‘This Could Be a Very Big Moment in Canadian History’

If the federal cabinet came up with a plan in its emergency meeting on the troubled Trans Mountain pipeline expansion Tuesday, no one is saying.

The meeting followed Kinder Morgan’s Sunday announcement that it was suspending all “non-essential spending” on the $7.4-billion project because of the B.C. government’s opposition.

But Burnaby South NDP MP Kennedy Stewart said he was concerned about repressive measures. He would be “shocked,” but not entirely surprised, if Prime Minister Justin Trudeau’s government invoked the Emergencies Act, which replaced the War Measures Act used by Trudeau’s father, Pierre, during the 1970 FLQ crisis in Quebec.

“This could be a very big moment in Canadian history,” said Stewart, who was arrested March 23 for participating in a demonstration against Kinder Morgan’s pipeline expansion. He returns to court Monday to learn whether the civil contempt charge he faces will be upgraded to a criminal charge.

Stewart’s concern is supported by Natural Resources Minister Jim Carr’s 2016 speech warning that if Trans Mountain opponents “choose for their own reasons not to be peaceful,” the federal government, “through its defence forces, through its police forces, will ensure that people will be kept safe.”

Carr later said that “no warning [was] intended,” and recently said that now is not the “time to issue threats.”

Stewart said the government is being advised as to what would happen if it uses the Emergencies Act.

“It would mean that Kinder Morgan workers would be escorted by military personnel and police to build the pipeline,” he said. “Even more seriously, I’ve been told that the RCMP and generals would take control of the operation.”

Stewart expects there would be “massive resistance” to such an approach by the Trudeau government. “If that happens, it will be like nothing we have ever seen in Canada,” he said.

Under the law, the federal government can declare a public order emergency if “threats to the security of Canada” are serious enough “to be a national emergency.” The government would then be able to regulate or prohibit “any public assembly that may reasonably be expected to lead to a breach of the peace,” as well as designate and secure “protected places.” Penalties for violating this provision of the Emergencies Act can be significant, and include a $5,000 fine, five years in prison, or both.

Stewart said the issue is irrelevant.

“This pipeline is dead,” he said. “What company would want to stand behind the Canadian Army to lay pipeline?”

But elected Alberta Sen. Doug Black has a different approach.

Black wants the federal government to rely on a constitutional fix to solve the impasse with the B.C. government.

In February, he introduced a private member’s bill (S-245) that invokes the Constitution Act, 1867 “to declare the Trans Mountain Pipeline project and related works to be for the general advantage of Canada.”

Black said the bill, currently at second reading in the Senate, would give the federal government “the ability to manage all aspects of the pipeline — its construction, operation and maintenance.”

Section 92 of the Constitution Act gives Parliament the authority to declare “works,” such as a pipeline that crosses provinces “to be for the general advantage of Canada.”

But that provision does not empower the federal government to address the “ancillary matters” involved in building a pipeline, explained Black, a former corporate and commercial lawyer who acted for the energy industry.

“Matters of property are the exclusive jurisdiction of the provinces. Therefore, British Columbia can frustrate the pipeline developer by denying access to roads, bridge crossings, power connections — whatever they choose,” he said. “My bill takes that authority away. It gives to Ottawa all authority, even down to labour relations.”

Black noted that the constitutional authority has been used more than 400 times, 64 per cent of the time related to the construction of rail lines, but has not been relied on for decades.

He said that there is strong support in the Senate for his bill.

“Senators understand two essential points. One that what’s going on in British Columbia now is a violation of the rule of law, and we are sworn to uphold the law,” Black explained. “And number two, Canada is destroying its international competitive position, and senators understand that too.”

But University of Ottawa adjunct law professor Duff Conacher expects that even if Bill S-245 passes Parliament, the B.C. government would likely challenge that declaration and let a court decide whether the project is to the “general advantage” of Canada.

He said the federal government could also argue in court that it has the authority on the pipeline project under the doctrine of paramountcy, which would supersede provincial jurisdiction.

“Another factor the federal government could consider is that under subsection 91.2 of the Constitution Act, it has the power to regulate trade and commerce, which includes exporting oil,” explained Conacher, co-founder of Democracy Watch. The organization launched an unsuccessful conflict-of-interest complaint in 2016 against former B.C. Liberal premier Christy Clark’s government regarding the Trans Mountain project.