It’s smart to pay attention to what’s in front of you, but have you noticed what’s happening along the periphery of your vision?
FLYING OVER THE PRAIRIES you can’t help but marvel at the gift of this country.
At 30,000 feet above the clouds, a drink and somewhere over Manitoba, I’m literally flying back home. Canada looks peaceful at this altitude. Yet it’s been a crazy few hours on the ground. Taking off from Pearson International and trauma, errr… Toronto, the NAFTA negotiation team was on the skids before boarding the aircraft. Secure in my seat, belted and ready for turbulence, I’m nevertheless deeply concerned that Alberta is also up in the air. And we have no idea how all this crazy business is going to land.
It’s not just the NAFTA debacle.
I’m a lawyer and a veteran of tricky negotiations in the oil patch. And I can’t get my head around the Federal Court of Appeal’s decision on the TransMountain pipeline. Frozen again. And for… what’s this? The federal government was negligent in a meaningful consultation with First Nations? Meaningful—now there’s a squishy word in legal land (more on this ahead). The Alberta government’s response muted by declaring ‘social license’ on hold, and a full stop on jacking up the carbon tax—four years down the road. How brave! How bold! That’s what I’m thinking scrolling through the news-feed on my smartphone, once landed back in Calgary.
I’ve spent a lot of the summer watching the periphery; it’s where disruption lives. The things that come out of the blue—like that Federal Court of Appeal decision. And like the massive holes in front of my house, which weren’t there when I left town the week before.
Not only did the City of Calgary dig two monster-sized craters in front of my home, the heavy equipment and construction workers made it a nightmare to just pull into the garage. I’m in a cul-de-sac. Oh, and the water was turned off. The incessant pounding of heavy equipment shook the whole house.
I’m in need of serious distraction.
A slow read of the court decision to once more put the boots to the TransMountain pipeline will drive most anyone to drink. I resist the temptation. But I wonder out loud: how crazy is this going to get before Albertans get really pissed?
This isn’t intended as a legal review. And there are details you need to consider—that’s where the devil lives—before I get to the punchline.
EXHBIT A: The Northern Gateway pipeline project implosion; Enbridge’s grand plan to build a twin pipeline from Bruderheim, Alberta to Kitimat, British Columbia.
The National Energy Board review process has been revamped, several times, to deal with climate change impacts, gender equality, and to improve consultation with First Nations in response to complaints by the Federal Court of Appeal in the Gitxaaia Nation case (which involved the Northern Gateway project).
YOU CAN’T WIN FOR LOSING
Regardless of improved process—regulatory & legal—the federal government didn’t do ‘meaningful consultation’ in a way that measured up to the Federal Court’s expectations.
What exactly is meant by the word meaningful? First red flag.
The National Energy Board is an independent regulator that sits as a buffer between politically-charged decisions (for instance, where to lay pipe) and politicians. Technically-qualified people are vetted and chosen to make recommendations in accordance with the guidelines; once that’s completed, the politicians step in to decide if the regulator’s proposals are acceptable or not. That’s where the politics happens—in clear view—it guarantees there’s no political interference.
What the Federal Court of Appeal is requiring of Crown (federal government) representatives at the table during the regulatory approval process is a two-way dialogue to ensure that the First Nations’ concerns and issues are not just heard and understood, but “the dialogue should lead to a demonstrably serious consideration of accommodation. The Crown must be prepared to make changes to its proposed actions based on information and insight obtained through consultation” [paragraph 564 of the FCA decision].
Representatives of the Crown, the federal government, must be empowered to do more than take notes; they have to be able to explore possible ways to accommodate the First Nations concerns.
If you’re thinking the “notwithstanding clause” in the Canadian Charter can override expectations of the Crown’s duty to consult with First Nations. Nope — not going to happen.
The ‘duty to consult’ with First Nations isn’t enshrined in the Canadian constitution—it’s mentioned but rights and duties are interpreted by judges; they aren’t created by politicians. It’s judge-made law. The only way forward is to see if the supreme court of our land—the Supreme Court of Canada—agrees with the Federal Court of Appeal’s interpretation of meaningful consultation.
Pipelines are once again up in the air. And if that’s not enough, NAFTA (as of this writing) and, in particular, supply-management, cultural exemptions, even the healthcare system are anything but certain in the refresh of free trade with the United States and Mexico.
My colleague Don Hill has been warning about this strange scenario for months. He watches the periphery like I do. And what he sees is chilling.
Alberta has a Plan A, he says, “but there’s no Plan B, or C, let alone a Plan D.” And it’s not like we should know better than to have one handy.
Don and I are preparing a series—a book & podcasts—about the Peter Lougheed era of governance in our province. One of PETER’S PRINCIPLES is to always be prepared, smart, and decisive. In the instance of the 1980 National Energy Program, the Lougheed cabinet used a series of clever and formidable strategies to slow down Trudeau (the elder) and his Liberal government’s shot across Alberta’s bow.
And if you need a reminder of how things can get weird very fast without a Plan B, look to Quebec.
Quebec’s premier has warned there’ll be serious political consequences for Canada, if supply management (a big deal in the province) and the preservation of cultural exemptions (huge subsidies) is sidelined by a new NAFTA. What’s more should push come to shove, Quebec is quite prepared now to go it alone. They have a pension fund. They have a bank. They have a distinct society.
And what of Alberta? What’s happened to us in the years between Lougheed and the present-day?
Brad Wall has an idea that needs a good listen. You may not know the former premier of Saskatchewan is a regular in Calgary, consulting and working with a law firm in the city.
It started out as a tweet:
“1904/5 our territorial governor had a vision for the next Cdn prov to be Buffalo (SK&AB). Laurier was concerned about future power & influence of that prov-preferring to split it. Sk & AB need to work together in the spirit of “Buffalo” now to defend and advance our interests.” — Brad Wall, 16 July 2018
It’s ironic that our current prime minister invoked Laurier’s predilection for “sunny ways,” as the way forward to unify Canadians, when in fact the Liberal boss of over a hundred years ago created the conditions for the Western provinces to forever be sidelined in the great game of Canadian politics.
Brad Wall invites you to revisit our Western history, and a vision that proposes to make us maîtres chez nous—Quebec’s rallying cry—masters of our own house.
It was near the turn of the last century before this one, the Premier of the Northwest Territories Frederick Haultain lobbied for a new province—he called it Buffalo—encompassing the present day territory of Alberta and Saskatchewan. The prime minister at the time Wilfred Laurier would have nothing to do with it. He was concerned the proposal would create too large a province and likely a conservative one (good heavens!) that would rival central Canada in power and influence. And instead of Buffalo, we have what we have—two provinces.
Up-ending Confederation isn’t something done lightly, but Quebec seems to have the stomach for a battle over NAFTA exclusions. And they’ve won more out of Confederation than they’ve lost since The Quiet Revolution.
PLAN B: Brad Wall is onto something. Confederation isn’t set in stone. There’s been a few tweaks over the last 150 years. Nunavut, for one. And with all the quibbling between provinces—over things like beer and oil—it’s the right time to rethink status quo. And what Confederation was intended to achieve from the outset.
The prairies = BUFFALO. Think of it.
Even Manitoba will likely see the wisdom of this political equation.