Since we’ve heard a lot of misinformed or misleading commentary about the Trans Mountain Expansion Project (TMEP) this week, it seems it might be helpful to clarify the situation regarding the constitutional division of legislative powers in relation to interprovincial pipelines.
Interprovincial pipelines fall within federal legislative jurisdiction pursuant to s.92(10(a) of the Constitution Act, 1867 (transportation or communication “works and undertakings connecting the province with any other or others of the provinces”).
Some, like @jkenney, have suggested that Parliament could exercise its power pursuant to s.92(10)(c) to declare the TMEP to be a work “for the general advantage of Canada.” But that power applies only to local works that are “wholly situate” within one province.
The TMEP, because it traverses Alberta and BC, obviously does not qualify. In any case, the enactment of a s.92(10(c) declaration by Parliament would be pointless, since the TMEP already falls within federal jurisdiction pursuant to s.92(10)(a).
The federal National Energy Board Act is an exercise of Parliament’s power pursuant to s.92(10)(a). Acting pursuant to this legislation, the NEB has approved the TMEP.
Exclusive federal legislative jurisdiction over an interprovincial pipeline does not mean that the pipeline can be constructed without regard to the rights of Indigenous peoples or valid provincial and municipal laws (like zoning or environmental laws).
Our courts favour “co-operative” federalism, leaving as much room as possible for the operation of valid federal, provincial and municipal laws. They also aim to hold the Crown to honourable standards in its relationships with Indigenous nations.
The theory is that a healthy democratic federation aims to respect the interests of Indigenous, national, provincial and local communities as much as possible.
However, valid provincial or municipal laws cannot apply if they would “impair” core elements of federal jurisdiction over interprovincial pipelines. This means federal authorities alone have the power to decide whether and where an interprovincial pipeline will be built.
Also, the national interest prevails in the case of a conflict between valid federal laws (or decisions taken pursuant to them) and valid provincial or municipal laws. Conflicting provincial or municipal laws are rendered inoperative to the extent they conflict with federal laws.
Before authorizing projects (that may have a negative impact on the rights of Indigenous peoples, govts have a duty to consult and accommodate Indigenous interests. A number of Indigenous nations believe that the Crown did not fulfil its duties to them before approving the TMEP.
The NEB ruled, last December, that Burnaby’s zoning and tree by-laws cannot apply to the TMEP or are inoperative because they conflict with federal approval of the TMEP.
The Burnaby by-laws reflect valid and important local concerns, but the NEB found they were being used to impose unreasonable delay on the construction of the TMEP. That ruling is on appeal to the Federal Court of Appeal.
The BC government recently announced its intention to pass new regulations designed to limit the environmental risks associated with the transportation of diluted bitumen in the province. This is a valid provincial concern.
The BC government has agreed to refer constitutional questions regarding the validity, application and operation of its proposed regulations to the BC courts.
The answer is likely to be that valid provincial laws can apply to federally-approved interprovincial pipelines so long as they do not prevent or unreasonably delay their construction or operation.
Working out such fraught and high-stakes issues in a complex federation in a manner that respects the rule of law and democracy at all levels can be time-consuming, costly and frustrating. But it does not qualify as a “constitutional crisis”, imho.
