Barbara Yaffe, Vancouver Sun, August 14, 2012
Christy Clark and Adrian Dix both are talking tough on the subject of dashing the Northern Gateway oil pipeline, notably, without saying how they'd do it.
This, when the how of the matter surely is every bit as relevant as the what.
After all, Clark and Dix are contemplating putting in peril something the federal government has designated as a vital strategic imperative for Canada.
Northern Gateway would enable oil exports from Canada's west coast for the purposes of trade diversification.
Yet, the premier has merely offered the prospect of "no pipeline" should Alberta refuse talks on sharing the project's spoils.
And Dix says: "We're looking at all of the options the province might use to deal with the Enbridge Northern Gate-way pipeline."
B.C.'s NDP leader reportedly has a legal team working on strategies. But to date, no details.
Neither leader wants to level a threat they legally can't carry through on. Hence the vagueness around what precise course of action they'd follow.
There are those who maintain B.C.'s bluster is just that, that the province in fact lacks legal authority to thwart the 1,200-kilometre pipeline and tanker port at Kitimat should it be approved by regulators and the feds next year.
Ottawa does appear to have a big say on Gateway; following an omnibus bud-get bill last spring, the cabinet can go so far as to overrule a negative decision on the project by the federal regulators.
Moreover, as Calgary political scientist and former Stephen Harper operative Tom Flanagan wrote recently, by virtue of Section 92 (10), subsection (a) of the Constitution, Ottawa has power over railways, canals and "other works and undertakings" - which Flanagan interprets, in modern times, to include pipelines.
This, he asserts, gives Ottawa authority to overrule any B.C. bid to thwart Northern Gateway.
Flanagan writes the feds also could use the "declaratory power" of subsection (c) to declare a work necessary for the general advantage of Canada.
The Constitution's federal powers potentially are "quite all-encompassing," agrees former senior B.C. bureaucrat Tex Enemark.
But, note, the feds never used such powers back in the 1960s to help Newfoundland route its hydro power through Quebec.
Ottawa demurred for political reasons, relating to Quebecois sensitivities.
And politics always are at play in such matters. Let's not forget, the prime minister wins a lot of Conservative seats in B.C.
Vancouver consultant Aldyen Donnelly, who has expertise in the communications and energy sectors, acknowledges pipelines crossing provincial boundaries do need federal approval to proceed.
But that "does not necessarily mean the federal government has the unconditional right to impose those projects on the provinces."
She believes, based on past decisions, the Supreme Court probably wouldn't uphold a federal attempt to impose Gateway on northern B.C. residents, "given that numerous alternatives exist" by way of other routes.
Then there's the added legal complication of aboriginal groups being among those northern B.C. residents.
"It is dumb to suggest that Harper would so unnecessarily use political capital trying to ram Gateway through, especially when there is such a low probability that the Supreme Court would uphold any such federal decision, " she said.
Further, Donnelly notes that B.C. can impose on Enbridge a variety of daunting measures - requirements for permits, licences and taxes - that might discourage or economically defeat the $6-billion project.
What's becoming clear is even those in the know do not concur on the legalities surrounding the possibility of Ottawa forcing Gateway on B.C.
Although Harper recently insisted the ultimate determinant will be purely the science involved, that's a pipe dream. Politics and court rulings will prevail.
© Copyright (c) The Vancouver Sun