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Jeffrey Simpson (Brigitte Bouvier For The Globe and Mail)

Jeffrey Simpson

(Brigitte Bouvier For The Globe and Mail)


From FIPA to Keystone, the courts offer cover Add to ...

The Harper government is understandably miffed at the Obama administration’s refusal to make a decision, one way or the other, on the Keystone XL pipeline to bring bitumen oil from Alberta to refineries in the Gulf of Mexico.

The project has been analyzed and commented on, subjected to detailed reviews at the state and national level, and become a political hot potato. Polls suggest that a majority of Americans want Keystone, but environmental groups do not. President Barack Obama is caught between the conflicting pressures.

A new court case in Nebraska is the latest reason for the administration to stall. The Harper government is not happy.

“We are disappointed that politics continue to delay a decision on Keystone XL,” said Prime Minister Stephen Harper’s office. Note that the statement didn’t even deign to refer to the court case. The reason for the delay, the PMO asserted, was “politics.”

That kind of thing would never happen in Canada, would it?

In 2012, Canada and China concluded a foreign investment promotion and protection agreement. For those seeking to upgrade economic ties with China, the FIPA was a big deal. That’s certainly how Mr. Harper’s government spun the agreement at the time.

Then, trouble began to rumble in Conservative Party circles. Some Conservative MPs don’t like authoritarian Beijing. Public opinion surveys confirmed that Canadians harbour many doubts about China’s government, rule of law (or lack thereof), trading practices and human rights. Instead of quickly ratifying the FIPA, the government began to hesitate, and it still is.

By strokes of good fortune, these political hesitations coincided with a court case in Canada – just as the Obama administration’s latest hesitations over Keystone coincided with the Nebraska court case.

A very small First Nation, the Hupacasath (population: 300) near Port Alberni on Vancouver Island, brought suit against the FIPA, claiming that Ottawa had not consulted it and other First Nations before negotiating and proceeding toward ratification of the international agreement.

The Hupacasath case offered another example of the dream palace within which too many aboriginal leaders reside. The idea that the federal government has to consult all 600-odd First Nations, or some subset – to their satisfaction before negotiating international agreements is absurd on its face and impossible in practice. The Crown and only the Crown (that is to say, the federal government) is sovereign in international affairs.

Predictably, the Federal Court rejected the Hupacasath case, underscoring that the chance some big Chinese investor would come in and use the band’s land without its approval was completely speculative. That obvious ruling didn’t stop the group from launching an appeal, and from being joined by the Union of B.C. Indian Chiefs and the Chiefs of Ontario.

So now there’s an appeal, which costs the Crown money to defend and the aboriginals and their supporters to prosecute, but which suits the Harper government just fine. When asked why, after all this time, it has not ratified the FIPA with China, the government throws up its hands and says it can do nothing because the matter remains before the court.

Which is precisely what the U.S. State Department and the White House are saying in Washington. The argument about court challenges advanced to explain the Keystone delay is the same argument Mr. Harper’s government uses to explain the delay in ratifying the FIPA.

The government has correctly identified “politics” as the real reason for the Keystone delay, but it is also largely politics in the Conservative Party and caucus behind the FIPA holdup.

The Nebraska case was brought by three landowners who objected to a change removing the state Public Service Commission’s final say on pipelines and giving it to the state governor and environment department.

A lower court judge agreed with the landowners. Her judgment is being appealed on the ground the the landowners suffered no harm.

It is conceivable that the losing side might appeal to the U.S. Supreme Court. This might suit Mr. Obama’s administration, since such an appeal might postpone any decision on Keystone for long enough that the whole project has gone away or Mr. Obama has left office.

In both countries, court cases have a way of offering nice political cover.

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