Prime minister Justin Trudeau went to Edmonton yesterday, and amidst his many media appearances, made a few key points – that getting approval for Trans Mountain was a priority, that while considerations like an appeal or legislation were part of the “all options on the table,” he also made the point that he won’t use “legislative tricks” to get it through, and made some pointed comments about the Conservatives demanding that he wave a magic wand that doesn’t really exist to get it built. If you listened to what he was saying through the layer of pabulum that wraps all of his statements, the core point was that they will comply with the Federal Court of Appeal decision and find the best way to fulfil the roadmap to approval laid out therein.
And oh, what legislative tricks are being proposed. In a particularly boneheaded move, Independent senator Doug Black insists that passing his Senate Public Bill on the Trans Mountain pipeline will declare it in the national interest, and poof, problem solved. (He also suggested giving the NEB four months to redo the portions of the assessment related to marine tanker traffic, when credible people who know these processes say that’s a six-month process, so score another win for Black’s credibility). The problem of course is that there is no actual legislative solution to the issue – the certification is a Cabinet decision, and while some people suggest retroactively changing the legislation to keep the NEB scoping as it was in the report Cabinet based its decision on that the courts found to be flawed, that’s a prospect that will only engender more litigation and will cause further delays – which is why Trudeau has been making the point that they need to ensure long-term solutions so that there will be investor confidence (as Suncor’s CEO announced that they would halt any expansion of their operations until there is a firm pipeline in the ground). Oh, and no piece of legislation can get around Section 35 obligations for the duty to consult, and while I can see some political merit in getting the Supreme Court to weigh in on what exactly constitutes meaningful consultation, it sounds an awful lot like passing the buck to them in order to take the heat off of a political issue, which they really don’t appreciate, and frankly they’ve ruled enough times that governments should have a good idea about what constitutes meaningful consultation.
To add fuel to this fire, Jason Kenney has started making pronouncements about how this recent Court decision is “fuelling separatism” in the province, which really irks me because this wasn’t some bureaucratic decision out of Ottawa – it’s about the rule of law (and if you really want to be technical, the bureaucratic decisions of the NEB came out of Calgary, which is where their headquarters are located). Kenney is being a bad actor and is holding out lighters for arsonists to grab, only to turn around and say “Who, me? I wasn’t inflaming anything! I’m just relaying what I hear,” which is a very dubious denial, and he’s playing with fire in order to score some cheap political points. Add to that, his agitating against the rule of law has darker authoritarian tones, as Colby Cosh pointed out last week, given that this notion about Canada not being “open for business” because the courts protect peoples’ rights. He should be called out on this, rather than being encouraged to keep making these points by credulous journalists (just like those same voices who let Senator Black go unchallenged in that piece).
Meanwhile, Andrew Coyne makes that very point – that this ruling is about the rule of law, and that’s a good thing. Too many actors in this are trying to muddy the waters or accuse the judiciary of some kind of activism that they’re not actually doing (while encouraging their own type of activism that would ignore the rule of law in favour of perceived economic benefit), which is a very worrying sign.
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