The race to seek a resolution in Kinder Morgan’s hard-fought Trans Mountain Pipeline saga in many ways takes its cues from previous iterations of this story that surfaced many decades ago.[1] Kinder Morgan, in news reports, has imposed a May 31 deadline, after which it will cancel its multibillion dollar pipeline project. While discussions between Prime Minister Justin Trudeau, Alberta Premier Rachel Notley and B.C. Premier John Horgan have yet to lead to a breakthrough, Alberta Senator Douglas Black has tabled a public bill (Senate equivalent of a private members’ bill) that would see that the “Trans Mountain Pipeline Project and related works are declared to be works for the general advantage of Canada.”
But what is the utility of declaring a “work for the general advantage of Canada” and aren’t interprovincial pipelines already federally regulated? Under section 92 of the Constitution Act of 1867, “Local Works and Undertakings” are generally delegated to the provinces, with exceptions made for works and undertakings that are interprovincial or international in scope, interprovincial or international steamship lines and works “declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more provinces.” Interprovincial or international pipelines would be covered under the first exception. However, Parliament’s declaratory power allows the federal government to take legislative and regulatory responsibility over works, such as railways, mines or nuclear generating stations, that Parliament deems to be in the interest of all Canadians; or Canadians in two or more provinces.[2]
The declaratory power has been used by Parliament at least 470 times,[3] although in the vast majority of cases (~85%), this power was used to bring railway lines under federal jurisdiction at the turn of the century. Since 2000, the only new “work and undertaking” to be declared for the general advantage of Canada or Canadians has been for the new bridge that replaces the Champlain Bridge and Nun’s Island Bridge in Montréal.
From a practical point of view, Senator Black’s Bill S-245 would clarify that the entire project as described in Order in Council P.C. 2016-1069 would fall within federal jurisdiction. While it remains to be seen whether this action would be sufficient for Kinder Morgan, it does mark the reassertion of federal paramountcy in what has appeared to be an intractable conflict.
[2] This jurisdiction has been interpreted broadly. In the case of Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 SCR 327, the Supreme Court of Canada concluded that labour relations for Ontario Hydro’s employees working at nuclear facilities was necessarily covered under the Canada Labour Code rather than the Ontario Labour Relations Act, as these facilities were deemed to be for the general advantage of Canada.
[3] Peter W. Hogg, Constitutional Law of Canada, 5th Edition. Scarborough, ON: Thomson Carswell, 2007. Ch. 22, pp15-17.