Wednesday, February 06, 2013

The Hammer

Errol Mendes wonders if the Harper government is bidding its time, waiting to use a constitutional hammer to get the Northern Gateway Pipeline up and running:

Some legal supporters of the pipeline in Alberta are arguing that the Northern Gateway project would constitute a single interprovincial work or undertaking, and so would come under the exclusive jurisdiction of the federal government under sections 91(29) and 92(10)a of the Constitution Act 1867.

This suggests a possible legal strategy for the Harper government — to assert that B.C. cannot use its control over provincial Crown lands under section 109 of the Constitution Act to prevent federal work approved by the National Energy Review Board under the NEB Act, which would be finally approved by the federal cabinet under the changes in the first omnibus budget bill, C-38.

The last two budget bills have prepared the ground:

Evidence of this silent legal strategy based on Section 92(10)a can be gleaned from one of the most controversial aspects of Bill C-45, the omnibus budget bill that altered the Navigable Waters Protection Act (the title of which was tellingly changed to the Navigation Protection Act).

The changes could give major pipeline projects an exemption from a previous requirement that would have forced pipeline proponents to provide evidence that the pipelines would not damage around 99 per cent of lakes and navigable waterways in Canada. There are some remaining protected lakes and rivers still subject to federal oversight (many of them magically seem to be located in Conservative-held ridings, but away from the proposed pipeline route).

Departing Environmental Commissioner Scott Vaughn warns that there are many "gaps" in Canada's environmental legislation -- gaps which the Harper government have made cavernous:

He pointed to Canada’s lack of preparedness for a major offshore oil spill on its east coast and warned of a potential 300 per cent jump in tanker traffic on the west coast.

He reminded us the Deepwater Horizon oil spill in the Gulf of Mexico in 2010 spilled 4.9 million barrels of oil and the clean-up and other costs of civil damages has hit $40 billion.

In Canada, the corporate liability for such spills is $30 million on the east coast, and the liability for the nuclear industry is $75 million and has not been updated in more than 35 years, something Vaughan called “pretty shocking.”

Canadians should not be surprised if the Harper government lowers the hammer to try and get Northern Gateway approved. But, Mendes warns, if they choose that option, "then Canada is in for a period of political and social tumult."

This entry is cross posted at Eradicating Ecocide.


Grant G said...

Good post, war in the woods, well..

Those Supreme Court Justices will much to consider..

Owen Gray said...

Thanks for the link, Grant. You folks at The Straight Goods always tell it like it is.

kirbycairo said...

Harper may, in fact, be contemplating this strategy. However, it is a prospect fraught with serious pitfalls. For one thing, it is pretty clear that BC will soon have an NDP government that will be elected in part because of its opposition to such projects. This means that the provincial government will pull out all the stops to prevent any such projects. This means at the very least they could draw the process out for so long that it would make the whole thing a non-starter. They could simply put up so many roadblocks, literal and legal, that the project will lose its viability.

At a more immediate level, of course, the whole thing is like Harper signing the death warrant of his own government. Even the present fawning media will have a hard time avoiding the obvious conclusion that the Harper government had a long term hidden plan to thwart the sovereignty of the BC government and the will of their people. This would be the most obvious sign to confirm what makes so many people uncomfortable about Harper and his government - to wit: that they are always working on an hidden agenda. Then there is also the risk of generating an actual separatist movement in BC which could not only destroy Harper's actual government but would destroy any hope of him generating a positive legacy in historical terms.

Pitting the Federal government so blatantly against the will of a province on such a high profile and sensitive does indeed sound like something that Harper would do. But it would also be the final confirmation that Harper has crossed that line into megalomania and madness.

Owen Gray said...

Tom Walkom writes in this morning's Toronto Star, Kirby, that Harper seems to be pulling back from his "transformative" agenda.

And, indeed, he may value longevity more than transformation.

It will be interesting to see how much political capital he is willing to invest in Northern Gateway.

the salamander said...

Excellent post as always.. and excellent links as well.

I think it extremely important for all Canadians to take a wider view of corporate, provincial and federal resource goals and strategies evolving in British Columbia and Alberta.

Today I read the first mention I've seen of how many tanker trips into Prince Rupert, Kitimaat and Port Moody may take place in the near future. Certainly any west coast terminus of Alberta's diluted bitumen implies VLCC tanker inbound with diluent to be pipelined west and then outbound loaded with dilbit to China.. ie two transits.

I also read articles about LNG plants and tank farms on the west coast, so that implies specialized LNG carriers transiting the same waters twice.. and sharing the marginal shipping routes and mandated navigational supports that do not exist currently.

2400 tanker 'trips' was the number I read today.. and based on the projected tar sands escalation and BC fracking escalation that number is likely a lowball. Imagine the related pipeline infrstructure to deliver that volume to the coast. Northern Gateway would be just a small portion of the concerns. Thus the broad preliminary legislative stripping of all environmental protection underway.

Remember to multiply tanker 'trips' by two and we look at 4800 transits.. some waiting for high tide to pass the 2nd Narrows of Vancouver, some blundering through the rich marine ecology of Hecate Strait and the Douglas Channel, some working in and out of Prince Rupert

While The Harper Government crouches in its tiny know it all evangelical robo and poll obsessed world.. the State of Washington and President Obama have recognized that kind of marine traffic plus escalating coal and lumber traffic to China may cross international boundaries as well as risk the marine and tourism economy of the State of Washington.

Significantly to anyone but Stephen Harper and his complicit sellouts, American federal and state regulators, biologists and scientists have noted that salmon, orca and most any marine or avian life such as eagles do not pass through Immigration or acknowledge borders. They also note the prevailing winds and currents come out of the northwest.

Who will Stephen Harper run crying to if Obama parks a carrier fleet near the Salish Sea and suggests we rethink our deals with China.. or our shipping routes therof ?
Will he cry to The United Nations, his invisible friend up above? Israel ? China ? Or lock himself in a bathroom on Sussex Drive with his cat and Ray Novak?

The sooner BC gets rid of its excuse named Christy Clark and gets an exemplar and protector in place.. the better.

Owen Gray said...

I can't help but think, salamander, that -- one way or another -- the Obama administration is going to put an end to Stephen Harper's dream of Canada, The Energy Superpower.

There is simply too much at risk if the Americans buy the Harper line.

Anonymous said...

Are we so stupid to think? China will be the only country, bringing their dirty oil tankers to Kitimat? There were other country's looking around the tar sands. One country was Japan.

BC people know all about Harper. Ex BC Liberal Premier Gordon Campbell worked for Harper, and still does. Campbell gave BC to China, during his reign of terror. Harper and Campbell worked together on many projects.

CSIS warned of, China's huge inroads into Canada. BC was specifically mentioned. Campbell had already given BC to Communist China long ago. No-one listened to the people of BC.

Owen Gray said...

When the government of B.C. changes, Anon -- and it certainly looks like it will -- perhaps people will listen.