Inside Politics

Hard advice on the Northern Gateway pipeline

So yesterday's decision by the Americans to can the current version of the Keystone XL pipeline has added new urgency to the Northern Gateway Pipeline process.

If you're an oil sands producer or a member of the Harper government, you may be thinking, "Damn it! We've gotta make sure this pipe gets built! So get outta the way, Greenies!"

If you're a "radical" environmentalist (especially a foreign-backed one, just ask Joe Oliver), you may be thinking it's time to mount the sylvan ramparts and prepare to defend the spirit bear and her pristine slice of Gaia.

But the crux of the problem for the Northern Gateway Pipeline lies nowhere near that sideshow of a fight. It doesn't matter how much money Green Puppet Masters from abroad pour into the measly coffers of Canadian environmental groups.

Nor does it matter how many names or accusations of economic treason the government throws at local tree-huggers.

The real players in this fight are the First Nations along the route from Bruderheim, Alta. to Kitimat, B.C.

I mean, just listen to Tom Flanagan, the Prime Minister's former chief of staff and now a University of Calgary political scientist and frequent contributor on CBC's Power & Politics, speaking earlier this month:

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Here's the transcript:

Q: If you were still working with the PM, would you tell him to tone the rhetoric down, what other advice would you give him?

A: No, the toughness is needed right now. You've got to signal that you're serious about this. No, no, I support that completely. Other advice I'd be giving if I were asked, I'd be ... researching the constitutional powers of the federal government -- declaratory power -- which is in the 92, 10, 13 or something like that... it's been a long time since I taught the course. But the declaratory power which will allow the federal government to declare something to be a work for the national interest. Also a possibility of a legislative settlement of aboriginal claims. Because what you have now in stopping Gateway is not aboriginal land in the strict legal sense of the term. These are rather vague and overlapping claims.

There's a negotiating process that's been going on for 20 years in B.C. that's yielded little result. But the courts have said that the federal government does have the power to extinguish aboriginal title legislatively and to impose a settlement. It would certainly be better to negotiate but the federal government does have some big powers in reserve and I think the department of justice should be burning the midnight oil to figure out just what those powers are.

After he did that interview last week, I just couldn't shake those two pieces of advice out of my head. So I went ahead and burnt a little midnight oil of my own.

First off, what the hell is "declaratory power?" Well, it's section 92(10)(c) of the Constitution Act of 1867. It reads thus:

"Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces."

It hasn't been used much in the last 40 years. Before 1967, the government used it somewhere around 450 times. Basically, it's a law passed by the Feds that allows them take over something that would normally be a provincial responsibility. The provinces aren't big fans of that clause and that's the main reason Ottawa doesn't draw from that well anymore.

Here's what Bruce Ryder -- a constitutional law expert and prof at Osgoode Hall -- thinks of Flanagan's clause:

"It's a valid legal power that Parliament possesses. To use it would raise an outcry and be intensely controversial from the point of view of constitutional convention or practices that have evolved to reflect contemporary understandings of federalism that treat the provinces and the federal government as equal."

Ryder figures Flanagan considers B.C. a bit of a wildcard in this whole Northern Gateway Pipeline business. Using 92(10)(c) is his ham-fisted... but totally legal... way of getting around any potential problems with Victoria. It's Tom's version of how to crush political dissent and coerce provinces.

Jeremy Webber considers the declaratory power "disreputable" -- but again, totally legal. The University of Victoria law prof interprets Flanagan's trial balloon as a baring of teeth.

Now, while Webber knows a lot about the constitution, he knows a whole lot about aboriginal title.

Here's his advice to PMSH ... about Tom's advice:

"I suspect that the federal government would be very well advised to avoid the language of extinguishment."


Well first, there's the legal reason. Ottawa doesn't have the right to extinguish aboriginal anything anymore. Section 35 of the 1982 Constitution took care of that and various Supreme Court of Canada rulings have since reinforced the strength of that clause.

On the other hand, what the government can do is put limits on aboriginal title. Webber thinks it might be feasible to, say, create what amounts to an easement for the passage of the pipeline across Indian land.

Even there, though, it's not that simple. The Harper government would have to do something it generally considers kind of icky: engage in a consultation process. There's also the possibility that PMSH would have to negotiate with the First Nations affected. He might even have to seek their consent.

Secondly, there's the whole roadblocks and in-the-mountie's-face confrontation reason for avoiding "the language of extinguishment" that Flanagan advocates.

This is the reaction I got from Louise Mandell, a land claims lawyer in B.C. who's been in the native law business since the mid-1970s:

"It felt like Sisyphus. We were being thrown back into this archaic, dysfunctional way of thinking which has already been repudiated by the courts. And it made me feel legally combative."

And the B.C. First Nations... how would they react?

"I think, if we were to see that quote come out of the government, that we would see the galvanization of First Nations forces together in such a powerful way."

Remember all this the next time your attention is diverted towards hippies and George Soros. The real opponents the government may have to win over (or defeat, it depends on how Ottawa wants to fight this) are the Native people of B.C. and Alberta.

So there's a little midnight oil burned, Tom. Take it off my Fort Mac tab.
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