For anyone familiar with Stephen Harper’s role as a provincial rights advocate, the federal posturing on the Enbridge risky tanker and pipeline scheme is more than ironic. It is a 180 degree about face.
Back in January 2001, our future Prime Minister sent a letter to Premier Ralph Klein in which he called for Alberta to exercise its Constitutional provincial powers to “build firewalls around Alberta.” The letter was co-signed by Harper’s mentor from the University of Alberta Tom Flanagan, Ted Morton (at the time described as Alberta Senator-elect), the head of the Canadian Taxpayers Federation and other Alberta luminaries, including Ken Boessenkool, (described in the letter as former advisor to “Stockwell Day, Treasurer of Alberta,” who is currently none other than Premier Christy Clark’s Chief of Staff.) Stephen Harper, who claimed top spot in the list of signatories, was at the time President of the National Citizens’ Coalition.
The letter set out what the signatories believed to be Constitutionally allowed steps Alberta should take, including: withdrawal from the Canada Pension Plan, ending the provincial contract with the RCMP, a provincial take-over of health care decision-making, and collecting revenue for the province from income tax. The aim of this bullish use of provincial powers was “to limit the extent to which an aggressive and hostile federal government can encroach on legitimate provincial jurisdiction.”
What a difference a decade makes. Now Stephen Harper is so confident of the right of the federal government to insist on an over-land pipeline to a tanker route through the most treacherous waters on earth that he committed to the project’s approval and completion before the provincial government had so much as uttered a word on the project’s acceptability. (I leave it to Patrick Brown to set out the nature of Christy Clark’s rather belated demands, but at least she has asserted that British Columbia has something to say in the matter. I leave for another day that other Constitutional objection to the Enbridge project – the constitutionally protected inherent rights of First Nations.)
NDP leader Adrian Dix has announced he has a high powered legal panel, led by the well respected lawyer Murray Rankin, reviewing the province’s legal options. The ugly reality is that if Stephen Harper is prepared to push this through, he can. The Constitution allows the federal government to over-ride provincial powers under Clause 10 of Section 92. If the federal government declares the Enbridge project to be “for the general advantage of Canada,” provincial rights are trampled.
In a recent piece in the Ottawa Citizen, Stephen Maher recalled the last time a premier approached a prime minister with the idea of requesting provincial objections be squashed through the invocation of Clause 10 of Section 92. In 1966, Newfoundland’s first premier, Joey Smallwood, had gone to Prime Minister Lester Pearson to ask for the federal muscle of Clause 10, section 92 to force Quebec to accept transmission lines across that province to bring electricity from the Churchill Falls project in Labrador to be sold to Canada and the US. Smallwood recalled later that Pearson had begged him not to make the request because, “if you ask me I’ll have to say yes, otherwise we would not really be a country. But I am asking you not to ask me, because we will not be able to keep the towers up.” Smallwood did not ask and suffered the impact of a lop-sided deal to sell power to Quebec ever since.
Stephen Harper has already hinted that he is prepared to use the federal over-ride power. In a January 2012 interview he said, “What I think I’d make clear is that I believe selling our energy products to Asia is in the country’s national interest.”
In addition to the Constitution, the prime minister has a precedent of expropriation. Back in 1999, the federal government expropriated the seabed under the Nanoose torpedo testing grounds when British Columbia decided to end the contract allowing testing. In that case, the Expropriation Act was used. 225 square km of BC territory was expropriated to allow the military tests to continue. That was a first, but would Stephen Harper get away with expropriating the whole territory required to build the Great Pipeline of China?
Commentators like Stephen Maher will say that so long as BC objects, no federal government will force the construction of pipelines over provincial lands, nor force ports to accept high risk supertankers for bitumen and diluent. And it is true, that to force such a thing would tear at the heart of Confederation and do real damage to our sense of ourselves as a nation. But that does not mean Stephen Harper won’t do it. No previous Prime Minister was sufficiently reckless and ruthless as to shut down Parliament to avoid a confidence vote he knew he would lose. The Prime Minister has promised Beijing this project will proceed. He has declared that those who oppose the project are “radicals.”
Has Stephen Harper abandoned the idea that provinces have rights? Is he prepared to ride roughshod over the wishes of the vast majority of British Columbians? Has he reversed himself or is it merely the case that provinces only have rights when they seek to promote fossil fuel expansionism, never to manage such development?
Perhaps it is time for Mr. Harper’s former colleague, Mr. Boessenkool, to brief Premier Clark on how to build a firewall. And maybe he could remind the Prime Minister of how he once urged provinces to resist and object “to an aggressive and hostile federal government ... encroach(ing) on legitimate provincial jurisdiction.”