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Why demanding Ottawa intervene to bend B.C. to Alberta's will is probably a terrible idea, from Alberta's point of view

Perfidious Pierre, villain of the National Energy Program, as the late prime minister is understood by all good Albertans to have been (Photo: Wikimedia Commons).

All Albertans are fed scary stories about perfidious Liberals led by the tyrant Pierre Trudeau and the nefarious provincial-rights-stealing National Energy Program (NEP) with their mothers' milk. We all understand that This Must Never Happen Again.

The ideas the NEP wrecked the provincial economy in the 1980s and that the elder Trudeau did it on purpose are mostly baloney, to stick with nutrition metaphors, but at this point it's pretty hard to persuade any dyed-in-the-wool Albertan that's so. Never mind the worldwide recession of 1981 and '82. They've stopped listening long before you get to that.

Albertans of all political stripes accept fairy tales about the NEP as unvarnished truth because generations of Conservative politicians have worked hard to entrench this narrative about the evils of Ottawa's interference in Western Canadian provincial rights deep in the public psyche.

So why, all of a sudden, is there an entire elite consensus in this province that the government of Prime Minister Justin Trudeau must -- simply must -- intervene in the Trans Mountain pipeline dispute to make British Columbia surrender its constitutional jurisdiction over the environment?

At the opening of an emergency Cabinet meeting in Edmonton Monday, Premier Rachel Notley said the stakes are too high for Ottawa not to step in and, in the words of the CBC's report, "allow its authority to be challenged."

The meeting was called in response to Kinder Morgan's manipulative weekend press release that threatened to pull the plug on its Trans Mountain pipeline expansion project if British Columbia's NDP government continues to oppose it. Reporters were invited.

Conservative Opposition leader Jason Kenney has repeatedly and forcefully said much the same things as Premier Notley about this.

The thing is, though, it's very hard to make a credible case that Ottawa's authority has actually been challenged.

The federal government has approved the project, which comes under its clear jurisdiction because the pipeline in question crosses a provincial border. Until the company threatened to walk away from the project on Sunday, it appeared to be moving ahead.

It is true the B.C. government of Premier John Horgan has talked of imposing environmental restrictions on what is shipped through that province in pipelines and other modes of transportation. But B.C. clearly has the right to try to impose such regulations because provinces and the federal government share jurisdiction over the environment.

Whether B.C.'s legislation is constitutional or not will depend on what it says. Generally speaking, the more it is directed specifically at the Trans Mountain pipeline, the less likely it is to succeed in the courts. If B.C. and Ottawa pass contradictory laws, the federal legislation will trump the provincial law.

But we don't yet know what B.C.'s bill is going to say. Horgan himself and the B.C. government's lawyers may not even know. What we do know is that the Constitution gives them the right to give it a go.

In response, the Alberta government and some federal politicians complain that B.C.'s talk creates uncertainty for the pipeline project, and so it does. If it wasn't just a crass attempt to shake down a politically vulnerable government, Kinder Morgan's announcement may have been a reaction to that uncertainty.

But guess what? If free speech or provincial regulations alike create uncertainty, they're still protected by our Constitution. Indeed, you could argue such opinions are all just part of that big wonderful market right-wing politicians like Kenney are always praising.

So what both the Alberta NDP government and the United Conservative Party Opposition are demanding, it would seem, is that Ottawa step in and immediately trample British Columbia's constitutional powers with the goal of giving Kinder Morgan the assurance it says it needs to get the pipeline finished.

Most people in Alberta and a lot in Ottawa seem to think this project is in the national interest, and it may be. Alas for them, the B.C. government and huge numbers of B.C. citizens do not agree.

Notwithstanding Albertan politicians' desire to see the project completed quickly, isn't it a mistake for them to demand Ottawa undermine recent constitutional jurisprudence that provinces have strong powers within their jurisdictions? Isn't that exactly what Notley and Kenney are doing when they insist Ottawa can and should aggressively step in to overrule other provinces' powers when their positions don't suit Alberta?

Surely this is a bad idea from Alberta's perspective. After all, if the federal government can establish the precedent it has the authority to step in easily and thwart things B.C. has the power to do, next time it may use that authority to thwart things Alberta (or Saskatchewan, or whomever) wants. You know, like strongly regulating the amount of bitumen that can be extracted from the Athabasca oil sands.

This certainly goes against a long tradition in Alberta that goes back to Peter Lougheed's Progressive Conservative government during the NEP years, and indeed back to the Social Credit regime of William Aberhart and Ernest Manning, of strongly asserting Alberta's rights.

Perhaps both the NDP and the UCP imagine the division of powers in the Constitution shouldn't apply to other provinces, only to Alberta.

More likely, they feel they have no choice but to fight to keep the oil industry sweet. It's pretty hard to argue this isn't an example of the industry's continued domination of the Alberta government.

Meanwhile, Kenney has also agreed with Notley's idea public money in the form of an ownership stake in Kinder Morgan should be spent to ensure the Trans Mountain pipeline project is completed. "I believe the Government of Alberta must be prepared, along with the federal government, to step up and provide financial certainty to the investors of Kinder Morgan," he stated Sunday. This is quite a dramatic flip-flop for an old anti-tax propagandist from the Canadian Taxpayers Federation (CTF)!

It appears non-partisan support is already in place in the Legislature for Alberta taxpayers to underwrite Kinder Morgan's risk, while its Texas-based parent corporation can pocket the profits. This is what CTF operatives like Kenney in weak moments term "corporate welfare."

Premier Notley said at yesterday's cabinet meeting the NDP will introduce an emergency declaration demanding more aggressive federal action. That will apply pressure on Trudeau, who clearly would prefer to avoid having to do anything likely to harm his Liberals' withering electoral chances in Coastal B.C.

There is also widespread support in Alberta for trade measures Premier Notley indicates Alberta will take against British Columbia -- which are almost certainly unconstitutional. Some of those may require co-operation from Kinder Morgan to restrict certain substances in the existing pipeline that might expose the company to legal liability from the companies it ships to, or even the B.C. government. It will be interesting to see how Kinder Morgan reacts to that.

It the meantime, it appears to have occurred to no one except my colleague, the blogger Dave Cournoyer, that someone needs to offer Horgan a way to compromise without losing face. Say, like putting up serious federal money to protect B.C.'s navigable inland waters from the increased tanker traffic that will move through them if the expansion project is completed.

That would be sound policy, in the national interest too, although it will require cooler heads to recognize that. Right now, it's hard to be optimistic.

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

Photo: Wikimedia Commons

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