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Senator Doug Black's Bill S-245 Trans mountain Pipline Project Act, Second reading speech

Hon. Douglas Black moved second reading of Bill S-245, An Act to declare the Trans Mountain Pipeline Project and related works to be for the general advantage of Canada.

He said: Your Honour, honorable senators, I’m happy this afternoon to have the opportunity, particularly after having heard from Minister Carr earlier today, to speak at second reading of Bill S-245, An Act to declare the Trans Mountain Pipeline Project and related works to be for the general advantage of Canada.

There are three initial points I would like to make, honorable senators, from questions that people have raised with me respecting the legal basis of this particular bill.

First, I wish to suggest to you that this bill will provide a foundation for federal action. What we have heard, and what we continue to hear today, is that the Government of Canada has clearly indicated by words their intention. However, we need to create a situation where action can be taken to advance this project, which is in the general interest of Canada. It will also send a clear and certain signal that the Parliament of Canada values this project and recognizes it’s in the interest of Canada.

People have said to me — and we’ve heard the minister refer to this today — “But why do you need a bill to do this? The Government of Canada already has the authority to control the interprovincial pipeline.” There are three points on that.

First, I would argue that it is settled constitutional law — if you refer to the Constitutional Law of Canada, Fifth Edition — that a declaration must be explicit. You cannot imply a declaration that a work is for the general advantage of Canada. There are any number of examples of statutory pieces of legislation.

The declaratory power has been used some 400 times in the history of Canada. There are four particular pieces of legislation that I’m going to flag for the benefit of the record that relate directly to what I want to speak about. The Detroit River Canada Bridge Company Act, of 1928, the Hudson Bay Mining Declaration, of 1947; the Quebec Northshore and Labrador Railway of 1947; and An Act respecting CN Rail, provided the amalgam of rail companies that formed CN Rail in 1955. In each of those pieces of legislation, there is an express declaration — and these are only four examples — that this work is for the general advantage of Canada.

And why does that matter? Why does it matter that something be for the general advantage of Canada and a declaratory power needs to be used?

The reason is as follows: Once the power is used and affirmed by the legislature, all ancillary works to the pipeline are included in federal jurisdiction. Therefore, if we were to pass this legislation, all local roads, local bridges, power connections, storage facilities and anything related to the construction, operation or maintenance of the pipeline becomes the jurisdiction of the Government of Canada.

The effect of that, of course, is to exclude the governments, in this case, of British Columbia and, in this case, the municipalities of Burnaby and Vancouver, from having any legislative authority. That is why you have to declare a work to be for the general advantage of Canada.

“I acknowledge,” the minister said, “the actual pipeline of course is regulated constitutionally by the Government of Canada because it’s a matter connecting two provinces.” But that’s not the problem. The problem here is that it’s the intervention of governments on ancillary works that will be a roadblock. That’s why, in my submission to senators, we need to ensure that the declaratory power is used.

I want to indicate the purpose of the bill before you. It’s clear we have to pass this, in my submission, to ensure that the Trans Mountain pipeline and any works related to it are carried out in accordance with the National Energy Board permits and the laws of Canada. Therefore, following from that, we have clause 4, the only operative clause in the bill, making that declaration.

Why do I argue that this is necessary? There are two principal reasons. One is arguments around the rule of law, and this afternoon we heard the minister on this, and the second is arguments around Canada’s competitive position and, therefore, prosperity.

On the rule of law — and I will come to my more detailed arguments in a moment or two — let us keep in mind that the preamble to the Constitution Act of 1982, the so-called Charter of Rights and Freedoms, states:

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

I would suggest to senators that perhaps our first job as legislators is to make sure the laws of Canada are upheld.

My remarks are not long today, because I think this matter has been ventilated pretty extensively, but I think it would be important for senators to have a sense of the road that Kinder Morgan has had to follow with respect to developing the Trans Mountain pipeline. Senator Neufeld, in his comments last week, referred to a number of the points, but let me take a moment or two to talk about their journey.

Their journey started seven years ago in the fall of 2011. Some preliminary matters that must get under way with the pipeline moved into June 2012 when they filed their first application with the National Energy Board. They commenced between May 2012 and July 2013 their community engagement activities, and it’s important that the record show what they did by way of community engagement.

There were 63 engagement open houses and workshops along the pipeline route and the marine corridor, attracting an attendance of 2,761 individuals. There were 527 meetings between project team members and stakeholder groups, and there was engagement with more than 100 Aboriginal communities and additional Aboriginal groups.

In July 2012, the B.C. government imposed five new conditions on the pipeline proponents. There was great debate at the time about the appropriateness and the timing and whatnot, but nonetheless, the five conditions were accepted, and Kinder Morgan moved forward.

Between July 15, 2014 — this is still four years ago — and December 15, the National Energy Board conducted exhaustive processes with respect to this hearing. Notwithstanding two years of hearings, ending in final arguments being presented in January 2016, as the minister informed us today, his government — the new government — introduced additional interim measures for pipeline reviews.

All satisfactory; it is their right to do so, but recognize that many would argue that the barn door had closed.

Nonetheless, the Government of Canada introduced additional interim measures for Trans Mountain to do additional consultations with Indigenous people and assessment of upstream greenhouse gas emissions associated with the project.

Three months later, the government announced an additional hurdle that Trans Mountain had to pass. On May 17, 2016, they introduced the so-called ministerial panel that the minister referred to this afternoon, who were to undertake additional consultations. I simply indicate this by way of making sure the record is complete. Trans Mountain did not complain. Trans Mountain moved forward to do the consultations required.

Indeed, in that regard, they continued aggressively to do that until November 29, 2016 — still two years ago — when the Prime Minister announced that the project had received final federal approval, saying the project was in the national interest.

Two months later, the Government of British Columbia announced the project had received its environmental certificate from the Environmental Assessment Office, which is the role and responsibility of the Government of British Columbia.

Now, put yourself in the position of Trans Mountain. You have been aggressively pursuing a project for seven years now. You received the permits that you have sought to receive after extensive legal and additional consultations, and you received the authority from the government. You would normally, and naturally, be entitled to think that you can now move forward to develop the project, which the Prime Minister of Canada says is in the national interest of the country, and that is exactly what they started to do. They started to do the work you would expect to build a pipeline between Edmonton and Burnaby — that is to say, to expand the pipeline between Edmonton and Burnaby.

So where are we today?

The court actions continue on a number of fronts. Civil disobedience has begun. There were a series of injunctions granted to Kinder Morgan and Trans Mountain two or three weeks ago because they were unable to do the work required at their site in Burnaby.

As is their right, they went to the courts in British Columbia to obtain injunctions, which were granted. Those injunctions are being violated on a daily basis. As of today, there have been 172 arrests of individuals who decided to take the law into their own hands.

There have also been, as Senator Unger has pointed out, three RCMP officers injured, one seriously.

Violence flared up again Sunday evening.

I can also say that over the weekend, the Burnaby City Council, in their wisdom, has decided to stop funding overtime for the police in Burnaby, who are enforcing the laws of this country to protect the Kinder Morgan assets and employees.

By anyone’s definition, this is a violation of the rights of Kinder Morgan to advance with their legitimate project. It is, I would submit to my colleagues, a violation of the rule of law that should not be tolerated.

So, if you have any doubt at all about the intentions of the Government of British Columbia with respect to this project, let me say clearly that I have no objections to people pursuing legitimate interests. We’re all entitled to our opinions. But we’re not entitled to break the law in advancing our opinions.

I want to refer to an interview given by Andrew Weaver to Evan Solomon on February 25 on CTV Question Period. Who is Andrew Weaver? Our Senate colleagues from British Columbia will know, and my Senate colleagues from Alberta are certainly getting to know.

Andrew Weaver is the leader of the Green Party in British Columbia. The Government of British Columbia is an NDP government only because the three members of the Green Party are supporting them. They have a deal to put them in government. Fair enough. That’s the democratic system.

Mr. Weaver is the leader of the Green Party and is key to propping up the NDP government. He was interviewed by Mr. Solomon and I am going to extract some of the things he had to say so there can be no doubt at all about what his agenda is and, I would suggest, the agenda of British Columbia.

Mr. Solomon said to him, quoting Premier Notley of Alberta, “British Columbia, you cannot stop the pipeline.” Your threats, in her words, are ridiculous. Mr. Solomon asked Mr. Weaver, “What do you think about that?” Mr. Weaver volunteers, “The seven-year process before the NEB and consultations is a complete sham.”

He goes on to say, “The reality is this: The approval of Kinder Morgan had nothing to do with evidence. It had nothing to do with science. It had everything to do with the pure political ambitions of Mr. Trudeau.”

Mr. Solomon goes on to say that Mr. Trudeau has said the National Energy Board has approved the pipeline with 157 conditions, all of which are being met; that the pipeline is in federal jurisdiction; that Kinder Morgan has a constitutional right to have it built. I say to the Prime Minister; the pipeline will be built. Mr. Solomon asks Mr. Weaver, “Will this pipeline be built? Do you believe this pipeline will be built?” Mr. Weaver says the pipeline will never be built. The reason is multifold. Number one is that the British Columbia government is right now before the courts with respect to the environmental processes. There are also multiple Indigenous First Nations cases before the courts as well. And we know that is a strategy. As a lawyer, I can tell you that is a strategy. You endeavor sometimes to tie up your clients with litigation.

Mr. Solomon presses on. He says, “Okay. I understand that strategy, but what do you do if the courts don’t rule in your favor?” A circumstance, incidentally, we’re starting to see now.

Mr. Weaver volunteers the following, “We know there’s a significant fraction of people who live in Vancouver and other parts of British Columbia who are opposed to this project, and it doesn’t take a great deal of work for people to go to the site and protest. And you know, based on just the previous protest, this is going to be a problem.”

He is suggesting that people are going to take to the streets to oppose the pipeline. Again, I have no objection to that, but you must do it in accordance with the law. Mr. Solomon says, “Your strategy seems to be that if you can’t stop it, you’re going to delay it to death. Is this how you’re going to proceed? Court proceedings, delay it and finally Kinder Morgan walks away? Is that your strategy?” Mr. Weaver says, “Well, there is a reality in this.”

So, all the world should know that that is the strategy of the Government of British Columbia to wear Kinder Morgan down. And as we’ve heard from the Prime Minister, Minister Carr and others, continual assurances that the pipeline will be built, I regret to think that the pipeline is not going to be built unless the federal government puts itself in the position to take what action is required to get the pipeline built, and this bill will allow them to do exactly that.

My second reason relates to something that we know well, senators in this chamber -- that the competitive position is being eroded in Canada, and in large part it’s being eroded in Canada because there is a sense which has developed that Canada is the country where projects come to die. I regret to say that, but if you look at the numbers, there have been 29 projects, as the Financial Post recently revealed, over the last number of years valued at about $129 billion that have simply stopped or gone away because of the consultations that were required in this government.

Canada has a sign in its window today saying, “closed for business,” and we cannot allow that because the prosperity that we need to develop what we want in this country, the consultations we talk about, the prisons that we need, the schools we need, the airports we need, cannot be built unless we have the funds to do that.

We also know that we’re in a position now, between ourselves and the United States, where our competitive position is worsening. I don’t want to prejudge it. Maybe we’ll come to some balance around tax and the other issues, maybe we’ll come to an agreement in respect of NAFTA. Let’s all be hopeful, but the reality today is we are increasing taxes and increasing regulation at the very time that our major client and competitor is doing exactly the opposite.

Business investment to Canada has stopped. New business investment to Canada has stopped. In fact, Statistics Canada indicates we are continuing to not only stop investment, but that it has been declining year over year for the last four years. This is not a position we want to be in, and it’s not a position we can countenance.

Now, the issues around us solving these problems are not going to be solved exclusively by Trans Mountain, but it’s going to send a signal to the world that you actually can get a project done in Canada once you have the authority to do it.

Scotiabank, in their report of last month when they reviewed it, said that our inability to build Trans Mountain is a self-inflicted wound. They estimate that we are losing because of the price differential — I won’t go into the details why that is, because I know my colleagues understand that — we are losing $15 billion a year.

Now, that is 15 new billion-dollar hospitals a year, 750 schools a year or 30,000 kilometers of highway a year that we are foregoing. There is no nation in the world that does not aggressively support its export markets. There is no nation in the world, other than Canada, which is not aggressively supporting its export markets. And no one is advocating that we do it in any other way but the Canadian way, which is respect for rules, regulation and consultation, all of which has been done.

I want to quickly end with a couple of comments from an article that was published in the Globe and Mail on February 20, authored by Martha Hall Findlay. Many of you may know her. She was an MP in Ottawa for a period of time. She serves with great distinction currently as the President and CEO of the Canada West Foundation, a great think tank based in Calgary. She has opined the following on the matter:

Canada depends on investment, both domestic as well as foreign. Without investment, we die. If we can’t compete for that investment – if potential investment chooses to go somewhere else – we all suffer. . . . But investors need one basic thing: confidence in achieving a return in a reasonable period of time. . . . The things that are beyond their control – the political and legal environments – need to be reliable. . . . Because investors need certainty above all else, one of the key reasons for Canada’s prosperity is that it has been an attractive, reliable, rule-of-law kind of place to invest.

Unfortunately, that reputation has been disappearing . . . If, in Canada, the commitment of a government is worthless when that government changes, who in their right mind would spend years, and huge amounts of money, without some certainty that if they comply with all of the rules, they will be able to build?

That is the precise position in which Kinder Morgan and Trans Mountain find themselves today. They have spent hundreds of millions of dollars, and they have played by every rule put before them. They have never complained about the hurdles put before them, and now they’re in the position where they’re facing civil disobedience to developing legitimate projects, and the City of Burnaby is not prepared to pay for overtime policing. What is a business supposed to think?

Martha Hall Findlay goes on to say:

This may make certain activists happy. It most certainly makes U.S. oil companies very happy to pay half-price for Canadian oil because we can't get it to any other market. But the majority of Canadians should be furious at how a small number of people are jeopardizing such an important part of our economic prosperity -- our national interest.

Senators, I would simply ask you all to consider supporting this bill. We need to get it out of the Senate as quickly as we can, and we need to get it to the house. Then we will see if talk turns to action. Canada needs this project. Our prosperity demands this project, and we cannot stand by and watch these violations of the rule of law. We cannot do that, we should not do that, and I would ask all senators to join with me in endeavoring to pass this, get it out of the Senate and down the hall.

Thank you, senators.