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The claim that Canada's facing a constitutional crisis is just politics

The fact the federal and Alberta governments were unable yesterday to reach an agreement with British Columbia on proceeding with the Trans Mountain Pipeline Expansion Project does not mean Canada is facing a constitutional crisis.

However, it doesn't preclude one happening eventually.

Nevertheless, it's important to state this clearly because in the next few hours we are likely to hear commentators claim Canada is experiencing a constitutional crisis. Some will do so because they are ignorant. Some will do so because they have an agenda. All will be wrong.

This is a political crisis, not a constitutional crisis.

In a federation like Canada or the United States, a constitutional crisis occurs when a country's supreme law -- its constitution -- does not include the tools to resolve a dispute between jurisdictions, institutions or individual office holders.

The last constitutional crisis in Canada took place a decade ago, in November and December 2008, when the prime minister, Stephen Harper, extracted an agreement from the governor general, Michaëlle Jean, to prorogue the House of Commons in violation of tradition and basic democratic principles to prevent the fall of the Conservative government in a vote of non-confidence.

This was a constitutional crisis because the mechanism by which MPs can bring down a government is not written down in the Westminster system, it is only a "convention," that is, an understanding that is expected to be practiced honourably. Moreover, there's nothing to be done about that because our founding constitutional document says only that Canada will have "a Constitution similar in principle to that of the United Kingdom." In other words, we will be governed through the Westminster system.

That constitutional crisis was resolved in a way that undermined our democracy, but what is done is done.

The present disagreement between the government in Victoria (now supported by the one in Quebec City) and the governments in Ottawa and Edmonton is not a constitutional crisis, as has been claimed by some politicians and pundits, because the Canadian Constitution contains clear mechanisms for resolving such disputes, and a reasonably clear enumeration of what the rules are.

B.C. does not want the Trans Mountain Pipeline planned by Kinder Morgan Inc. to proceed; Ottawa and Alberta insist it is a national priority and must proceed posthaste. For its part, Texas-based Kinder Morgan says it will pull the plug on the project by the end of a May if it can't get an ironclad guarantee the project can be profitably completed.

Yesterday's gathering of Prime Minister Justin Trudeau, Alberta Premier Rachel Notley, and B.C. Premier John Horgan, dubbed an "emergency" effort to resolve the impasse, appears to have achieved little. At least fisticuffs did not break out.

After two hours, no one's position had changed. Trudeau vowed to introduce redundant legislation to assert Ottawa's jurisdiction over an area no one disputes is Ottawa's jurisdiction -- and perhaps to try to extend it. Like Notley, he said Ottawa is prepared to provide Kinder Morgan with financial guarantees to ensure its continued interest in the project. Without some role for the two governments in the company’s governance structure, this is not much more than corporate welfare.

Regardless, there is a lack of clarity in this situation because federal and provincial jurisdictions share responsibility for protecting the environment in Canada's Constitution. If any legislation proposed or passed by B.C., goes too far, that will have to be determined by the courts.

And so far, the B.C. government has neither done nor proposed anything that is not allowed by the Constitution. While we may not like it here in Alberta, nowhere in the Constitution does it say, Thou shalt not create uncertainty for business.

Nevertheless, yesterday Horgan pledged to both the prime minister and his Alberta counterpart, in the words of the Globe and Mail, "that he will stand down if the court rules against his government."

The political crisis arises because -- entirely for political reasons -- the governments in Edmonton and Ottawa have concluded they require an announcement that the pipeline expansion is proceeding in a hurry to achieve success in looming general elections.

Constitutional solutions, alas for the federal Liberals and the Alberta NDP, take a certain amount of time to resolve because, in the absence of agreement, they must be adjudicated by the courts.

Tactically speaking, therefore, that is unquestionably an advantage for the government of British Columbia -- which suspects Kinder Morgan is looking for an exit strategy. It is obviously to the disadvantage of the Alberta NDP and federal Liberals because, as 2019 nears, they can both hear the inexorable ticking of the election clock.

Nevertheless, the claims we have been hearing that this is a constitutional crisis are nothing more than political spin designed to create a sense of urgency, paint Horgan as a constitutional villain if he can't be stampeded, and justify unconstitutional measures against his province to force his government's compliance with the Trudeau-Notley agenda.

This is not to say that the Alberta-Ottawa program is not in the country's interest, only that the constitutional winds don't seem to favour it on what its proponents consider a reasonable time frame.

Well, all's fair in love and politics -- and the oil business, obviously -- but the claim this is a constitutional crisis is simply ... politics.

It will only become a constitutional crisis if someone tries to force the issue according to an accelerated schedule by, say, inappropriate and unnecessary use of the Emergencies Act or some other potentially unconstitutional means, as has been both advocated and speculated.

Note that the only people calling for this approach support the position taken by the Alberta and federal governments, an apparent elite consensus in those two jurisdictions that includes the conservative opposition parties in both.

Quebec's recent opposition to shoving Kinder Morgan’s pipeline up B.C.'s nose, which has a roused such hysterical condemnation in conservative circles here in Alberta, is entirely consistent with the position on such issues taken by that province since Confederation -- and the same as the position historically taken by Alberta. So no one should be astonished by this, or offended.

While we are not in a constitutional crisis now, any attempt to bypass the constitution to speed expansion of the Trans Mountain Pipeline will likely result in one.

If that happens, I dare say, it will strengthen separatist sentiment in Quebec and possibly create it in British Columbia, and not without good reason. Long term, as has already been argued here, it may also provide a precedent for some future federal government to interfere in Alberta's affairs in ways we do not much like.

In the short term, one would think, that would create more uncertainty for Kinder Morgan, not less.

Que sera, sera, but if there is a constitutional crisis, it needs to be made perfectly clear to all who actually provoked it.

This post also appears on David Climenhaga's blog, AlbertaPolitics.ca.

Image: Wikimedia Commons.

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