In the end, it shouldn’t really have come as a surprise to see the Supreme Court of Canada so swiftly and thoroughly reject the B.C. government’s arguments about regulating the flow of bitumen through the Trans Mountain pipeline expansion (TMX).
After all, the B.C. Court of Appeal was unanimous and unequivocal in rejecting those same arguments. It would be highly unusual for such a resounding verdict to be viewed differently by the Supreme Court of Canada, especially given the rather straightforward constitutional principles at play here.
So while the high court’s decision may have been predictable, it was necessary and welcome nonetheless. While the debate around pipelines can be divisive, the Supreme Court’s decision is unifying in one important sense: it is a reminder that we are a federation and that a national interest can still exist and still triumph.
To that end, it may help quell the separatist sentiment — or at least the more general sense of Confederation cynicism — that has started to take hold in Alberta and Saskatchewan. The notion that Canada is broken has found a rather receptive audience in those two provinces; this Supreme Court decision is a fairly convincing rejoinder to that.
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More specifically, it should hopefully convince Alberta to back away from its so-called “turn off the taps” legislation; a law aimed at punishing B.C.’s obstructionism by cutting off energy shipments to their western neighbor. This, too, is likely constitutionally problematic and such conflict amongst provinces is not helpful in maintaining a cohesive confederation, to say the least. When we can rely on the rule of law, retaliation is unnecessary.
That TMX could clear room for more refined fuels to be shipped from Alberta to B.C., thus helping to ease some of the gasoline shortages — and associated higher prices — that B.C. has endured is an example of how we can start to view these projects as a win-win, as opposed to a source for internecine Canadian conflict.
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This decision obviously doesn’t guarantee that TMX will be completed, and there are still some remaining matters to be cleared. But this removes one potential roadblock and reaffirms the exclusive federal jurisdiction over such matters, which is important not just for TMX, but for any future project that would fall under this same federal jurisdiction and the necessary certainty that should accompany a cabinet approval.
As the courts have noted, in this instance, it’s a specific product (bitumen) being transported in a specific manner (through a pipeline). But if we’re to accept the notion that B.C. has jurisdiction here, then it would open up the door to other provinces asserting jurisdiction and being able to restrict or ban other products being transported through other means. This would severely erode the very premise of Canada.
TMX has gone through a rigorous review process, has received federal approval (with literally hundreds of conditions imposed), has the support of a majority of Canadians and has the support of (and partnerships with) many of the First Nations communities along its route. Furthermore, there is the very real prospect of a meaningful Indigenous ownership stake in the project. On top of that, of course, is the compelling economic case for the project. In other words, there’s really no reason why TMX should not proceed.
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Not only have the courts exposed just how empty John Horgan’s so-called “toolbox” was when it came to stopping TMX, but perhaps the B.C. premier has subsequently gained a better appreciation for the important issues highlighted by their legal humiliation. On a separate pipeline debate — that over the Coastal GasLink pipeline and the $40-billion LNG Canada project — Horgan is a big believer in the power of federal jurisdiction, federal approval, public support, First Nations support, and, of course, economic development.
Ultimately, though, the only thing the Supreme Court of Canada was concerned with was the constitutional question, and it was about as close to a slam dunk as we’re likely to see. Nonetheless, though, the court’s clarity is most welcome and most helpful.
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