Rob Breakenridge: On energy projects, Carney can’t avoid tough calls
Canada won't become an energy superpower if the prime minister will only back projects that no one opposes.
By: Rob Breakenridge
Alberta’s premier seems determined to convince her B.C. counterpart of the merits of a new oil pipeline running from Alberta across B.C. to the west coast. At least twice last week Danielle Smith spoke of her intent to win over David Eby.
However, not only is it unclear just how tall an order that is, it’s also unclear to what extent it is even necessary in the first place. As to the former, only Premier Eby knows for sure. And for the latter point, it’s actually Prime Minister Mark Carney who’s being most unhelpful here.
Carney has talked a good game about the need for urgency in building major projects that are in the national interest and that will bolster Canada’s economy. How far is he prepared to go to make it happen? Or, to put it another way, how easily will he fold in the face of resistance?
For what it’s worth, the B.C. premier is insisting that he’s no obstacle here, but rather that it’s the lack of an actual proposal that is preventing this idea from moving forward. That may be about to change (more on that shortly), and, if so, we’ll see what his response is then.
Whether Eby’s blessing matters is the far more interesting and significant question, though. There’s no doubt that if Danielle Smith and David Eby came out tomorrow and jointly announced their enthusiastic support for a new pipeline project running across their two provinces, it would be an easy decision for Ottawa to grant that approval. Ultimately, though, it’s Ottawa’s blessing and approval that really counts.
Unfortunately, the prime minister is sowing confusion and uncertainty around this point. At his June 6th news conference announcing Bill C-5 (“An Act to enact the Free Trade and Labour Mobility in Canada Act and the Building Canada Act”), Mark Carney again indicated a willingness to consider new pipeline projects, but only if consensus exists.
The prime minister made it clear that he “will not impose a project on a province,” and even suggested that his hands would somehow be tied, stating that “if a province doesn’t want it, it’s impossible” and that “it is not the choice of the federal government.”
And if it wasn’t clear enough, Carney declared that “we must have a consensus of all the provinces and the Indigenous people.”
Well, no. That’s not how this works.
It’s not just the prime minister who has muddied the waters. Newly appointed Justice Minister Sean Fraser issued an apology last week after he (accurately) pointed out that First Nations don’t have a veto, either.
There is very much a duty to consult that exists for the federal government, and the courts have made that abundantly clear. Fraser’s comments last week noted the need for “a very deep level of engagement and understanding of the rights that may be impacted,” but that “it stops short of a complete veto.”
The following day, however, Fraser backpedalled, stating that his comments “caused hurt and potentially eroded a very precarious trust that has been built up over many years to respect the rights of Indigenous people in this country.”
Again, it’s understandable that buy-in and consensus from all parties would be the preferred outcome. The prime minister certainly has the prerogative to choose or prefer projects that enjoy unanimous support. But let’s be clear: that is very much a choice.
It’s also a policy choice that’s fraught with peril. The pursuit of consensus is noble, but advertising it as essential lays out a pretty clear roadmap for scuttling any major project. If the federal government is going to fold at the first sign of resistance, what kind of confidence can there be in the certainty of a green light? This also sends a less-than-ideal message to frustrated Albertans, namely that one of the clear advantages of being in Confederation cannot be counted upon.
It’s also disingenuous for the prime minister to frame this as something other than a choice. When it comes to the consent of provinces and First Nations, the courts have laid out in pretty clear terms what’s expected of the federal government and the extent of Ottawa’s authority.
For example, there was a B.C. premier not that long ago who vowed to use “every tool in the toolbox” to stop the TransMountain Pipeline expansion (TMX), but those attempts were stymied by the courts, which found that B.C. was trying to legislate in an area that is exclusively federal jurisdiction. In other words, B.C. wasn’t obligated to support TMX, but they couldn’t block it.
Similarly, TMX encountered opposition and concerns from various Indigenous communities and groups, and Ottawa’s insufficient consultation nearly scuttled the project (the same sort of issues that led to the courts quashing approval of the Northern Gateway pipeline). That led the federal government to conduct a second round of consultation.
A key federal court decision in 2020 upheld that approach, ruling that "although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try and veto it."
That follows the principle laid out in a landmark 2004 Supreme Court ruling, where the court noted that “...this process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. Rather, what is required is a process of balancing interests, of give and take."
For now, all of this remains hypothetical. That could soon change, however. Alberta Premier Danielle Smith said recently that there are plans in the works to present the prime minister with a proposal for a new pipeline running from Alberta to the Port of Prince Rupert in B.C. The proposal would have private backing, but Smith has suggested that the trade-off could be the pipeline being built in tandem with the proposed Pathways Alliance carbon capture and storage project.
Yes, it would be helpful to convince B.C. of the benefits of such a project. And yes, it would certainly be critical to engage in meaningful consultation with First Nations about the potential impact of such a proposal and to find ways of involving those communities so that they have a stake in the project’s success.
But at the end of the day, it falls to the prime minister and his government to determine whether they are serious about making Canada “an energy superpower" and building projects that will have a significant tangible benefit to Canada’s productivity and economic strength. Not to mention the sort of project that will diversify our markets and reduce our reliance on what seems to be an unreliable American partner.
To be sure, this would need to be done right. But there’s nothing stopping the prime minister from making it happen. He can be the consensus-builder if he wishes, but he’s still the decision-maker.
Rob Breakenridge is a Calgary-based podcaster and writer. He can be found at robbreakenridge.ca and on X (Twitter) @RobBreakenridge and reached at rob.breakenridge@gmail.com
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Thank you for finally getting to the meat of the issue. We cannot succeed as a country if we operate as 10 provincial countries and 200 indigenous countries. Not only can we not succeed in that environment, we aren't even really a country at all in that environment.
In the years since TMX was approved over the objections of one indigenous band (and over the objections of the then-Premier of BC) as Mr. Breakenridge (edited to correct spelling) describes, Parliament has passed legislation to “enshrine” UNDRIP. Retired lawyer Andrew Roman says it doesn’t change any individual law until that law is amended by Parliament to take UNDRIP’s implications into account. No law has been so amended.
However, nothing stops the Supreme Court from deciding a case *as if* UNDRIP modifies the relevant law being cited in the case before it. It could simply say, “Yes, the plaintiff — it might be just one band, or even just one guy—can block this project from happening without its/his consent because this is how we interpret Parliament’s intent when it legislated to enshrine UNDRIP.”
The progressive activist Supreme Court loves to discover group rights and Parliament’s passage of UNDRIP might offer it a golden opportunity to discover a (huge) new one. Effectively Parliament and Cabinet could be made subordinate to an unelected, race-restricted oligopoly that can veto anything that “affects” them.
And short of amending the Constitution to emasculate the Supreme Court, there won’t be a damn thing Canadians can do about it. You can see why Prime Minister Carney is hoping for consensus on everything....or rather why he wants to do nothing where he can’t get consensus.
Since in most cases indigenous vetoes could be bought off with enough money, projects could still get built but much of the return on investment would be siphoned off as rents to every band who wanted to play.