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Will Trudeau force the building of the Kinder Morgan pipeline?

The Council of Canadians is calling on Prime Minister Justin Trudeau to make it clear that he will not force through without consent the building of the 890,000 barrel per day Kinder Morgan Trans Mountain tar sands pipeline in the face of provincial, municipal, First Nation, and community opposition.


Earlier this week, following the NDP-Green accord in British Columbia which highlighted the incoming government would work to stop the pipeline, Trudeau stated, “The decision we took on the Trans Mountain pipeline was based on facts and evidence on what is in the best interests of Canadians and indeed, all of Canada. Regardless of the change in government in British Columbia or anywhere, the facts and evidence do not change.”


The Globe and Mail has reported, “Previous court rulings suggest the two lower levels of government [municipal and provincial] cannot derail a federally approved pipeline project, but a new government could test that constitutional power and force Ottawa to defended its jurisdiction in the court.”


Toronto Star columnist Tim Harper now writes, “Trudeau clearly has the constitutional right to push forward on a major pipeline expansion on the British Columbia coast. The Constitution is one thing. Politics is another. …His constitutional power has been rarely used in modern history and would likely play poorly in Quebec where [the Energy East] pipeline faces wide opposition. It would do severe damage to his political brand.”


In terms of how the incoming B.C. government could stop Kinder Morgan, Harper notes, “It will likely include, at very least, a new provincial environmental assessment. Opponents feel the National Energy Board report on the project was deficient. It could mean delaying or withholding a number of provincial permits the company still requires. [NDP leader John] Horgan and [Green Party leader Andrew] Weaver can demand Kinder Morgan fulfill all 37 conditions appended to Clark’s certificate of approval.”


Harper adds, “There are also 19 legal challenges to the expansion. The new government could choose not to defend one of them brought by a B.C. First Nations community.”


The North Shore News explains, “Although the National Energy Board and the federal cabinet have authority over whether to approve the project, the province under Christy Clark did issue its own environmental certificate in January. That certificate is being challenged in court by First Nations … charging that the Crown failed in its duty to provide meaningful consultation as guaranteed by the Constitution. [The government could] drop the province’s defence, likely resulting in the environmental certificate being thrown out…”


Alberta Premier Rachel Notley says, “Our Constitution sets out that the federal government has the ultimate responsibility for infrastructure projects.” Also arguing in support of the pipeline, CTV commentator Don Martin adds, “Unless Prime Minister Trudeau is swayed by petty political considerations, he will continue to insist Kinder Morgan is in the national interest, which gives him the constitutional obligation to push the pipeline through. …At some point soon, Trudeau needs to assert his authority aggressively.”


During the October 2015 federal election, Trudeau stated, “While governments grant permits for resource development, only communities can grant permission.”


A year later, his Natural Resources Minister Jim Carr, responding to the prospect of a Standing Rock-like resistance to the pipeline, stated, “If people choose for their own reasons not to be peaceful, then the government of Canada, through its defence forces, through its police forces, will ensure that people will be kept safe.”


When Trudeau approved the pipeline in November 2016 he broke his promises on community consent and implementing the United Nations Declaration on the Rights of Indigenous Peoples. It remains to be seen if he will compound that by confronting the democratically-elected provincial government of British Columbia.