The logical, legal responses that create pipeline certainty are much simpler than many are assuming, writes Dwight Newman.

By Dwight Newman, April 12, 2018

The past week has seen politicians and journalists running around like chickens with their heads cut off. On Sunday, it became apparent that British Columbia’s actions against the Trans Mountain pipeline are creating a vague, festering uncertainty that is difficult for the project proponent to cope with while respecting its duties to its shareholders.

British Columbia’s government has managed to create this uncertainty without doing anything in particular. It has talked about creating new regulations on bitumen transportation through British Columbia or environmental regulations that could affect the pipeline, but has not put any forward. It has talked about referring the matter to the courts, but has not managed to craft a question. It is all a clever process of uncertainty creation and delay that is now having its desired effect.

The logical, legal responses that create pipeline certainty are much simpler than many are assuming. They don’t involve anything so exciting as lauching a new Supreme Court reference, reviving the long-dead federal power to disallows provincial laws, or invoking the Emergencies Act to bring in the military.

They involve simply implementing appropriate federal legislation and/or regulations that take control of the situation. To understand why that is so involves understanding the three main doctrines of Canadian division of powers.

The first of these three doctrines is called validity. The federal government can pass valid laws only on subject matters within its areas of jurisdiction (sometimes called “heads of power”). The provincial governments can pass valid laws only on subject matters in their areas of jurisdiction. An invalid law by either government is of no effect whatsoever.

The federal government’s constitutional jurisdiction over interprovincial pipelines is totally clear. It is present in s. 92(10)(a) of the 1867 Constitution as interpreted consistently through decades of case law. (The so-called federal declaratory power in 92(10)(c) can be invoked on a project within one province but makes no sense here, and there is no need for it here.) Any federal law on interprovincial pipelines is valid federal legislation.

The federal government’s constitutional jurisdiction over interprovincial pipelines is totally clear.

A complication comes because British Columbia can rightfully say that it can pass valid provincial laws that concern protecting the environment. And that is true so far as it goes. But I said there are three main doctrines of Canadian division of powers, and we have only talked about one of them so far.

The other two doctrines govern interactions between federal powers and provincial powers, and federal laws and provincial laws.

The second doctrine protects federal powers from provincial interference. This doctrine is called “interjurisdictional immunity.” This doctrine sounds complicated, and in some ways it is. So, in my constitutional law classes, I always introduce this doctrine with a short sound clip from M.C. Hammer’s “Can’t Touch This.” In simple terms, that song expresses in musical terms what the doctrine is all about. A provincial government’s otherwise valid laws and regulations cannot legally interfere with the core of a federal power or entities created under that power (such as pipelines).

Some scholars think that the rules on interjurisdictional immunity have shifted in recent years. I do not particularly agree with some of the claims they make. But they think that the courts are allowing more “cooperative federalism” where both levels of government can regulate on the same things ever more so than in the past. When I look at what is happening right now, it does not look very cooperative. But that is beside the point.

The view of these scholars helps generate some uncertainty where British Columbia can go around making statements that it can impose environmental regulations even on interprovincial pipelines and can use that uncertainty actually in effect to block them.

The legal solution that could work right now comes from the third main doctrine of Canadian division of powers. That is called paramountcy. It says that when federal and provincial laws conflict, then the provincial law is inoperable to the extent of the conflict.

That rule has been consistent since cases in the late 1800s, and it means that the federal government has some ultimate powers to trump the provinces where their powers overlap.

If the federal government in the coming weeks passed through Parliament a bill designed to achieve more certainty on implementation of the decision to construct Trans Mountain, the resulting law would take priority over any provincial law that exists now or were adopted in future. British Columbia could talk about whatever it wanted, but any lingering legal uncertainty that British Columbia is playing with right now would be wiped out.

An Act to Facilitate Pipeline Construction could set out to entirely regulate all environmental matters related to pipelines in a manner that would make clear that no provincial laws operate in this context. It could even contain extra rules and powers related to sensible balances on protest activity in the vicinity of pipeline construction.

Some of the same effects might even be achieved through regulations that could be adopted under some provisions of the National Energy Board Act. But the regulation-making process takes time. There could be technical legal arguments about the exact regulatory powers under the NEB Act. And the NEB Act may not be long-lived if Bill C-69 moves forward.

So, I think a separate bill is the route to go. It could be moved rapidly through Parliament with bipartisan Liberal and Conservative support. And the current certainty problems could be solved in a sensible legal manner. We can quit arm-flapping and get on with the business of restoring the rule of law.

Dwight Newman is a Munk Senior Fellow at the Macdonald Laurier Institute, and Professor of Law at the University of Saskatchewan.