BC Pipeline Challenge -Strong Federal Leadership Required Now
The next several weeks will be very important for Canada .
Two political parties that are likely to form the Government of the province have committed in writing to use every means at their disposal once in Government to stop the expansion of the Kinder Morgan Pipeline. This project involves the twinning of an existing pipeline from Edmonton , Alberta to Burnaby , British Columbia . This project has gone through the necessary National Energy Board process and was approved . With the election of a new Government in Ottawa the project was put through an additional process and approval provided again.
The construction and operation of inter- provincial pipelines comes under Federal Jurisdction according to the Constitution of Canada.
Section 91(2) provides the Federal Government with powers over Trade and Commerce and Section 91(10) power over Navigation and Shipping . And this Project involves Trade and Commerce and Navigation and Shipping.
And more particularly in the Constitution Under Provincial Powers Section 92(10) , there are exceptions where Provincial Power does not apply:
Local Works and Undertakings other than such as are of the following Classes:
Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:
Lines of Steam Ships between the Province and any British or Foreign Country:
Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
Clearly, then, the Trans Mountain Pipeline extension comes under Federal Jurisdiction .
The Prime Minister of this Country must not just mouth that this project is under Federal Jurisdiction but loudly proclaim it . He needs to initiate a full court press to make it clear to British Columbia that this is a project that is in the national Interest and that it must and will proceed and that the Province should cease and desist from any action injurious to the project.
This is important in its own right but it also very important for the future . We all know about precedents and how in later day jurisprudence , courts are looking more and more to what has happened recently to guide them in interpretation of laws and the Constitution. Many judges these days are not originalists in their interpretation of the Constitution but view the Constitution as a living, evolving document . This is very true here in Canada, with this view seeming to be the dominant one.
Therefore , the stance of the federal Government on this Trans Mountain Project could have a bearing on future inter Provincial pipelines and other such undertakings . If the Federal Government is weak or vacillates on this project , it would embolden opponents of such future projects , including other provinces , and render the nation trapped in local , regional disputes that would weaken the very foundation of our federation. It could make Court Interpretation of any challenges ambiguous and hinder efficient and timely execution of future projects, something that this country does not need in an every competitive world.
I am sure the Prime Minister could easily involve many Premiers , Alberta and Saskatchewan come readily to mind, and many National Organizations ,Business leaders and Academics to support a vigorous acclamation of the validity of Federal Jurisdiction on this particular project , and further support the Trans Mountain Project as being in the national interest and oppose unconstitutional measures by British Columbia to stop it.
This should be the Prime Minister’s top priority right now.