Hébert: Would PM go ‘nuclear’ to build a pipeline?

The British Columbia legislature that has resulted from last week’s election is, for now, evenly split between pipeline partisans and opponents. Hopes – in the pro-pipeline camp – that the balance will shift in its favour once all the votes are counted this month should be tempered by the notion that a razor-thin majority is not synonymous with legitimacy.

In the popular vote, there is no standoff between the pipeline-friendly Liberals and the New Democrats and Greens who sit on the other side of the divide. Last Tuesday, 60 per cent of B.C. voters supported parties that oppose the current plan to bring more bitumen oil to the Pacific coast via an expanded Trans Mountain pipeline.

The Kinder Morgan project was hardly the only issue on the ballot. But if there are voters who backed a party notwithstanding its stance on pipelines, those are, on balance, more likely to be found among supporters of the Liberals than in the Green or NDP constituencies.

This was the second time in as many elections that a pro-pipeline party took losses in B.C. in general and at the ground zero of the Trans Mountain debate that is the province’s largest metropolitan area.

The last federal election resulted in the Conservatives’ worst B.C. showing in three decades. Stephen Harper’s party went from 45 per cent of the vote in 2011 to 30 per cent in 2015. It lost 11 seats and shed 150,000 B.C. supporters. At a minimum, the latest election results will embolden opponents of Kinder Morgan’s plan and curtail the capacity of its proponents in Victoria to promote it.

Prime Minister Justin Trudeau gave the project his blessing last fall. Now, when it comes to making a case for it in B.C., he is essentially on his own.

On Friday, Natural Resources Minister Jim Carr maintained that the federal government’s support for the Trans Mountain project remained unwavering. He made that statement in Calgary, where post-election concerns about the future of the plan are rampant.

Technically, the fate of Kinder Morgan’s plan did not hang in the balance of the B.C. vote, for no provincial government has a veto on interprovincial pipelines. In practice though, the provinces do have control over many of the attending infrastructures that are essential to the completion of such projects. They also have the means to channel their opposition through legal challenges.

In Ontario in the 1970s, Bill Davis’s Tory government killed federal plans to locate a new international airport in Pickering by refusing to build the roads and the sewer system the new facilities would have required.

The larger question in light of the B.C. vote, but also of simmering opposition in Quebec and in parts of Ontario to TransCanada’s plan to connect Alberta to the Atlantic Coast via the Energy East pipeline, is whether the notion of securing a so-called social licence for such projects is a pipe dream and, if so, whether there is anything Trudeau can do about it.

On that score, some pro-pipeline advocates are urging the prime minister to use the declaratory power vested in the federal government to override any obstruction to Canada’s goal of getting more bitumen oil to tidewater via pipelines.

The Constitution allows Parliament to declare a work to be for “the general advantage of Canada” and to take control over all physical installations necessary to construct and maintain it.

The declaratory power was used 470 times in Canada’s history, mostly but not exclusively to facilitate the building of the railway. But more than half-a-century has elapsed since it was last invoked, in 1961.

Even the most hardened pro-pipeline proponent would have to concede that over that period there has been a sea change in judicial and societal attitudes to environmental considerations and indigenous rights.

The federal declaratory power happens to never have been used since Quebec’s Quiet Revolution. There is more than a coincidence at play here.

No past or present party in the National Assembly would support a federal government in such an endeavour.

In political terms, dusting off the declaratory power to force a pipeline through B.C. and eventually through Quebec if, and when, the Energy East pipeline secures regulatory approval is the nuclear option.

It could be done, but not without litigation and almost certainly not without triggering a constitutional crisis.

Chantal Hebert is a national affairs writer.

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