Prime Minister Justin Trudeau and Alberta Premier Rachel Notley declared Tuesday that Ottawa's approval of the Trans Mountain pipeline expansion will not be derailed by a pact between the NDP and Green Party in British Columbia, raising the spectre of high-stakes political and court battles.
Speaking in Rome, the Prime Minister said the $7.4-billion expansion – which would boost crude exports to Pacific markets – benefits the entire country, which is why the federal cabinet gave its approval.
"The decision we took on the Trans Mountain pipeline was based on facts, evidence on what is in the best interest of Canadians, and indeed all of Canada," Mr. Trudeau said during a news conference with Italian Prime Minister Paolo Gentiloni.
Mr. Trudeau said the fate of the pipeline project should not be affected by the anticipated change in the B.C. government.
BC Liberal Premier Christy Clark indicated on Tuesday she expects to lose a confidence motion in the legislature in the coming weeks and to see the NDP form a minority government with the support of the Green Party. The NDP and Greens released details of their agreement, which commits them to "immediately employ every tool available to a new government to stop the expansion of the Kinder Morgan pipeline, the seven-fold increase of tanker traffic off our coast and the transportation of raw bitumen through our province."
It remains unclear what levers the provincial government can pull to block the interprovincial pipeline project that was approved both Ottawa and by the outgoing B.C. government. However, Kinder Morgan Inc. will require construction permits and other approvals from the province and municipalities.
Previous court rulings suggest the two lower levels of government cannot derail a federally approved pipeline project, but a new government could test that constitutional power and force Ottawa to defended its jurisdiction in the court.
Mr. Trudeau did not say what Ottawa would do if the NDP and Green Party in B.C. attempt to stop the pipeline expansion. However, Ms. Notley said that any such effort would fail.
"Mark my words, that pipeline will be built. The decision has been made," she told reporters.
The Alberta government and Calgary-based oil industry argue the Trans Mountain project – which would virtually triple the pipeline's capacity to 890,000 barrels a day – is critical to expand export markets and ensure Canada gets world prices for its crude exports. Opponents in B.C. worry about the environmental impacts of major spills from the pipeline and from the increased tanker traffic that would result from the expansion.
In a statement, the Alberta Premier said "provinces do not have the right to unilaterally stop projects such as Trans Mountain that have earned the federal government's approval.
"This is a foundational principle that binds our country together," she added.
While BC NDP Leader John Horgan was conciliatory toward his Alberta colleague, Green Party Leader Andrew Weaver slammed her declaration that a new B.C. government would have no say in the issue. He indicated the two parties are working with First Nations who have complained they were not properly consulted, as well with as other opponents.
"There's a lot that can be done in British Columbia to stop the shipment of diluted bitumen in our coastal waters," he said. "And rest assured, the BC Greens and the NDP will work together on this."
There are some avenues open to a new B.C. government, but they may entail delay and harassment more than an outright rejection.
"Directly, British Columbia can't do anything," Ted Morton, former cabinet minister and now professor at the University of Calgary's School of Public Policy, said in an interview. "Nothing is more clearly under federal jurisdiction than interprovincial and export pipelines.
"Having said that, indirectly, this new coalition could do a number of things to delay it and undermine it. … It could chew up a lot of time and in the pipeline business, time is money. So it could be a strategy of death by a thousand delays."
The province and municipalities could refuse to issue permits – for construction and road access, for example – in order to frustrate and drive up costs of the project. In that case, Kinder Morgan would have to go to court to force the governments to comply with the law and Ottawa would face intense pressure to back the pipeline company.
As well, there are 19 court challenges launched by First Nations, environmental groups and the cities of Vancouver and Burnaby that await a federal court hearing. Backed by the Green Party, an NDP government could seek to intervene in those cases and support the argument that the federal process was flawed.
One of those cases challenges the provincial process that was followed in issuing an environmental certificate to Kinder Morgan. The new government could simply refuse to defend that action and – if the court rules against Kinder Morgan – the province would have to revisit its review process.
Still, recent court cases suggest that, while a province has a duty to review projects that impact environment and aboriginal rights, it can only impose conditions rather than block a federal approval, said Robin Junger, a partner at McMillan LLP and a former B.C. deputy minister. As well, Mr. Junger said an NDP administration could not revoke the Trans Mountain certificate issued by the Liberal government.
In Ottawa on Tuesday, new Conservative Party Leader Andrew Scheer urged the Liberal government to defend the pipeline decision more forcefully, especially in B.C. Mr. Scheer noted some Liberal MPs from B.C. have opposed the pipeline and suggested the pipeline expansion is now in peril from the "forces of No."
"Will the Prime Minister finally stand up to the forces that are seeking to kill these jobs, or will he fold like a cardboard cutout?" Mr. Scheer demanded.
Natural Resources Minister Jim Carr said the government approved the pipeline because it is in the national interest to diversify the market for Canadian crude beyond the United States, which currently takes 99 per cent of those exports.
"Therefore, we concluded that it was in the interests of Alberta, British Columbia and all of Canada to approve this pipeline, because it employs thousands of people not only in British Columbia and Alberta, but all across the country," he said. "We stand by that approval."