In the messy aftermath of the B.C. election, everyone is talking about the coming confrontation over Kinder Morgan’s Trans Mountain pipeline. Given federal approval just last November — Justin Trudeau travelling to the province to confer his benediction, in unusually personal terms — the project suddenly must contend, not with Christy Clark’s pipeline-supporting Liberals, but a probable minority government that, Liberal or NDP, is propped up by the pipeline-hating Greens.
Just getting the pipeline approved was no small feat in itself: before cabinet signed off, there were years of hearings before the National Energy Board, whose endorsement came with 157 conditions attached. But regulatory and cabinet approval are in today’s Canada only the start. There must first be an appeal of the NEB’s ruling, to be heard this fall in Federal Court, which is fair enough. But opponents of Trans Mountain have made clear they will be no more deterred by a court decision in its favour than they were by the opinions of either the regulator or the duly elected government of the land.
Until now, that had presented lawful authority with the challenge of ensuring construction can proceed in the face of widely advertised attempts by opponents to stop it by physical force. Now the pipeline may also have to overcome the opposition of the provincial government.
To be perfectly clear, the province’s approval is not legally required: pipelines are unambiguously federal jurisdiction. Still, there are plenty of ways a determined provincial government could make trouble, for example by denying permits for supporting infrastructure like roads.
So the first faint rumblings are being heard in Ottawa of an unfamiliar sound: the federal declaratory power being wheeled out of the garage. Under Sect. 92 (10 c) of the Constitution, Parliament has the power to declare any “work” to be “for the general Advantage of Canada,” acquiring in the process whatever legislative authority it needs to get it built — and overriding the provinces’.