Thursday, May 24, 2018

Trans Mountain Thursday - The Rule of Law and Cooperative Federalism - For Some, Just Not For All.

The Tyee again tackles TTM (Trudeau's Trans Mountain pipeline) with two reports. Stepford Liberals, and your ranks are legion, are not going to like this.

Will Horter explores how the "rule of law" is used by the pipeline proponents but only when that serves them. When it gets in their way, it's a different matter, they've never heard of it. And, yes, that goes for the Dauphin - in spades.
I can’t believe I’m writing this, but it appears that our New Age prime minister has embraced the post-truth era quicker than anyone could have imagined. Quite simply, he is imitating U.S. President Donald Trump in his handling of Kinder Morgan: tell a big lie and repeat it frequently. Attack any opponents as anti-prosperity, and their words as “fake news.” Unfortunately for Canadian democracy, the cynical “big lie” propaganda technique is now becoming the go-to-procedure in Ottawa for all things Kinder Morgan.

Building on a few other whoppers — Kinder Morgan will lower gas prices, Canada needs new tar sands pipelines in order to address global warming, Justin Trudeau’s promise to ensure a renewed, nation-to-nation relationship with First Nations — we now discover the biggest lie of all: Trudeau cites the “rule of law” in support of his claim that his government’s Kinder Morgan approval was a science-based decision made after carefully weighing all the evidence. Credible reports based on newly available documents and government staff whistle-blower accounts indicate that Trudeau’s approval of Kinder Morgan was purely political, and worse, “rigged.”
The hypocrisy of the “rule of law” crowd has a long history in British Columbia’s oil tanker and pipeline struggles. Not so many years ago when Stephen Harper was ruling the roost in Ottawa, we began to the hear the “rule of law” touted in support of Enbridge’s proposal to bisect British Columbia with a pipeline to Kitimat, where bitumen would be pumped into oil tankers for export to China. Pro-Enbridge cheerleaders touted the National Energy Board’s recommendation and the Harper cabinet’s approval. “The issue is already decided, they said, “opponents are ‘radicals’ threatening the economy and Canadian democracy.” 
As then, so today. Until the new allegations of NEB rigging surfaced, Kinder Morgan’s promoters often referred to the “rule of law” as their rationale for moving ahead quickly with the Texas company’s controversial oil tanker-pipeline proposal.
But what exactly do they mean? 
The dictionary defines the rule of law as: “the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced.” 
Canada is not a dictatorship. Just because some handpicked board rubber-stamps something, or princely Trudeau (or the bully Harper before him) wants something, it doesn’t mean we all have to march in step to make it so.
...The shortcuts and flaws in the NEB review of Kinder Morgan are well known. The Trans Mountain NEB review is haunted by the exclusion of many affected people and groups, the limited terms of reference, the lack of cross-examination to test the evidence Kinder Morgan submitted, the exclusion of relevant evidence (such as scientific studies concluding bitumen sinks if spilled), the expedited hearing schedule and conflicts of interest. 
Even Trudeau and the Liberal Party of Canada (before they came to power) admitted the NEB’s review of Kinder Morgan was fundamentally flawed. Much has been made about then-candidate Trudeau’s statements that Kinder Morgan would not be approved, and the review would be redone if he became prime minister. However, a more damaging statement has been overlooked: the follow-up letter by Anne Gainey, then president of the Liberal Party of Canada, wrote just before the election responding to questions put to Trudeau about his statements. Gainey wrote: “regarding the Liberal Party of Canada’s position on the Kinder Morgan Pipeline. As you are aware, Justin Trudeau and the Liberal Party of Canada have serious concerns with the process surrounding the approval of this pipeline. We cannot support the pipeline in its current form because the Conservatives have not ensured environmental, community or stakeholder consent. We agree with what you, and Canadians across the country, have been saying for a long time: Canada’s environmental assessment process is broken.”
A Rigged Process. Did Trudeau Break the Law?

If Trudeau’s false promises weren’t enough to threaten the legitimacy of the federal Trans Mountain approval process, we are now hearing credible reports — with documents and several government staff whistle-blowers — describing how Trudeau’s government instructed staff to put their thumb on the scale of justice. Reportedly, Erin O’Gorman — the then-associate deputy minister of the major projects management office — was instructed to “find a way to approve Kinder Morgan.” O’Gorman then reportedly told various departments to do just that. In other words, it appears Trudeau betrayed not only his “Sunny Ways” promises, but violated a host of laws by predetermining the Kinder Morgan approval before all the evidence was in, or consultations with affected First Nations were completed.
...Ironically, when all the evidence is in, it is Kinder Morgan’s cheerleaders, not opponents, that actually are undermining the rule of law. Their get-an-approval-by-any-means-necessary approach — by rigging review processes, ignoring conflicts of interest, trying to pre-empt review by courts, generally putting their thumb on the scales of justice, and using “big lie” propaganda techniques — is the real threat to the rule of law.

Christopher Guly discusses how Trudeau invokes "cooperative federalism" when that suits him but only when it suits him. Sort of like the "rule of law" farce.

The one major certainty regarding the fight between the British Columbia government and its Albertan and federal counterparts regarding Kinder Morgan’s $7.4-billion Trans Mountain pipeline expansion project is that the cross-jurisdictional dispute is unprecedented in Canadian history.

...B.C. is challenging Alberta’s Bill 12 in the courts, and has submitted a reference to its own appellate court to determine whether or not it can regulate increases in the flow of diluted bitumen that crosses its borders. Ottawa, as an intervenor in that case, will argue federal authority regarding interprovincial pipelines that serve the national interest — a position Saskatchewan, which also wants to join the BC Court of Appeal reference, supports too.
 B.C. won’t get its answer before the May 31 deadline Kinder Morgan set to receive a federal government assurance that its Trans Mountain project could proceed unimpeded. 
The Federal Court of Appeal has also yet to release a ruling on a case launched by seven Indigenous groups challenging Ottawa’s assertion that it properly consulted First Nations. But a decision could be further delayed after the Tsleil-Waututh Nation filed a motion earlier this month asking the court to order the federal government to release uncensored copies of documents cited in a recent National Observer investigation that revealed bureaucrats were ordered to approve the project.
Last month, Trudeau also promised, but has yet to pursue, “legislative options” to “assert” federal jurisdiction over Trans Mountain. But even if he did and introduced legislation — which at this point could not pass Parliament by month’s end — it would not “foreclose First Nations, British Columbia or anyone else from seeking a judicial review of it,” argues Jason MacLean, a former Wall Street corporate and commercial litigator who teaches environmental law and natural resources law at the University of Saskatchewan in Saskatoon.
But he points out that the political logjam concerning Kinder Morgan’s pipeline is not the only constitutional conundrum facing the federal government. 
The Saskatchewan government intends to file a reference with the province’s top court challenging the constitutionality of the federal carbon tax, and in so doing, is taking an opposite position to the one it will use in the BC appellate court supporting Ottawa’s jurisdiction over the pipeline.
“What is so ironic is that the federal government will defend its carbon tax relying on the doctrine of cooperative federalism, which is how it was designed — to give provinces the ability to tailor the price to their own economies, such as through a tax or a cap-and-trade system,” says MacLean. ...Yet the federal government is trying to jam a pipeline down B.C.’s throat through unilateral federal action. The contradiction couldn’t be more delicious for a law professor. But those disputes will ultimately have to get settled either in the courts or at the ballot box — or both.”
...MacLean says that if a court can rule that Ottawa also has jurisdiction over a mine located within a province’s borders, “it strains the mind to understand how a major oil pipeline project that has ecological, First Nations and climate-change implications is going to be solely within the federal government’s purview.”
Trudeau has done a wonderful job of proving that there's one law for the rest of Canada and another, very different law for British Columbia. He's also done a wonderful job, quite unintentionally, of revealing the real Trudeau behind that charming facade.

Will Horter has written something that I couldn't bring myself to write although the thought has crossed my mind - how Trudeau, like Trump (and Harper before them), has routinely resorted to the "Big Lie" and smear tactics against those who see through him. He's gotten himself in too deep this time. Gee I'll bet he's missing Christy Clark.

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