Provinces have every right to set conditions on pipelines

By Bruce McIvor

Beginning with the British Columbia government’s position on Enbridge’s Northern Gateway project, provincial governments have announced conditions, including meaningful consultation with First Nations, which must be met before they will allow pipelines carrying petroleum products from western Canada to be built in their provinces. Ontario and Quebec recently announced similar conditions for Transcanada’s proposed Energy East Pipeline.

In a recent essay in the Toronto Globe & Mail, Prof. Dwight Newman of the University of Saskatchewan argues that, like the transcontinental railways of the 19th century, these pipelines are projects of nation importance within the federal government’s exclusive jurisdiction. According to Newman, Ontario’s and Quebec’s conditions on the Energy East Pipeline are “shameful” and “unconstitutional”. The other provinces, he says, have no right to impose conditions on pipelines which will allow Alberta and Saskatchewan to get their products to foreign markets.

Newman’s argument is surprisingly out of touch with the legal and political reality of modern Canada. It is based on the discredited ‘watertight compartments’ theory of federalism where the federal and provincial governments exercise their legislative powers without regard for each other's interests. Rather than this imperial version of Canada where projects of supposedly national importance override minority rights and local concerns, the Supreme Court has endorsed cooperative federalism where the federal and provincial governments work to reconcile differences for the common good.

Newman’s attack on provincial powers is particularly ironic given that at the Supreme Court Alberta and Saskatchewan have led the legal charge against federal monopolies and in support of cooperative federalism. The most recent examples are this summer’s Tsilhqot’in and Grassy Narrows Supreme Court decisions. With urging from the provinces, including Alberta and Saskatchewan, the Court decided that provincial laws can apply to Aboriginal title lands and Treaty rights, which up until then had been understood to be under exclusive federal jurisdiction.

The Grassy Narrows decision is particularly relevant in the context of the Energy East Pipeline. In Grassy Narrows the Supreme Court confirmed that the provinces are fully responsible for ensuring that Treaty rights are respected and constitutional obligations to Aboriginal peoples, including the duty to consult, are fulfilled. By insisting on meaningful consultation with First Nations as a condition of the Energy East Pipeline proceeding, Quebec Premier Couillard and Ontario Premier Wynne are not, as Newman accuses them, “playing a dangerous game”—they are signalling their governments’ intention to fulfil their constitutional obligations to Aboriginal peoples.

Instead of being led astray by Newman's anachronistic vision of a federal government overriding local interests and minority rights to build projects of national importance, Alberta Premier Jim Prentice and Saskatchewan Premier Brad Wall should follow Ontario’s and Quebec’s example and commit to respecting Aboriginal rights and Treaty rights.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

Download Bruce's bio

Contact Bruce

Follow Bruce on LinkedIn and Twitter 

For more First Peoples Law analysis, visit our blog

Sign up for our Aboriginal Law Report