No one noticed it at the time, but when Justin Trudeau took office he set in motion one of the grandest Rube Goldberg machines in the history of this country’s politics. It has been running more or less silently in the background, until Kinder Morgan’s announcement last week that they were suspending construction on the Trans-Mountain Pipeline extension. Suddenly, all the moving pieces are visible, and we can see a trap converging on the prime minister. Whatever the outcome of the pipeline drama in the Canadian Rockies, Trudeau has likely set himself up to lose.
In the event that you do not eat, sleep, and breathe interprovincial trade disputes, here is a short recap of the situation so far. The TMX pipeline is the last remaining Canadian bitumen pipeline project left on the dockets; Energy East has been scrapped and the ultimate fate of Keystone XL is out of Canadian hands. TMX is the last route that can be locked down to get Alberta bitumen to Canadian tidewater before the 2019 federal and provincial elections.
After the election in British Columbia last year, John Horgan formed a minority NDP government with support from the provincial Green Party. Both parties campaigned on obstructing the pipeline to a greater or lesser degree, and Horgan so far has been true to his word. His government first moved to stall TMX last month, when it threw up new regulatory questions around port management and shipping that Kinder Morgan was not immediately prepared to meet. This prompted an escalating trade war between the country’s only two NDP governments, which began with Alberta boycotting BC wine.
It culminated this week with Bill 12, a law that concentrates the power to control and coordinate petroleum exports in the hands of Alberta’s natural resources minister with little political oversight. This is ostensibly to throttle BC with high gas prices until they cave to Alberta on the pipeline. Say what you will about Rachel Notley or the hill she’s picked to die on here, but credit where it’s due for getting Jason Kenney to endorse the Alberta state seizing the commanding heights of petro production. (Until it is inevitably struck down in court, anyway.)
Angst over this pipeline and spilled far beyond the west coast. The Trudeau government has already declared that the TMX pipeline is in the national interest and that “we will get this pipeline built.” Ottawa is asserting that because the pipeline is an interprovincial (and international) trade issue, it has the final constitutional jurisdiction to push everything through. BC, meanwhile, is arguing that they have their own constitutional rights to protect their coasts and people, and they are planning on bringing everything forward to the courts for reference. They will be joined by Quebec, who are wary about both bitumen spills and the threat of an overreaching federal government.
As it stands, everyone involved is shouting at the other parties about constitutions and the rule of law. In reality, the ‘constitutionality’ of most of this stuff is up in the air. The precise subtleties of Section 92A of the Constitution Act, 1982 have yet to be worked out by the courts, but most or all of those decisions will come long after Kinder Morgan’s May 31 deadline. We are working in a grey space where political struggle and not legalism is going to call the shots.Unfortunately, this is likely bad news for Justin Trudeau. It’s not clear that he understood what he was signing up for when he committed the his government to the pipeline. There are only two outcomes here, and both are suboptimal for the Liberals.
A) THE PIPELINE GETS BUILT
Hooray. The national interest has triumphed and it’s morning in Canada again. Justin Trudeau’s best case scenario.
It’s important to note that the most significant constitutional rights in play here are not necessarily provincial vs federal rights. They are primarily Indigenous rights. First Nations with “potential or actual Aboriginal title” in the area of development have a constitutional right to be consulted and, if necessary, accommodated before any work can take place. While a number of First Nations have signed off on the project in the anticipation of economic benefits, there are other Indigenous nations on the pipeline route disputing whether or not they were properly consulted (let alone accommodated) during the TMX approval process. Those court challenges promise to drag the project out far beyond its timeline.
It’s also worth noting that 518 km of the pipeline will pass through the Secwepemc First Nation, an unceded Indigenous territory. The Secwepemc have a long history of resistance to incursions on their land, including a month-long standoff with RCMP in 1995 at Gustafsen Lake. The nation has already released a report suggesting that building the pipeline could trigger “the Standing Rock of the North.” While there are lots of failures on the Reconciliation file that Trudeau could probably skate away from, photos and videos of Canadian soldiers removing or pacifying Indigenous opponents of a bitumen pipeline is probably not one of them.
There is also the question of who will actually build this thing. Both Notley and Trudeau have committed to using “money and legislation” to ensure that Kinder Morgan’s investments will be protected. In all likelihood, this will mean a federal subsidy for the private company, effectively socializing all the risk of the project while ensuring the gains from it remain private. This is not surprising since “give more money to business” seems to be Trudeau’s only development strategy (see: the “Infrastructure Bank”). And given that the economic viability of new pipeline expansions is questionable, the cynic in me believes that what is really going on is Kinder Morgan walking away from an unprofitable project and using environmental/protest concerns as cover, with a bonus of suing Canada if things go south.
(In the Darkest Timeline, the Liberals’ determination to build the pipeline means they nationalize it, causing the NDP to implode over whether or not they are for or against state-owned public infrastructure operated in the name of the common good. This is an unlikely outcome, because in this scenario: a) we would probably get sued by Kinder Morgan for expropriation and b) private interests do not get their payday.)
A finished pipeline means Trudeau will have completed the centrepiece of his environmental policy—his grand triangulation being that we can only tackle climate change if we also expand the oil sands. It is also one less broken promise he has to wear into the next election, and one of the few that will count for a wide swath of the voting public. (Fellow electoral reform nerds: nobody cares. We will have to try another angle later with a better prime minister.)
But the other benefits for Trudeau are harder to see. He might gain a little support in Alberta, but it is unlikely much or any would translate into seats. He also loses Lower Mainland BC and potentially Quebec depending on how the constitutional question is handled—even if the Quebec Liberals do actually manage to hold power through this year’s election. He will still probably end up fighting between two and four provinces in court over the carbon tax, he loses all his Smiling Sunny Ways in the process of securing the pipeline, and Doug Ford is still the premier of Ontario.
The prime minister is wounded but may live to fight another day—assuming the federal NDP fails to get its act together in the next 18 months and properly capitalize on anti-pipeline sentiment. Trudeau will probably survive. But he’ll be more Just Watch Me than Sunny Ways.
B) THE PIPELINE DOES NOT GET BUILT
Well, alright. Justin Trudeau picked this hill to die on and if they don’t build the pipeline he may as well get busy assembling his crucifix. All the pipeline opponents will still be pissed with him for supporting it, and the ones who wanted to see it built now view him as one of Canada’s great failures.
His political reputation will be ruined. In over his head, “just not ready,” a paper tiger in love with his own empty platitudes, Justin Trudeau will become everything that Stephen Harper told us he would be. He will reveal not only his own weakness as a prime minister, but the weaknesses of his office within the federation. He will reveal that the prime minister of Canada is unable to set, define, and defend the “national interest.” He will wear the lie that “we will get this built” around his neck like a millstone and go into the 2019 election with little to show for his government’s first term but a bunch of deficits and the clusterfuck of Canada’s first year of legal weed.
The failure of TMX would also mean the end of the government’s “have your cake and eat it too” climate policy. Without the pipeline, Trudeau’s “social license” for Canadian carbon pricing will also have to be revoked. The pseudo-harmony between climate action and oil sands expansion collapses, and Trudeau is caught in devastating partisan crossfire: from the Right that he was never serious about natural resources, from the Left that he was never serious about the environment, and from both that he is serially full of shit. The carbon tax dies on the hustings of the 2019 election, and premiers Jason Kenney and Douglas Ford help make Andrew Scheer our 24th prime minister.
At the root of it all, Justin Trudeau’s greatest opponent in all this has been Justin Trudeau. His effort to be all things to all people since the 2015 campaign has finally met an unbridgeable political divide. It is unlikely he was prepared for a political crisis of this magnitude, and it’s less clear so far that he is prepared to manage it. He sat the premiers of BC and Alberta down for a tete-a-tete last Sunday which accomplished little and impressed even less.
The problem with talking a big game is that you eventually have to deliver. We have yet to really see that unambiguously from this prime minister, and he is running out of time to show us.
It doesn’t help that this now falls after a particularly bad run of publicity for the prime minister. His government took a beating in the fall over the Liberals’ alleged aloofness and entitlement, and he was wedgied in the international press for his goofy trip to India in February. Other than his brief stay in Ottawa last weekend to try and broker a provincial peace treaty, he has been out jetsetting again, all over South America and Europe (where reporters were admonished never to ask him about the environment).
I mean, I get it. I wouldn’t want to deal with any of this shit either, especially after I staked the entirety of my personal and political reputation on a very questionable outcome. Take your time coming back from England, boss. You may not have too many of those swanky diplomatic missions left.
Follow Drew Brown on Twitter.