I’m not sure what’s more bizarre, BC Premier John Horgan’s rationale for asking the BC Supreme Court to rule on whether BC can limit the amount of diluted bitumen flowing on Trans Mountain or Jason Kenney’s reaction to Horgan’s decision to take the issue to court.
Magical molecules
Horgan defended his decision to refer the matter to court by saying: “Resources fall to the province, but trans-boundary issues are a federal responsibility. But once the boundary is crossed…into British Columbia…the government of British Columbia has the jurisdiction.”
Under this logic, diluted bitumen molecules entering the Trans Mountain pipeline in Alberta are under provincial jurisdiction while they flow through Alberta, magically flip to federal jurisdiction for a nanosecond as they cross the border, and magically flip back to provincial jurisdiction when they land on the BC side. (Lawyers are extremely creative people, but God help the poor sucker assigned to draft this notice of reference under the BC Constitutional Questions Act).
BC Premier John Horgan
Rachel Notley reacted to Horgan’s decision by reiterating that interprovincial pipelines fall within federal jurisdiction; but lifted the wine boycott because BC had stepped back from its initial position. Trans Mountain said it was pleased BC changed its mind on the proposed regulations. And the federal government declined to participate in BC’s reference calling it “groundless”.
Magical pipelines
While Notley, the feds and Trans Mountain see BC’s move as a small step in the right direction, Jason Kenney said Alberta had folded under BC’s superior legal strategy. He held a press conference to outline why this was the case.
Kenney praised Horgan’s decision saying BC was playing the long game (chess) while Alberta was playing the short game (checkers). A reporter characterized this as “tough words”; but failed to ask Kenney why BC’s strategy was a good one when legal scholars across the country insist it is wrong at law.
Kenney said the judicial reference was a delay tactic and referred to an old polygamy case that took years to work its way up to the Supreme Court of Canada. It’s true that difficult cases take time to resolve, however, if the legal scholars are correct the trial court should dismiss BC’s case and the appellate court should refuse to hear an appeal. The case would be over before it started.
UCP Leader Jason Kenney
Kenney said Notley should reinstate the wine boycott and add further retaliatory measures suggested by the UCP. No one asked Kenney to explain how the Alberta government could force pipeline companies to shut off shipments to BC when this would cause pipeline companies to violate contracts with their oil and gas shippers and expose Alberta’s largest industry to massive breach of contract lawsuits.
Kenney accused Alberta of backing off and giving BC what it wants; but failed to explain what Alberta could do to stop BC from referring the matter to BC courts under BC legislation.
He called on Notley to demand the federal government step in and act in Alberta’s “economic interest” by invoking Section 92(10)(c) of The Constitution Act and declare Trans Mountain to be in the national interest in order to put an end to any delay tactics.
What? Section 92 (10)(c) gives the federal government the power to pass a law declaring certain “works” which provincially regulated and wholly situated within a province, to be for the general advantage of Canada.
Trans Mountain is not a provincial regulated pipeline wholly situated within the province of BC. It is a federally regulated pipeline situated in Alberta and BC. It is already under federal jurisdiction.
So, what exactly does Kenney want the federal government to do…take a federally regulated pipeline, transfer it to the province of BC and then invoke Section 92(10)(c) to transfer it back to federal jurisdiction?
Kenney’s argument for magical federal pipelines is as loopy as Horgan’s argument for magical molecules crossing the Alberta/BC border.
Magical thinking
Kenney’s press conference would have been newsworthy if it had been a call to action supported by fresh ideas, instead it was a repeat of his desire for an all-party motion that would (1) call on BC to stop this “anti-energy, anti-development” strategy, (2) support a fight-back strategy and (3) call on Justin Trudeau to stop the “trade war” by invoking a federal constitutional power (apparently in the heat of the moment Kenney forgot Notley has already done (1) and (2) and the federal government doesn’t wade into “trade wars” between provinces because Section 92(10)(c) relates to federal/provincial jurisdictional conflicts, not interprovincial spats).
At the end of the day Kenney did what he always does, he filled the air with bafflegab, hoping his supporters would mistake talk for action.
If that’s not magical thinking I don’t know what is.
Susan on the Soapbox 
Well put Susan.
Thanks Ed. I really wish the media would probe a little when politicians (any politicians!) call press conferences. What’s the point of the Fourth Estate if it doesn’t do its job?
Do pipelines have the same status as railroads? CP closed a local road crossing so they could make a longer siding. Our council was quite indignant when they found out it didn’t need their permission.
Keith, not quite. Interprovincial pipelines are federally regulated under the NEB Act (soon to be the Canadian Energy Regulator Act) while federal railroads like CP are regulated by Transport Canada and the Canadian Transportation Agency. Having said federal railroads, like federally regulated pipelines, can override provincial and municipal laws, depending on the circumstances, because federal power is paramount.
PS I sympathize with your council…
his followers eat it up and believe every word.
I agree Janna. It makes me wonder: did they lose the power of critical thought, are they lazy, or is it a bit of both?
You just described the modern media.
Bafflegab and mind-numbing Tweets that defy logic have become the political staples of a severely desperate leader trying to rekindle electoral conservative success, with a less than stellar cast of MLAs. Those who believe anything Jason Kenney says should check his tongue for a notarized stamp before falling prey to his demagoguery.
J.E. you make a very good point about Kenney and his “less than stellar cast of MLAs”. It will be a gong show in 2019 with people like Fildebrandt on the loose accusing the UCP of devouring its own children, the Alberta Alliance party trying to pick up disgruntled Wildrose voters and UCP MLAs trying to second guess Kenney to figure out what they’re allowed to say.
I predict a steady flow of bozo eruptions.
Talking about Jason Kenney is quite a waste of time. He does not have a clue of what he is talking about.
The fact of the matter is that both him and Rachel Notley want to increase oil exploration. In fact they are both doing what the Oil companies refuse to do because they do not want to be in the limelight. Jason even wants to increase coal mining in a time when for example Wind Energy is already cheaper to build and operate. The latest contract the Government signed was for 3 cents a Kilowatt. Not sure what it is the Jason likes about coal other than the fact that he just wants to be against the new technologies because he does not even understand them.
Rachel Notley on the other hand believes that increasing the tailing pounds is worth to get more money that will be funneled to the Oil companies coffers anyway because the problem is not more the real problem is that we created the idea that the oil belongs to the Oil companies and they give us the rests of their profits.
Just a note to Rachel Notley and Jason Kenney – the tailings pounds are now 220 Square Kilometers – it is an area bigger than Greece. Who is going to clean them? The same people that are cleaning the abandon nuclear sites in the US? The same people that are cleaning the plastics in the Oceans?
We are deluding ourselves if we think that we will get away with this idea without consequences. Who cares about the BC wine? The issue is way more damaging to us than to BC. Mr. Horgan is actually protecting us more than he is against us. Justin Trudeau just wants more money in the federal coffers. Furthermore after his last trip to India I am not sure if he is our prime minister or India’s.
I am sorry I made a mistake with the area calculation of Greece 🙂
the tailing ponds are 220 Square Kilometers.
My apologies
I was thinking more in terns of places like Lichtenstein or Monaco.
Lichtenstein is actually 160 square Kilometers.
Carlos, normally I’d agree with you that talking about Jason Kenney is a waste of time, but I do it anyway because I want people who aren’t in his base to understand how much he’s misleading Albertans, especially since the media just parrots what he says without applying an ounce of critical analysis. Your point about expanding oil sands production is well taken. I think Notley is trying to keep the industry (and the fossil fuel economy) going until enough jobs are created that we can transition into renewables. It’s not easy, especially in Alberta! Also she needs to stay in power, if she’s defeated in 2019 we’ll be stuck with Kenney and he’d be a nightmare.
PS The last statistic I found about reclaiming the tailings ponds said that of the 220 square kilometers, ONE SQUARE KILOMETER had been reclaimed…ONE!
I am sorry about the ‘waste of time’ comment but it was not in reference to your post but more because I think the man is really useless – I sincerely do
Carlos I agree with your assessment of Kenney, notwithstanding all his talk he has yet to propose a creative, innovative or new idea for moving Alberta forward in these changing times. He’s not a leader.
It never ceases to surprise me that more rigid ideologues, whose first defense is usually logic, end up being the most illogical of all. Of course, they just dismiss or ignore the facts that do not fit their arguments. Kenney may have at one time been a deep thinker, although not very open minded, but he is now sort of a sound bite guy, who tries to say whatever sounds good, even if it doesn’t stand up to scrunity. Heck this is Alberta, and Conservative politicians have been doing that for years – I suppose old habits die hard. Some in the media who are too lazy or fearful of angering a potential future “king” still seem to let them get away with with it.
As most Canadians already know, resources are a provincial jurisdiction, but transportation of resources beyond the province they are produced is not. I really don’t think the current Federal government needs or wants lessons on the Constitution in particular from the former Conservative Federal Cabinet Minister and career politician Kenney whose government often seemed to find the constitution, specifically the charter of rights, an obstacle or an impediment for their plans and ideas.
At least the BC government could be excused for being preoccupied with very short term political concerns, as it has a minority government kept in power by 3 Green MLA’s. Mr. Horgan may not really want a protracted legal battle here, just one to go on past the next BC election. Fortunately in Alberta we can take a more united approach not as focused the short term. It might not be to his immediate political advantage, but it would be a more statesman like thing to do for Kenney.
Excellent comments David, particularly the comment about ideology. In the absence of policies one would expect Kenney and the UCP to fall back on ideological first principles, however they continue to trip over themselves looking for ways to attack the progress Notley is making. They attacked her climate leadership policy, only to have Trudeau come out and say it’s the reason why Trans Mountain was approved. They attacked Notley for not defending TM, and when she got into a battle with BC over it they said it wasn’t enough and/or it was an NDP conspiracy to make the AB and BC NDP look good (?). They attacked her for not working with the energy industry and when she announced the energy diversification plan (that CAPP likes) they said it was a bad idea.
They’re really good at criticizing, but really bad at coming up with innovative ideas of their own. I guess that’s what we should expect from a party that thinks our best years are behind us.
To be clear, Kenney has said he wants to bring back the Alberta Advantage. Clearly he’s on the right track as $9-10b deficits are unsustainable.
Glad to bump into your blog. with regards to Kenney; he is the worst possible thing that could possibly happen to Alberta. His core support is Social Credit; these power brokers are far right and lost in an era from the 30’s…1930’s. They tell Kenney what his mandate will be, what policies to pursue and what to say on a day to day basis. Kenney is nothing more than a talking bobble head. If you detect loathing on my part you underestimate my disregard for the ill-educated, bible school drop out who was the most surprised person in Canada when first elected as a Reform candidate. Kenney served the most ignoble career of any MP in Canadian history as gadfly whose foremost slobbering was reserved for Harper who tried him out in two ministerial posts (one, a seriously difficult position) and, fired him from both. Kenney established credentials as an incompetent bully in both ministerial postings.
God help us here in Alberta if Kenney get entrenched as Premier…even as a talking puppet of the Social Credit diehards his skill level at bungling will come to the fore and be ruinous for the rest of us.
Rob, welcome to The Soapbox. I agree with your assessment of Kenney. One has to wonder why the man who bills himself as the savior of the “conservative movement” ran away from the opportunity to take over from Stephen Harper when he had the chance. Perhaps he thought he stood a better chance at the provincial level in the most conservative province in the country. He made a serious miscalculation. The recent Mainstreet poll shows shows Kenney dropping from 53% to 38% with women and from 65% to 39% with the 18 to 34 year olds. This shows his far right rhetoric is seriously out of step with Albertans (other than those still firmly wedged in the 1930s).