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.