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Rachel Notley and Jason Kenney find common ground, sort of … on dubious pipeline posturing

Kinder Morgan Richmond Terminal. Photo: Peg Hunter/flickr

I guess we can understand why Jason Kenney acts like Alberta has all the powers of a sovereign nation.

After all, the leader of the Opposition United Conservative Party was one of former prime minister Stephen Harper's chief henchmen in the Conservative government that ran the federation through the long decade the Alberta tail wagged the Canadian dog.

But what's Rachel Notley's excuse?

The New Democratic Party Premier of Alberta is a lawyer, and a smart one. She understands Canadian provinces don't have jurisdiction over interprovincial operations of "Canals, Telegraphs and other Works and Undertakings connecting the Province with any other …" Even if she didn't, the Alberta government's lawyers would tell her.

Any court would rule interprovincial pipelines in general and the controversial Trans Mountain Pipeline in particular fall into this constitutional catchall for obvious reasons. That question was settled in London in 1867, before Alberta was even a province.

So it seems clear Alberta would be far outside its constitutional envelope if it tried to interfere with the operation of a pipeline to prevent shipment of gasoline to British Columbia to punish that province's government for … ummmm … operating outside its constitutional jurisdiction in exactly the same way.

But Notley and Kenney seem to be in complete accord on this one point at least: If British Columbia unconstitutionally and illegally dares to try to interfere with what goes through a pipeline that passes through its territory, then Alberta can constitutionally and legally interfere with what goes through the same pipeline when it passes through its territory.

Specifically, they both suggest they could cut off supplies of gasoline that flow through the existing Trans Mountain Pipeline to Vancouver if B.C. tries to restrict the volume of diluted bitumen that can go through it, or slow down the current controversial Kinder Morgan Inc. line expansion mega-project that was approved by the National Energy Board last year.

What's wrong with this picture? Constitutionally, that is.

Well, it's far enough off base that, were this not the Age of Trump, we'd just laugh it off. But the American Caligula seems to think he can just make up the law as he goes along, and that idea appears to be contagious.

Andrew Leach, the University of Alberta economics and business professor, was wonkishly tweeting about this on Friday. His commentary, while technical, is illuminating.

His bottom line: "… there isn't a space for AB gov intervention, provincial shipping permits on TM are not a thing which exists and so cannot be revoked, etc."

I believe Dr. Leach is right about this, notwithstanding all the sound and fury his Tweets generated.

Furthermore, Leach said, the bottom line of the bottom line is this:

"Finally, and this is important: if you believe that @RachelNotley or @jkenney can restrict flows on the pipeline, so can @jjhorgan. And @PremierScottMoe. It's open season on NEB pipelines and Alberta loses." This is obviously true.

By the way, when premier Peter Lougheed restricted exports of natural gas from Alberta during his fight with prime minister Pierre Trudeau over the National Energy Program in the 1980s, he did it by reducing total gas exports, within Alberta's jurisdiction, not by somehow cutting off certain products in an existing pipeline under Ottawa's jurisdiction.

Then there is the matter of trade agreements, domestic and international, that govern trading relationships among jurisdictions.

I have always held the cynical view such deals are essentially "corporate rights agreements," designed to privilege the rights of corporate persons over us natural humans.

But speaking of U.S. President Donald Trump, who seems determined to upset the trade agreement applecart, New York Times economics columnist Paul Krugman articulated an alternative interpretation of their purpose Thursday that is directly applicable to the threats emanating from Alberta these days.

"There's a reason we have international trade agreements, and it's not to protect us from unfair practices by other countries," wrote Krugman, who once won the Nobel Prize for Economics. "The real goal, instead, is to protect us from ourselves."

That is, he argued, they don't only make us play by the rules, they restrict the ability of special interests with access to political decision-makers to influence policy to the detriment of other job-creators. In other words, "to limit the special-interest politics and outright corruption that used to reign in trade policy."

Either way, it is not an inconsequential matter that what is proposed by Alberta, and what has been done in the case of the notorious two-week B.C. wine embargo, clearly violates internal trade agreements, and possibly international ones as well.

We can count on it, moreover, that corporations that use pipelines to ship their products will assert their rights under such agreements if provinces violate them to fight intramural trade wars. As a commenter in this space observed recently, how do you think corporations will react if government tries to tell them to whom they can sell their products? This is something both Notley and Kenney also understand, and a state of affairs Kenney has worked tirelessly to encourage, moreover.

None of this is good for the country, it goes without saying. If provinces can interfere with essential supplies to another region because of trade disputes and Ottawa sits on its hands, the argument for being maîtres chez nous will grow stronger.

This is not just true in British Columbia, but in Quebec as well, where a new generation of separatists is no doubt watching with intense interest.

While B.C. seems to have a weak constitutional case for blocking shipments of bitumen from Alberta by using its partial jurisdiction over environmental matters, it seems quite possible Alberta has an even weaker one for embargoing gasoline to B.C. through a pipeline over which it has no jurisdiction at all. This is true whether the threat is made by the NDP or the UCP.

This fight can be resolved by recourse to the courts, or by the federal government. It won't be resolved by belligerent threats by Alberta politicians.

As for the pipeline posturing by all parties in the Alberta Legislature, I'm no constitutional lawyer, so I might be mistaken. But I was an agriculture reporter for many years, so I do recognize the smell of manure.

I'll bet B.C. Premier John Horgan does too.

This post also appears on David Climenhaga's blog, AlbertaPolitics.ca

Photo: Peg Hunter/flickr

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