How to push a pipeline through by cherry-picking the Constitution

When does the federal government have a right to override the laws of provinces and local communities?

It's a question Canada's national energy regulator appears to have answered on Dec. 7 by allowing Kinder Morgan, a foreign-owned oil pipeline company, to bypass municipal bylaws in Burnaby, B.C. to expedite the construction of its embattled oilsands pipeline from Alberta.

Kinder Morgan had asked the National Energy Board (NEB) to step into the conflict on constitutional grounds after failing to obtain municipal permits, arguing that the pipeline is in the national interest (something the federal government has reiterated countless times).

The NEB has yet to make its rationale public. But one possible, even likely, legal reason is the constitutional doctrine of "federal paramountcy" — that in conflicts of federal and provincial or local law (such as this one), federal legislation supersedes municipal bylaws. In this case, federal paramountcy gives deference to Kinder Morgan.

If this isn’t giving you the proverbial “willies” yet, it will. Here’s why:

The NEB has a mandate to be impartial. Yet, by invoking federal paramountcy, the NEB would be choosing to value constitutional principles that benefit oil and gas companies rather than those that apply to provincial rights and community concerns (sections 92A of the Constitution). In fact, the NEB has sided with Kinder Morgan on a shocking 80 per cent of motions.

NEB mandate includes safety

On the heels of Alberta Premier Rachel Notley’s pro-pipeline tour, consider the speed with which the NEB sided with the company on its latest complaint: it took a mere week and a half to come to a decision after the hearings began, compared to the months citizens and stakeholders have had to wait for responses (not to mention those that are yet to be heard). It’s the fastest the NEB has dealt with an issue in recent memory.

Meanwhile, several First Nations are arguing legal cases against the NEB’s pipeline approval process on grounds of inadequate consultation with Indigenous communities. Aboriginal and treaty rights are enshrined in section 35 of the Constitution and the NEB is required to respect them.

So, if indeed federal paramountcy and national interest are driving the NEB’s decisions, the regulator would be respecting the Constitution at the expense of... well, the Constitution.

Cherry-picking much?

To regain public trust, the NEB must take action to prove it does not exist merely to rubber stamp corporate complaints and renege on conditions designed to safeguard the best interest of Canadians. Remember: safety is in its mandate.

Instead of protecting vital parts of the Constitution like provincial rights or Aboriginal rights and title, Prime Minister Justin Trudeau is markedly absent from recent discussions.

Whether he’s relying on his ministers, premiers or the NEB to deliver his message, one thing is sure: crying national interest under the Constitution while ignoring other national interest imperatives, such as the safety of Canada’s marine environment (as the BC NDP have argued), puts decision makers in a difficult spot.

Some legal scholars suggest that the widely-held notion that provinces cannot “frustrate” the federal government’s mandate to green-light this pipeline can be challenged.

No recipe for reconciliation

No matter how deft Trudeau’s politicking and no matter how earnest his Facebook posts, pipelines won’t build national unity any more than they’ll build windmills.

If anything, this pipeline puts the government at cross purposes with its goal of nationwide reconciliation with Indigenous Peoples, making it even more difficult to argue that the Trans Mountain expansion is in the national interest.

In its blundering approach to pushing this pipeline through, federal authorities at all levels should expect more appeals, more acts of resistance, and more delays.

Playing fast and loose with the Constitution to prop up an oil industry the world is leaving behind is no way to build this country’s future.

Allowing municipal laws to be so prematurely tossed aside mid-process — while affording pipeline companies more enthusiastic protection than Aboriginal constitutional rights — is no recipe for building trust, reconciliation and unity among nations.

Decisions about national interest should be carefully, not hastily, deliberated — and with considerably more concern for the rights of people and communities, not corporations, protected under the Constitution and other laws.

Jessica Wilson leads Greenpeace Canada’s Climate & Oil campaign.