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Professor Tom Flanagan in his office at the University of Calgary's Department of Political Science. (LARRY MACDOUGAL/The Canadian Press/LARRY MACDOUGAL/The Canadian Press)
Professor Tom Flanagan in his office at the University of Calgary's Department of Political Science. (LARRY MACDOUGAL/The Canadian Press/LARRY MACDOUGAL/The Canadian Press)

Tom Flanagan

To connect the pipeline, connect the dots Add to ...

“What’s the penalty for performing the BNA Act in public?”– Dave Broadfoot, “the Honourable Member for Kicking Horse Pass”

The British North America Act, or Constitution Act as we now call it, is a far-sighted document. Its careful balancing of interests explains why Canada has one of the world’s oldest continuously operative constitutions. Returning to the wisdom of the founding fathers might help us navigate the current debate on oil pipelines.

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As befits a federation, section 92(13) of the BNA Act gave the provinces legislative authority over “property and civil rights in the province.” But realizing that provincial politicians would often be tempted to play beggar thy neighbour against other provinces, the founding fathers put balancing provisions in section 92(10). Subsection (a) gives the federal Parliament jurisdiction over railways, canals and “other works and undertakings” (including pipelines in today’s world) extending across provincial boundaries. British Columbia, or any other province, simply does not have constitutional jurisdiction to block a pipeline coming from another province if federal authorities approve it.

Even stronger is the so-called “declaratory power” found in subsection (c). This allows Parliament to declare a work, even though “wholly situate within the province,” to be for the general advantage of Canada, or of two or more provinces, and therefore to come under federal jurisdiction. Parliament could invoke the declaratory power over all the local roads, bridges, storage facilities, hydro connections and any other physical installations necessary to construct and maintain a pipeline.

Section 92(10) powers are an extremely important and often used part of the Canadian Constitution. In the first five decades of Canadian history, the declaratory power was invoked more than 400 times, mostly to ensure that Canada’s burgeoning railway system grew to national advantage. By the First World War, virtually every inch of rail track in Canada was under federal jurisdiction. More recently, the declaratory power was used to make Canada’s nuclear industry a federal matter.

It has become routine for provincial politicians to speak as if they had the power to block the construction of pipelines. They do not – at least not if Parliament chooses to exercise the powers given to it by the Constitution.

Prime Minister Stephen Harper has also said for more than 20 years that he believes in a strict construction of the Constitution, in which both the provinces and Ottawa should be free to exercise their jurisdiction without interference from the other level. That is, at least in part, why Ottawa is now transferring health-care money to the provinces without imposing new conditions – health care is a matter of provincial jurisdiction. However, the powers given the federal government by section 92(10) are just as much a part of the Constitution as are the powers given the provinces by the rest of section 92.

But Mr. Harper also wants Canada to become an “energy superpower,” which may require connecting the constitutional dots. Canada will never become an energy superpower if some provinces prevent other provinces from exporting their petroleum products. Indeed, domestic production will decline, and we will become even more dependent on imported oil.

That is where we are headed if current trends continue, as environmentalists whip up hysterical opposition to all pipelines. They oppose not just new projects, like Enbridge’s Northern Gateway, but the expansion of existing pipelines (Kinder Morgan’s Trans Mountain line to Vancouver) and the reversal of existing ones in Ontario, allowing western crude to replace imported crude in eastern refineries. Politicians find the pressures irresistible at election time and climb on the anti-pipeline bandwagon, just as Premier Jean Charest has forbidden the production of shale gas in Quebec due to fear-mongering about the alleged dangers of fracking.

The collapse of Alberta Premier Alison Redford’s well-meaning but naive “national energy strategy” shows how weak the provinces are at promoting the national interest. Only the federal government can reverse the trend. Of course, negotiation would be better than imposition; but if negotiations fail, Parliament may have to perform the BNA Act in public.

Tom Flanagan is professor of political science at the University of Calgary and a campaign manager for conservative parties.

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