Canadian courts will deal harshly with protestors who break the law.

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