Decision on Energy East up to Ottawa, not Quebec mayors: Dwight Newman in the Telegraph-Herald

The case law is clear, says Dwight Newman in the Saint John Telegraph-Herald: The final decision on the controversial Energy East pipeline rests with Ottawa.

By Dwight Newman, Jan. 28, 2016

The residents of Saint John, like those of Alberta, see the Energy East pipeline’s real economic value to Canada.  Montreal Mayor Denis Coderre sees only risks to his own city.

Canada has always faced the prospect of some local interests opposing major national infrastructure projects.  That is why the constitution puts interprovincial transportation projects in the sole jurisdiction of the federal government: it can make decisions based on the overall national interest.

A long line of court cases interpreting the constitution recognize that interprovincial pipelines are a mode of transportation. The case law has also long been clear that provinces cannot exercise their jurisdiction in ways that interfere with interprovincial transportation.  The question of whether to approve a major pipeline project like Energy East is an issue of national infrastructure, and it is a decision to be made based on the national interest.

The constitution puts interprovincial transportation projects in the sole jurisdiction of the federal government: it can make decisions based on the overall national interest

Some legal academics may try to tell us that this has changed because of complex changes in a doctrine called “interjurisdictional immunity”.  A recent trial court decision in British Columbia appears partly to have bought into those theories.  It remains subject to appeal.  These professors’ academic theory and that court decision are out of step with many other decisions.  And they are out of step with the fundamental principles of the federal government being able to make decisions on national infrastructure projects, as is necessary for the country to function.

It is of course fully open to Mayor Coderre to offer perspectives before the National Energy Board (NEB), and he can responsibly represent his constituents by doing so.  As an independent regulatory board, it is the duty of the NEB to consider the various impacts of the projects it approves.

Although we have seen some pipeline opponents try to smear the integrity of the NEB, anyone who actually watches its operations knows that it is engaged in serious work to make responsible decisions. Its approval of pipeline projects is based on conditions that assure world-class safety and environmental standards of which Canada can be proud.

What is not open to Mayor Coderre, or the premiers of various provinces, is to try to interfere with a national decision or to try to get the Prime Minister to politically meddle in the decisions of an independent tribunal.  The decision, ultimately, is within the constitutional parameters of the federal government, and it has set up a fair, independent process precisely so that decisions are made in a principled way rather than based on local politicking.

These constitutional principles were the bases on which Canada was built.  Had every province or municipality felt free to interfere with every interprovincial transportation project at will – or even to threaten it with the sort of unconstitutional “conditions” we have seen some try to impose – there very possibly would have been no national railways and no Canada to speak of.

In many ways, Canada defies geography.  Though reaching boldly to the Arctic, much of its existence is a long strand just north of the American border.  It wills itself to existence partly through the national infrastructure projects that link it economically together.

Canada is also a country of great diversity, and broad spheres of provincial jurisdiction respect this diversity.  There is a careful balance in the constitution.

Provinces that want their provincial jurisdiction respected in future play a very dangerous game if they do not respect well-established principles of the constitutional division of powers.  If the Mayor of Montreal is not willing to respect the jurisdiction of national decision-makers, why should other governments respect Montreal’s or Quebec’s jurisdiction?  Just to be clear, I would be the first to firmly defend Quebec’s areas of jurisdiction, but I defend also the areas of national jurisdiction that the constitution has defined.

The federation has a rule book so we can all live together in all our diversity.  Canada is a complicated place, and we need to respect the founding principles of the constitution that holds us together.  These principles imply right now that the NEB has a job to do, and local politicking must not interfere with it.

Dwight Newman is a 2015-16 Visiting Fellow in the James Madison Program at Princeton University, Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan, and Senior Fellow of the Macdonald-Laurier Institute.  He has published widely on constitutional law, including a book on natural resource jurisdiction.