David Robitaille: It’s not up to Ottawa to dictate the rules of the game

In the debate about the expansion of the Trans Mountain Pipeline, some people want the federal government to bring British Columbia to heel as if it could unilaterally dictate the rules of constitutional law. The federal government has announced his intention to settle the matter by the adoption of legislation to strengthen federal powers. In our view, there are three options available to the federal government, to Alberta, and to the American company Kinder Morgan: to negotiate, to drop the project, or to go to court.

Courts have made it clear that businesses operating in federal fields must also comply with provincial laws. According to the Supreme Court, this is the “first general constitutional principle”. The contrary “would create serious uncertainty”. The court states unequivocally that “(interprovincial transportation) undertakings which fall under federal legislative competence by virtue of s. 92(10) are not thereby removed from the ambit of provincial legislative competence, and equally, that they are not entirely embraced by the legislative authority of Parliament.”

Many tend to forget this. The court thus approved “the line of cases that have applied provincial environmental law to federal entities engaged in activities regulated federally.” The court also recognized the importance of local democracy and emphasized that environmental protection “requires action by governments at all levels”. In constitutional law, interprovincial pipelines, ports and aerodromes, for example, are not federal enclaves, absolutely protected from provincial laws. Some private companies and the federal government would like the opposite. Both of them are pressing, in courts, arguments favouring federal unilateralism in these areas, to the detriment of provincial and municipal jurisdictions and, more fundamentally, citizens.

Two situations would allow a company to avoid provincial laws: an excessive or serious impairment of the head of a federal government or a conflict created by the contradiction of a federal law by …read more

Source:: Vancouver Sun

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