The federal government, which is the government with the authority to act in this matter, has been largely silent. The silence has allowed B.C. and Alberta to fight a battle that they don't have any business fighting.
Kinder Morgan's Trans Mountain pipeline was a federally approved project. The debate and protests over this project have turned this pipeline dispute into debate on national unity.
The NEB is a federal regulator, as I previously said. When the NEB grants its approval on a project, the project is ready to go. The federal government maintains the right over the transportation of energy between provinces. Trans Mountain was approved, and the law is clear: the federal government has jurisdiction. The Government of British Columbia hijacked the process, and the federal government did nothing. This lack of action has allowed a constitutional crisis to develop. Because of this unnecessary crisis, Kinder Morgan has said that unless the situation is resolved by May 31, they will pull out of the project.
CEO Steve Kean said:
A company cannot resolve differences between governments. While we have succeeded in all legal challenges to date, a company cannot litigate its way to an in-service pipeline amidst jurisdictional differences between governments.
In other words, Mr. Chair, unless the federal government steps up and asserts its rightful authority, there will be a vacuum in terms of leadership. Disputes cannot be resolved, particularly not contentious ones, if the federal government does not assume its proper and correct role as the ultimate say. This should not be a difficult issue, given that the movement of energy product between provinces is a federal jurisdiction. If the federal government does not act upon its responsibility within clear federal power, then Confederation will constantly be threatened by every dispute. This is not an acceptable state of affairs.
In fact, the Government of British Columbia is playing a very dangerous game. They are risking the unity of our Confederation by refusing to accept federal jurisdiction. By deliberately and willfully flouting federal direction, B.C. has opened up a constitutional mess. An April 19 editorial from the Waterloo Region Record, republished by the National Post on April 20, concludes its analysis of the situation very skilfully:
Why would any other province takes Ottawa's leadership and authority seriously when there are no meaningful consequences for ignoring it? Why would any international business invest in a country where legally-approved projects can be derailed so easily? Canada's credibility, as well as Trudeau's, is on the line.
In fact, Mr. Chair, this hit to our credibility is already happening. In an April 9 press release, The Explorers and Producers Association of Canada has attacked the lack of federal action. They say:
The Explorers and Producers Association of Canada expresses our deep concern with the announcement by Kinder Morgan that it is suspending all non-essential activity and spending related to construction of the Trans Mountain Expansion Project.
This critical national project, approved by all relevant regulatory authorities and the Federal Government, has been allowed to be frustrated, harassed and blocked by the abject failure of the Federal Government to provide effective national leadership and government for all Canadians, particularly those in Provinces who need access to our national seaports to support their economies and their citizens.
Kinder Morgan’s statement that it is unwilling to risk billions of dollars of its shareholders money without a clear path forward is yet another devastating critique of Canada’s growing reputation as a state where the rule of law is not respected and enforced by national and subnational governments. Private sector investment is a key determinant of future economic prosperity yet Canada today ranks near the bottom of virtually all leading industrialized economies on this measure.
EPAC, on behalf of its 150 member companies, who invest billions of dollars each year in Canada, employ tens of thousands of Canadians and deliver one fifth of the nation's oil and natural gas supplies, calls on the Federal Government to step up to show true leadership and deliver on its constitutional responsibilities.
They're calling upon the federal government to show true leadership and deliver on constitutional responsibilities, but how will they do this? The government talks about getting the pipeline done, yet has not indicated how it is intends to do so.
I believe that Mr. Dwight Newman has some good thoughts on the matter. Mr. Newman is a Munk senior fellow at the Macdonald-Laurier Institute, and a professor of law at the University of Saskatchewan. He has argued that the solution to the pipeline crisis is very simple. It is my hope that during our study, we can see if the methods that Mr. Newman recommends will be useful to our proposes. He said:
The logical, legal responses that create pipeline certainty are much simpler than many are assuming. They don't involve anything so exciting as launching a new Supreme Court reference, reviving the long-dead federal power to [disallow] 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.
Mr. Chair, to date we haven't seen any of that.
Getting this pipeline built is not a matter of the federal government coming up with an elaborate scheme but simply applying the law as it exists. Mr. Newman's recommendations could form the basis for an effective government response to this pipeline crisis. His solution is a simple bill to make it clear that the federal law will always trump provincial law in the matter of building pipelines.
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.
This is a simple solution to a problem that has become far greater than it needs to be. Leaving this crisis any longer is unacceptable. Mr. Chairman, this is an emergency. The future of our country depends upon the actions taken today. If the committee does not undertake this study, then there's a serious risk to not only our short-term economic output but also our mid-term levels of foreign investment and the long-term health of the Canadian federation.
I urge all members to vote in favour of this study. We must do it now before we run out of time. May 31 is only 30 days away. Therefore, with my Conservative colleagues, I would like to urge all members of this committee to adopt the motion for the good of this country.
I want to read the motion, and then I'll conclude, Mr. Chairman. The motion says, quite clearly:
That, pursuant to Standing Order 108(2), the Standing Committee on Natural Resources immediately undertake a study to find solutions to the obstacles facing the approved Trans Mountain Pipeline expansion; that the Committee consider factors such as the May 31st deadline issued by the proponent; the potential economic, socioeconomic, investment, and government revenue losses, and impacts on market access for Canadian oil, related to the potential cancelation, especially on Indigenous communities; municipal, provincial, and federal jurisdiction as it relates to the project; potential points of leverage between the federal and provincial governments, and potential fiscal, constitutional and legal solutions; that the first meeting take place no later than May 8th, 2018; that the witnesses include Kinder Morgan, Dr. Kevin Milligan, and Dwight Newman; that all meetings be televised where possible; and that the committee report its finding to the House.
I so move.
Thank you, Mr. Chair.