Since early April, the concerns over the fate of the expansion of Kinder Morgan’s Trans Mountain pipeline in the face of the British Columbia government’s objections have been elevated to the level of a constitutional and political crisis, driven by an artificial deadline set by the pipeline’s Houston-based owner. The hyperbole about how the fate of this single project will somehow damage Canada’s reputation for political stability and as a safe location for investment is becoming potentially more damaging to Canada’s reputation than the fate of the pipeline itself. The situation begs questions about how real the crisis is, and how much the country is being drawn into an elaborate exercise in political theatre in the run-up to the 2019 Alberta election.

If Alberta and the federal government really want to moderate the BC government’s opposition to the pipeline project, their current strategy of attempting to bludgeon it into a humiliating and politically suicidal retreat must constitute the worst approach imaginable. The louder Alberta Premier Rachel Notley, Alberta PC Leader Jason Kenney and federal ministers Jim Carr and Bill Morneau whinge on about the injustices of BC’s position, the harder it becomes for BC Premier John Horgan to entertain any form of compromise.

BC’s position is far from unjustified. The pipeline expansion was approved on the basis of a review process established by Stephen Harper’s Conservative government, a process that the federal Liberals’ 2015 platform described as deeply lacking in credibility and public trust. The Liberals’ 2015 electoral gains in BC, particularly in the Lower Mainland, rested in no small part on commitments to reform the process. Those commitments remain far from fulfilled.

Legitimate questions continue to be raised about the risks and impacts of bitumen spills, obtaining the consent of affected Indigenous communities and the effects of pipeline and oil sands growth on Canada’s ability to meet its emissions targets under the 2015 Paris climate accord. The pipeline offers nothing to BC in terms of energy security, and little in economic development beyond temporary construction jobs. The steady stream of protesters, Indigenous and non-Indigenous, is no surprise in this context. Their presence is likely to grow as pressures on the BC government increase.

It is also important not to forget that while the Northern Gateway pipeline was rejected by the federal government and the Energy East pipeline project was (sensibly) abandoned by its proponent, Alberta has seen several major pipeline victories in the past few years: the reversal of Enbridge’s Line 9 to carry bitumen through Ontario and Quebec; the Enbridge Line 3 expansion through Manitoba to the US; and President Donald Trump’s stated support for the Keystone XL pipeline to the Gulf Coast of the United States. In the context of these changed circumstances, there are serious questions about whether the Kinder Morgan expansion is needed at all.

The situation presents the Trudeau government with some profound legal and political challenges. The legal and constitutional situation around the project may be far more complex than some observers have suggested. As Jason MacLean of the University of Saskatchewan has emphasized, recent jurisprudence on the scope of federal and provincial authority around environmental matters has stressed the sharing of jurisdiction and the importance of federal-provincial cooperation.

BURNABY, BC – Federal Green Party Leader Elizabeth May is arrested by RCMP officers after joining protesters outside Kinder Morgan’s facility on March 23, 2018. THE CANADIAN PRESS/Darryl Dyck.

At the end of the day, the federal government does have the formal, legal constitutional authority to override provincial objections to any undertaking, specifically through the declaratory power provided in section 92(10)(c) of the Constitution Act. However, that power has not been exercised in relation to a new matter in more than half a century. The political consequences of such a direct assertion of federal authority in relation to a project that is not vital to national security, and to which a provincial government has expressed its direct opposition, would be profound, not only in BC but across the country.

As the Toronto Star’s Chantal HĂ©bert and others have pointed out, such a brutal expression of federal power would be an enormous gift to the flailing sovereignist movement in Quebec. In BC itself, it could dim the electoral prospects of the federal Liberal Party for decades.

Nor would even an exercise of the federal declaratory power override the constitutional rights of the affected Indigenous people and communities to meaningful and substantive consultation, and accommodation of their interests.

There are no easy ways out of the current situation in the short term. Not panicking over Kinder Morgan’s May 31 deadline would be a good place to start. If investors believe the project will be profitable, they are likely to be there if and when it proceeds. A resolution that has some prospect of being seen as legitimate in the eyes of the various actors in the process, federal, provincial, Indigenous and community-based, will require a more patient game.

In the meantime, the federal government needs to admit, as its 2015 election platform already did, that the approval process around the project was deeply flawed and needs to be revised to address the issues being raised by BC and by the affected communities and First Nations. The federal government also must address the fundamental contradictions between approving infrastructure that facilitates the expansion of oil sands production — by far the most significant source of growth in industrial greenhouse gas emissions in Canada — and its international commitments to reduce Canada’s GHG emissions.

Alberta, for its part, has to face the reality that the expansion of exports of raw bitumen is a losing and increasingly nonviable proposition. Legal, political and economic landscapes have changed, particularly in terms of the rights and jurisdiction of affected Indigenous communities; the unwillingness of host communities to bear risks in relation to which they see little benefit; and the longer-term move toward a carbon-constrained world. The province needs to focus on upgrading its bitumen output to lighter, higher-value and lower-risk synthetic oil products and developing a longer-term transitional strategy to reduce its reliance on raw fossil fuel exports.

Finally, BC must deal with its own contradictions between the province’s climate change strategy and its pursuit of carbon-intense liquefied natural gas (LNG) exports.

None of the parties to the Kinder Morgan dispute come to the conversation with clean hands, but the current hysteria over the project has the potential to do more damage to Canada’s economic and environmental interests than the actual fate of the pipeline itself. A calmer and more mature debate is needed on all sides.

Photo: OTTAWA – Prime Minister Justin Trudeau speaks before a meeting on the deadlock over Kinder Morgan’s Trans Mountain pipeline expansion with BC Premier John Horgan and Alberta Premier Rachel Notley, in his office on Parliament Hill on April 15, 2018. THE CANADIAN PRESS/Justin Tang.

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Mark Winfield
Mark Winfield is a professor of environmental and urban change at York University, and co-chair of the faculty’s Sustainable Energy Initiative.

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