Wet snow falls as protesters demonstrate against the Enbridge Northern Gateway Pipeline in Vancouver, B.C., on Monday January 14, 2013. THE CANADIAN PRESS/Darryl Dyck

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Is the Harper government sitting on a plan to use a constitutional weapon to push through the Northern Gateway pipeline — over the opposition of the British Columbia government and in defiance of the First Nation duty-to-consult?

Some legal supporters of the pipeline in Alberta are arguing that the Northern Gateway project would constitute a single interprovincial work or undertaking, and so would come under the exclusive jurisdiction of the federal government under sections 91(29) and 92(10)a of the Constitution Act 1867.

This suggests a possible legal strategy for the Harper government — to assert that B.C. cannot use its control over provincial Crown lands under section 109 of the Constitution Act to prevent federal work approved by the National Energy Review Board under the NEB Act, which would be finally approved by the federal cabinet under the changes in the first omnibus budget bill, C-38.

There is now little ability to challenge cabinet approvals of such projects. Such a potentially explosive legal strategy might rely on Supreme Court jurisprudence — which dealt with less controversial pipelines and railway projects.

Evidence of this silent legal strategy based on Section 92(10)a can be gleaned from one of the most controversial aspects of Bill C-45, the omnibus budget bill that altered the Navigable Waters Protection Act (the title of which was tellingly changed to the Navigation Protection Act).

The changes could give major pipeline projects an exemption from a previous requirement that would have forced pipeline proponents to provide evidence that the pipelines would not damage around 99 per cent of lakes and navigable waterways in Canada. There are some remaining protected lakes and rivers still subject to federal oversight (many of them magically seem to be located in Conservative-held ridings, but away from the proposed pipeline route).

If the scenarios I’ve sketched here are, in fact, part of a government strategy to push through the Northern Gateway pipeline, then Canada is in for a period of political and social tumult.

The two omnibus budget bills also mandated the downsizing of environmental protections under the Fisheries and Species at Risk Acts, which also would speed up private sector projects that come within the blunderbuss range of Section 92(10)a of the Constitution Act, 1867.

Intuition about this potential legal strategy may well have been the basis of the Idle No More movement. The grassroots movement’s fear, and that of most of the national chiefs at the Assembly of First Nations, is that the Harper government has set in train a plan to undermine one of the most fundamental of their rights under a competing constitutional provision — Section 35 of the 1982 Constitution Act, which covers duty-to-consult.

Prime Minister Stephen Harper may have another legal strategy in mind. He has refused to make any changes to the two omnibus budget bills. While he is proposing high-level talks with the AFN on aboriginal and treaty rights, his government may be counting on the fact that the duty-to-consult obligation falls on government — not on private entities. Unregulated pipeline projects pushed through by section 92(10)a could have major impacts on treaty and aboriginal rights without any obligation on the part of the private companies involved to consult First Nations or accommodate their concerns.

The only recourse for the First Nations is to attack the constitutionality of the two omnibus budget bills as a grave violation of the duty-to-consult and their aboriginal and treaty rights under Section 35 of the Constitution Act. First Nations have good reason to be hopeful; a December 2012 decision of the Yukon Court of Appeal in the Ross River Dena Council case found that the duty-to-consult exists even though the Yukon Quartz Mining Act gave officials no ability to to consult when recording mineral claims in First Nations-claimed traditional territory.

However, the ultimate legal approach available to the Harper government would be to claim that, based on other Supreme Court of Canada rulings, the doctrine of parliamentary sovereignty cancels out duty-to-consult prior to the introduction of legislation that affects the rights of First Nations.

If the scenarios I’ve sketched here are, in fact, part of a government strategy to push through the Northern Gateway pipeline, then Canada is in for a period of political and social tumult. Perhaps the only thing that could stop the strategy dead in its tracks would be the Conservatives losing seats in British Columbia.

First Nations, and all Canadians, deserve a government that does not use the Constitution as a battering ram.

Errol Mendes is a professor of law at the University of Ottawa with expertise in corporate, international, constitutional and human rights laws and policies. He is also the editor-in-chief of the National Journal of Constitutional Law. He has been an advisor to corporations, governments, civil society groups and the United Nations and recently served as a visiting professional at the International Criminal Court. His latest book is The Court of Last Resort: Peace and Justice at the International Criminal Court.

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