Kenney and the UPC campaigned on a get Alberta back to work by "taking on" "our enemies." On one level, I argued in my last post, this discourse runs their government afoul of the rule of law and that is not a place that anyone should want to be. Whatever the failings of the rule of law in Canada -- and there have been more than a few -- what are the alternatives to it? But rhetoric is not reality and political strategy is precisely that. There are, to be sure, true believers among the UPC who view the courts in much the same way as Tea Party Republicans in the US: as so much political BS. But, there are others who don't and who recognize the problems of trying to use politics to influence the courts. They have, however, gambled that as political strategy this might work and so even while they are not true believers, they go along for the ride.
The same thing with turning off the taps (or artificially inducing an energy crisis in BC). This is a piece of rhetoric designed to get BC to reconsider its opposition to a pipeline that the government of Alberta says it needs. Yes, I expected Kenney to move quickly on this. I suspect he will try to force the issue because he wants to (a) confirm his position, (b) because he is a true believer, and (c) because this is the most effective way to ratchet up the heat, as it were, while actually not ratcheting up the heat. Right now, with summer coming on, the need for oil for things like heating is not pressing. So the political calculation is this: the Alberta government will, in effect, fire a warning shot across the bow of BC to see if they can convince the provincial government to blink.
Leaving aside, for now, the merits of this particular political strategy, let's think about the BC side of the equation. What is it that the BC government is asserting? Why? And what does the government of Alberta want?
The issue at hand is whether or not Alberta can run a pipeline across BC to see oil to Asian markets via supertankers loaded on the coast of BC. Alberta says "yes" and BC says "no." The Alberta position is that because they are a landlocked province they have something approximating a right to transport goods to market over other provinces (if need be) and that the federal government should enforce this right. To do otherwise would create an undue harm to Alberta, severely (in this case) damaging its economy, creating manifest material harm (layoffs, unpaid bills, family hardship, and the like).
This is an interesting argument and it is one that should not be lightly dismissed. The federal government has not agreed with it, but has instead taken a different approach. They are trying to get the government of BC to agree to an oil pipeline by assuring the population of BC that the pipeline can be made safe.
From the perspective of inter-provincial politics and federalism, the question is this: can the federal government force one province to accept something it does not want so that people in another province benefit? Could they, for instance, argue that a particular policy is in the national interest and so provinces may need to be forced into line.
Comparative cases are slim. The Newfoundland/Quebec Churchill Falls squabble does not fit the bill because the issue is the contract Newfoundland signed to transport hydroelectricity across Quebec to the US and whether or not that contract should have legal force (in this case, Newfoundland says "no, it should be up for renegotiation" and Quebec says "yes." So far, the balance of arguments have gone to Quebec: contracts do have legal force even if one of the signatories ends up getting the short end of the stick). Quebec is not opposed to energy moving across Quebec to the US from Churchill Falls. Here he debate is about levels of compensation so it is not the same thing. Likewise, the NS/NB squabble over natural gas moving across NB to New England was again not a case of NB rejecting the gas. NB just wanted a cut rate on NS gas as the price of seeing it moved through NB. Again, the balance of arguments there is that NB was not entitled to a cut rate (and, to tell you the truth, because NS gas is so limited, this case has become largely irrelevant now anyway).
Other instances are equally difficult to use as precedents. The case of rail transport of grain out of prairie provinces was not an issue because no one was opposed to grain and all provinces benefited from the rail links. Indeed, all provinces could agree that the feds should subsidize rail transportation.
The one potential precedent I could think of follows from rail, however. Could one argue that moving oil is just another form of transportation? After all, oil is moved by truck and rail and that has not stopped. Could one argue that a pipeline is akin to transportation by other means and, hence, can indeed be regulated by the federal government.
The problem, of course, is that oil is not just another good that is being transported. No one had any problems with grain because grain is, frankly, not a problem. It causes no pollution. It is easy to clean up if it spills; heck, you can just leave it lying around and it causes no harm. Oil is different in a number of senses: it is polarizing (its opponents are deeply opposed to it and to the oil sands in particular); it is dangerous (there are spills and leaks all the time and explosions that can and have killed scores of people). If it gets in waterways (from tankers) it causes serious pollution for fragile ecologies. And, it creates pollution that is harming the planet at a record pace and on this there is no scientific debate.
So, now the question is different. From the BC perspective, the issue is does one province have the right transport dangerous materials across another province in a way that enriches the first province by sticking the second province with the problem if something goes wrong? What happens if, for example, there is a serious leak in the pipeline? The first answer is "there will not be" but that does not really answer the question, does it? In fact, it denies the legitimacy of the question by making it seem like it is just silly. But, if someone were going to transport something dangerous across ... well ... my province, don't I have the right to have my questions answered before the transportation begins?
Said differently, the question is not silly because the context in which it is asked is important. It would, for instance, be silly to worry about the potential harm from grain because there is none and creating an argument that there is would require a series of unusual acts of faith; whereas, there is a great deal of evidence that transporting oil via pipelines and other mechanisms have established dangers associated with them that seem to be unavoidable. That is: problems from oil transportation are not a fantasy. They occur regularly and can be shockingly serious when they occur (witness BP in the Gulf of Mexico, the train explosion in Quebec in Canada, the Exxon Valdez).
With this in mind, our question shifts a bit, and, in fact, becomes twofold:
- Is it reasonable to be concerned about the transport of potentially dangerous materials across a given territory?
- Does the government of that territory have the right to take action to protect its environment and people?
I am going to say yes to the first one and that is easy. In fact, we might wonder about someone who was not concerned. I suspect, even those people who say "it is safe" demonstrate their concern in some way. For example, they would be upset if someone were moving something potentially dangerous across their kids' school ground or baseball field.
To answer the second question, imagine a different situation. Imagine your neighbour wanted to move something across your lawn to sell to the neighbour on the other side. "Its cool," she tells you, but you have doubts. There have been problems with the transport of these goods in the past. If it gets lose it is harmful to the environment, dangerous to wildlife, really really expensive to clean up, and the taxpayers (aka, you) often have to foot at least part of the bill because the settling of accounts can take years and years and end up in the courts. Your neighbour's guarantee -- "there will be no problems" -- seems to ring a hollow because it is not at all clear that this is a fair trade. In fact, it is not clear that this is a trade at all. You seem to be bearing the risk for your neighbour's profit. Your neighbour assures you its safe and says she will help if a problem occurs, but what if she doesn't? What is she sells her house (metaphor: there is an election) and the new neighbour decides they don't want to help and don't feel they have to. In fact, your current neighbour has already shows a bit of disregard for the law (see previous post) ... so, what happens even if they are found legally responsible and just disregard what you have to say and the damage to your property? What happens if you disagree on the amount of damage to your property and she (or some future occupant of the house) low ball you?
The point is that, even if you want to help your neighbour, there are a lot of unanswered questions and your neighbour has been quick with guarantees but slow on details. Then another problem occurs. The town bylaw officer (yes, we have one of those in Sackville) shows up and tells you that your town has a law regulating the transport of dangerous goods and your neighbour has not completed the required assessment to ensure that the transport of her good is safe. The bylaw officer does not know whether it is safe to move this good or not. That is, he says, not his job. What he knows is that there is a list of things that need to be done before the good can be moved and your neighbour has not completed that list.
In that situation ... who is right? Are you wrong to not only start to ask questions, but to say something like "heck, this is my property. You don't have a right to move potentially dangerous goods across it. We need to stop and think about this?" Now, after you do this, your neighbour has a fit. She starts talking about taking revenge on you, calling you an "enemy," threatening you with harm. Is this going to win you over? Your neighbour thinks so but ... well ... let me as you folks? Would your concerns suddenly disappear because you asked reasonable questions and your neighbour started insulting and threatening you? I would go in the opposite direction. If someone responded irrationally and aggressively to my reasonable questions, I'd start to wonder what they were up to.
This is the issue we face in Canada and with regard to Alberta/BC relations. Does BC have the right to regulate the transportation of potentially dangerous goods across its territory? Provinces certainly already regulate the transport of goods so this is not a new power BC is claiming. The weigh scales you see by the side of the road for big trucks is an example and there are a host of other regulations as well. We could go one step further: does the state not have a responsibility to ensure the security of the person? There is not, in Canada, a constitutional protection for the environment. We can debate the merits of that another day but the fact is that this would be something new and would be a real stretch to argue that it is somehow implied under the analogous grounds principle. Security of the person, by contrast, is guaranteed (you can find it in Section 7 of the Charter). And, even if the province of BC does not have a constitutional obligation to protect the environment, they have the constitutional right to do so if they so choose. IOW, under the division of powers in Canadian federalism, provinces can regulate land within the province.
This is complicated, to be sure, by federal jurisdiction over inter-provincial commerce but that complication does not, as far as I can tell, amount to a trump card. Under Canadian federalism, federal jurisdiction is not superior to provincial jurisdictions. Both levels of government are sovereign in their own areas.
Personally, I think it would be a mess of a court case if it actually went to court. But, my goal is not to look at that. It is to state the following:
- The government of BC is doing nothing wrong in attempting to regulate land and its use within BC
- The government of BC's concerns are legitimate and should be answered. Playing power politics merely makes it seem like the UCP is trying to pass over the issue without addressing it; that is: that there is something they are hiding.
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