Federal leaders needs to assert clear federal authority on getting pipelines built in the national interest, write Dwight Newman and Joseph Quesnel.

By Dwight Newman and Joseph Quesnel, October 11, 2019

It is constructive that some of the federal party candidates out campaigning are addressing Canada’s pipeline capacity problem. But many of them are not adequately dealing with the critical need for federal leadership, especially in the challenging interaction with some provinces.

Conservative Leader Andrew Scheer has stated that, if elected, he would use the powers of the federal government to expedite pipeline project approvals. Scheer said he would “fast track” federal-provincial jurisdictional questions on pipelines right to the Supreme Court of Canada. This is indeed one way to assert federal authority. Scheer's proposal rests on an ability of the federal government to send what is known as a “reference case” to the Supreme Court.

Under that reference power, the federal government can send one or more important legal questions for resolution by the highest court. Although not technically legally binding, a reference decision carries much weight.

Obviously, it is also very important to carry out legally mandated meaningful consultation with Indigenous communities whose rights could be affected by a pipeline project. Recent decisions from Justice Stratas of the Federal Court of Appeal have allowed some further consultation cases to be considered on Trans Mountain, but with a clear focus on these cases now being argued and decided promptly. Even the courts are starting to recognize the problems of ongoing delay.

Although legal clarity is very important, the federal government could also act more immediately without any necessary guidance from the Supreme Court on the federal-provincial jurisdictional issues. Research in recent years by the Macdonald-Laurier Institute indicated that the federal Parliament can insulate interprovincial pipelines from delay by passing legislation to better facilitate pipeline construction as well as to protect the construction activity from attempted sabotage.

Courts have already repeatedly upheld the federal government’s sole power to build and regulate interprovincial pipelines. When designing Canada’s division of powers, the drafters of our constitutional framework, by deliberate design, wanted the federal government to have power over national infrastructure projects, with the trans-Canada railway being one historic example. In the 1950s, the Supreme Court ruled that pipelines counted as interprovincial transportation and were in exclusive federal jurisdiction. Courts have also reinforced this finding by overruling local bylaws and regulations that sought to interfere with pipelines, as in the case of the city of Burnaby, British Columbia.

The bigger problem is that the federal government has been historically reluctant to take on the provinces in this area of clear federal jurisdiction (even while being ready to overstep in some other areas that belong exclusively to the provinces!). In the case of recent pipeline projects originating in Alberta, the provinces of British Columbia and Quebec have been the most resistant. Ottawa has been reluctant to intervene and boldly assert federal power. Ottawa acted as a bystander while Alberta and British Columbia engaged in a war of words and a literal trade war over approving certain pipeline projects.

Concerns about loss of political support in certain provinces often drive this reluctance. For example, one independent Alberta senator introduced Bill S-245, legislation aiming to double down on authorizing federal action on Trans Mountain by invoking an additional federal power, called “declaratory power,” to declare the project to be in the national interest. However, after this bill passed through the Senate, the Liberal majority in the House of Commons killed it.

Something like Bill S-245 should not, strictly speaking, be necessary. The federal government already has clear jurisdiction over interprovincial pipelines, and the existing federal approval should have been enough. But such a bill would be an additional marker of commitment to the project, deemed to be in the national interest, and such a bill could also contain additional content to directly facilitate construction.

Some federal politicians have gone even further in seeming to give up the federal government’s proper role by suggesting that provinces should be able to effectively veto national infrastructure projects if consensus is not achieved. NDP Leader Jagmeet Singh told the media recently that he would not impose a pipeline project on any province. In the TVA French-language debate, he repeated that vow and neither Scheer nor Trudeau challenged him on it.

There is a major problem when retail politics overcomes good policy. Even while deferring to provinces in areas of clear provincial jurisdiction, federal leaders must be ready to defend federal jurisdiction in those areas where it clearly exists. Pandering for political support in some provinces where there are battleground seats may be clever politics, but we need federal leaders to show national leadership. While some are doing better than others, there is room for all parties to show more leadership in asserting the clear federal jurisdiction on infrastructure that is important to Canada’s future.

Dwight Newman, QC, is a professor of law at the University of Saskatchewan and a Munk Senior Fellow at the Macdonald-Laurier Institute (MLI). Joseph Quesnel is program manager of the MLI’s Aboriginal Canada and the Natural Resource Economy (ACNRE) project.

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