In the last month, there has been a significant amount of discussion about the relationship between Alberta and British Columbia, with the Kinder Morgan pipeline expansion project being the cause of new tension between the two provinces. British Columbia’s NDP government, backed by the BC Green Party, has announced significant steps to regulate the pipeline expansion, which project supporters treat as intentional delays and attempts to block the project from proceeding. Pipeline opponents respond by pointing out British Columbia has the right to determine its own environmental regulations for its land and waterways.
The trigger was a point made by the BC Government that it would seek to restrict oil bitumen exports via the pipeline expansion until a thorough study could be completed to ensure that the increased amount of bitumen traveling through BC waters could be cleaned and prevent significant environmental damage to the BC coast. This was seen by Alberta as an attempt to block exports of their chief economic product, something that would be unconstitutional.
Under the Constitution, Alberta is correct in its assertion that the pipeline project is a federally regulated project, and that Ottawa has the jurisdiction needed to force the project to completion over the objections of the provinces. This, however, ignores the fact that the provinces and federal government share responsibility for environmental protection, and that there has been zero harm done to users of the pipeline at this time.
The response from British Columbia has been that the points of contention are to be discussed with the citizens of British Columbia, and in that the province has the absolute right to consult with its own people. The BC Government recently announced that it would ask the Supreme Court to determine whether British Columbia had the constitutional right to potentially limit exports as part of its environmental regulations. It is unclear when that constitutional question would be answered, though many experts believe that the Supreme Court would rule against British Columbia on that question.
While it is likely British Columbia will lose its court challenge, the issue is less clear with regards to Indigenous groups who have brought forward their own court cases against the Kinder Morgan expansion. Previous court cases, specifically Delgamuukw v. British Columbia, and affirmed later in Haida v. British Columbia, have shown that there is a requirement for the government to consult with Indigenous groups about land use that occurs on traditional or treaty territory. The definition of consultation has traditionally only been applied to the government and not to private actors, which would exempt Kinder Morgan from needing to consult with Indigenous groups along the proposed expansion route. However, the federal government would still be required to consult with those groups and take that consultation into consideration when approving the pipeline expansion, and it would seem likely that the definition of meaningful consultation could be changed, or at least better defined, in light of these new court challenges.
While there are certainly serious constitutional questions that the pipeline debate has brought forward that deserve answering, least of all to ensure predictability for any future large economic project brought forward in Canada, that isn’t the only reason why there’s now conflict between the two western provinces. The short answer is politics.
Alberta faces a required provincial election next year. The incumbent New Democrats have been faced with budget deficits caused by slumping oil prices since winning their surprise 2015 victory against the Progressive Conservatives and Wildrose Alliance. Those two conservative parties united last year to form the United Conservatives of Alberta, and polling indicates the United Conservatives maintain a consistent lead in popular support in Alberta. For Premier Rachel Notley of Alberta, any chance of her NDP government winning a second term requires a pipeline that is approved and oil from the Oilsands being shipped to an ocean port. Doing so would allow oil companies in the province to obtain international oil prices, which could increase investment in the Oilsands and rectify some of the budgetary problems faced by her government. It would give her a powerful argument in favour of re-election if she could credibly claim her policies helped give Alberta its first pipeline to tidewater in over forty years.
The federal Liberal party also sees a benefit in participating in the politics of the pipeline debate. Like the Alberta NDP, Justin Trudeau and the Liberals face a mandatory election in 2019. Part of the Liberals’ 2015 campaign was to pair environmental protection with economic developing, saying that we can’t have one without the other. A failure to get the pipeline constructed would play badly, given the carbon tax and other environmental regulations that have been put forward already. Mr. Trudeau would strongly prefer to see Premier Notley returned to power instead of having to work with a United Conservative Party that is strongly opposed to most of the federal Liberals’ governing agenda.
Both leaders would like to return to voters having successfully kept some of their most dramatic promises in what is likely to be competitive elections.
The political calculations are somewhat different in British Columbia, where Premier John Horgan’s New Democrats govern only with the voting support of the BC Green Party. This precarious situation was predicated on the shared areas of concern between the two political parties and the similar policy responses each party presented to voters in the 2017 election. One of the areas in which the two parties were in general agreement was in opposing the Kinder Morgan pipeline expansion, with the New Democrats promising they would use every tool in the toolkit to stop the pipeline. Now in power, the New Democrats are being forced to live up to their promise by their Green counterparts, who expect concrete action on pipeline opposition and not mere lip service. Should the Green Party vote against the New Democrats on a matter of confidence, it would likely trigger new elections in British Columbia that would lead to an uncertain future for the New Democrat government.
None of this is to say that this is all political theatre. The political actors involved in what’s happening with the Kinder Morgan expansion truly believe in what they are saying, and the political calculations are only part of what is motivating them to action. Each of the leaders in question are doing what they think is best for their constituents, and this is one of the rare times in which two adjacent provinces have absolutely conflicting views on what the best solution is.
How these political and constitutional questions get resolved will shape the way we govern ourselves for the next generation, and it is worth watching to see what the resolution is to the pipeline debate, as well as how the political fortunes of each leader change because of that resolution.