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The ultimate own goal

A decisive loss in the Supreme Court is the latest in a series of bad results for the NDP’s fight against Trans Mountain. Many of those were self-inflicted.
Doug Baines /

Ultimately, the NDP painted themselves into a corner. It just took a few years to confirm it.

One John Horgan’s most publicized promises of the 2017 provincial election campaign was to use “every tool in our toolbox to stop the (Trans Mountain pipeline) project from going ahead.”

There was every reason to believe the NDP was sincere about this. They were admirably clear, both about their intention to stop the project, and that they would throw all the kitchen sinks they could find at it.

There were two problems with that. First, it was essentially an illegal threat. Second, it worked – until Kinder Morgan called their bluff.

Let’s deal with the first. Throughout the election campaign, the NDP said they’d “kill” the project – using that word – and that they’d empty the toolbox to do so.

The thing was, they had no legal authority to do so – and, once in government, admitted as much.

In the legislature, Environment Minister George Heyman said cabinet had received legal advice that “stopping the project was beyond the jurisdiction of B.C., and to talk about it or frame our actions around doing that … would be inappropriate and unlawful.”

Yes, this was legal advice – but hardly a top-secret presidential briefing where you learn who killed JFK, which Super Bowls were fixed, and what really happened at Roswell. It was – or should have been – confirmation of a basic, well established, and widely understood aspect of Canadian governance.

The constitution is very clear: interprovincial infrastructure, which has been taken to include pipelines, is federal jurisdiction. Period, full stop. This was not in question, and no amount of magical thinking would have made it otherwise.

Yes, this was legal advice – but hardly a top-secret presidential briefing where you learn who killed JFK, which Super Bowls were fixed, and what really happened at Roswell.

Following up, Heyman said:

“I’m sure the member for Abbotsford West would agree — because the member has served many years in responsible positions in government — that when one comes into office and finds that a campaign pledge, in its exact wording, is not within the legal jurisdiction or responsibility of the government, the correct thing is to look at what underlies it and address it in the best way government can, within the confines of law and jurisdiction.”

In other words, carrying out their campaign promise was illegal. This brings us to the second problem: despite being illegal, the threat worked.

In April 2018 – after spending some $1.1 billion up to that point – Kinder Morgan announced they were halting all non-essential spending on the project, citing “continued actions in opposition to the project” by the NDP government.

This was less than a year after the NDP government outlined its strategy to stop the project: joining every legal challenge possible while denying Kinder Morgan the ability to build on public land – again, despite having federal approval.

At a press conference, Horgan admitted that Kinder Morgan accused the province of harassment:

“(Kinder Morgan CEO) Ian Anderson told me that he believes the project Kinder Morgan has been undertaking has been unnecessarily harassed by British Columbia. I told him that I disagreed.”

“Unnecessarily harassed” was the key phrase. Regardless of how you feel about the project – and while a majority of British Columbians support it, people are allowed to object to it – the simple fact was that it had been approved, and the NDP admitted they knew “emptying the toolbox” to “kill” the project was, in fact, illegal.

Kinder Morgan halted the project. Had it stopped for good there, the company almost certainly would have sued British Columbia, almost certainly would have won, and almost certainly billions of dollars would have been awarded.

Almost certainly, B.C. taxpayers would have been on the hook for one of the largest damages award ever handed out under Canadian law.

Faced with that – and the prospect of building a Banana Republican reputation that Canada was a place where a subnational government can harass away investment it retroactively decides it doesn’t want – the Trudeau government felt it had no choice but to buy the project, thereby all but ensuring it would be built.

At that point, the NDP probably understood Trans Mountain was essentially a fait accompli. But they couldn’t just shrug their shoulders and say they tried. For one thing, the Confidence and Supply Agreement that underpins their minority government with the Greens bound them to continue opposing the project. But also, many activists simply wouldn’t have accepted it. The NDP needed to be able to say they were still pursuing legal avenues, so there was no reason for radical action.

Charitably, the NDP might argue they were taking one for the team.

The Trudeau government felt it had no choice but to buy the project, thereby all but ensuring it would be built.

The only option left was more legal Hail Marys.

This brings us to yesterday’s Supreme Court decision. Essentially, the NDP tried to make the case that sure, fine, the province couldn’t decide who gets to build pipelines, but could control what flows through them – oil, hemp oil, hoppy IPAs, anything.

As CBC’s John Paul Tasker reported, B.C.’s lawyer Joseph Arvay insisted the permits proposed in this latest challenge were not designed to target Trans Mountain, but to protect the environment by guarding against spills (but somehow did not also target oil tankers).

"The only concern the premier, the attorney general and the members of the government have had is the harm of bitumen. It's not about pipelines. They're not anti-pipelines, they're not anti-Alberta, they're not anti-oilsands, they're not anti-oil," Arvay said.

So it’s about oil, but only oil through pipelines (again, tankers were not mentioned), and not about a specific project, just the one that – what a coincidence! – the provincial government has been fighting for two and a half years and explicitly said they’d kill. The Justices all but laughed B.C.’s lawyers out of the chamber.

The only option left was more legal Hail Marys.

Ironically, had B.C. not wildly overplayed its hand, there’s a decent chance the project would have died on its own. There were financial and regulatory headaches, and Kinder Morgan may well have decided to cut and run, giving the NDP and B.C.’s vocal activist base exactly what they wanted. Had that happened, the Trudeau government probably would have been content to shrug and say if the project was viable, the company would have built it, but there’s nothing to be done.

By trying to push Kinder Morgan off the ledge – and take selfies doing it – the NDP forced Ottawa’s hand, and were forced to resort to some embarrassingly contradictory and legal longshots.

And so, here we are today.

Maclean Kay is Editor-in-Chief of The Orca