Midweek podcast: Ottawa's legal options on pipelines and what Scotland can learn from Quebec
CBC Radio | Posted: April 11, 2018 7:19 PM | Last Updated: April 11, 2018
The current legal options being floated to resolve the inter-provincial dispute over the Trans Mountain pipeline expansion aren't likely to be of much help to the federal government, according to a constitutional law expert.
Referring the issue to the Supreme Court for an answer and using declaratory powers to claim jurisdiction over the pipeline are two ideas that have arisen since the federal government has been searching for solutions to the battle between British Columbia and Alberta.
However, neither really addresses the problem, Carissima Mathen, vice dean of the University of Ottawa's faculty of law, told The House.
Opposition from British Columbia — including a threat to pass regulations that would prevent additional oil flows through the province — spooked Trans Mountain investors enough that Kinder Morgan called a halt Sunday to all non-essential spending on the project.
The federal government has vowed to build the pipeline, but has also remained tight-lipped whenever asked what actions are being considered.
Taking the question to the Supreme Court could backfire since the law states the federal government already has jurisdiction of the pipeline, because it crosses provincial borders, Mathen said.
"The Supreme Court generally doesn't like to be used as a political tool to settle a dispute of this nature."
The court could choose not to answer the question, or raise other issues with the request instead.
"It could open the door to a set of arguments the federal government doesn't want to get into right now."
Using declaratory powers to state that the pipeline is in the national interest is also "redundant," Mathen explained, since the government very clearly has legal right to deliberate on the project — not B.C.
"It doesn't make sense to declare something to be yours which already is under your jurisdiction."
Because things are clear from a constitutional standpoint, referring questions to the Supreme Court or using declaratory powers makes the government look unsure of how to act, she added.
"You could be opening up a real Pandora's box in terms of a quite messy constitutional situation."
What Scotland is looking to learn from Quebec
Scotland is looking to Canada for hints on how to deal with political issues, including sexual harassment in Parliament and separatist sentiments.
Ken Macintosh, the presiding officer of the Scottish Parliament, is in Quebec this week to discuss those topics, as well as muse best practices for parliamentary reform with the National Assembly.
"I hope they're actually seeing it as a sign of mutual friendship between our two countries," he told The House.
"When we were establishing devolution we looked to Canada, and looked to Quebec in particular, for the way that we could make devolution work."
Macintosh mentioned issues like the slow loss of the Gaelic language and Brexit are causing Scotland to look to Canada more and more — given our experience with two official languages and referendums.
"All these issues are actually common to parliaments across the board and we're looking to each other to learn best practices."
But the similarities go beyond that.
Scottish Parliament has been dealing with allegations of sexual misconduct, similar to in Canada.
They're now working on setting up new procedures and adding diversity training, Macintosh said.
"As we move forward, we want to not just address this in the spotlight of the aftermath of Harvey Weinstein and #MeToo, but actually a long term commitment to equality."