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Guest Author: Politicians, pipelines and paying heed to the rule of law

By Paul Cassidy

A non-governmental advocacy group has published an articulation of the legal tools it says the new government can use to stop the project. But are those “legal” tools actually legal?

According to the Confidence and Supply Agreement between the B.C. New Democrats and the B.C. Greens, in government the NDP-led alliance will “immediately employ every tool available to the new government to stop the expansion of the Kinder Morgan pipeline, the seven-fold increase in tanker traffic on our coast, and the transportation of raw bitumen through our province.”

The problem for the new government is something called the rule of law, which is a first principle of our society in Canada, deliberately written into the Canadian Constitution. The many components of the rule, aptly described in Tom Bingham’s seminal 2010 text on the matter, will prevent the government from doing what it wants to do: Kill a project that has already been approved and is not within their legal ability to undermine. Bingham and several Canadian court cases emphasize a “thick” rather than “thin” perspective on the rule of law, meaning it is to be applied broadly to protect Canadians from such arbitrary and high-handed government action.

The government can’t even purport to use its powers to delay the project, as its animus to the project will expose it to allegations of abuse of its powers.

Among other things, the rule will prevent the government from using its permitting authority for an improper purpose, which would be to kill a project that is not within its jurisdiction to kill. The rule will prevent the government from using a Trumpian tool of doing indirectly what it can’t do directly.
 
And the rule will prevent the government from directing its officials to delay or refuse to issue provincial permits through some sort of fiat or directive. Case law has been well settled on this as far back as the late 1950s when a lawyer (who was, ironically, a founder of the New Democratic Party) successfully argued against such a move by the Quebec government when it tried to deny his client a licence by using the same or similar arbitrary tactics.
 

The NDP government needs a lesson in understanding the reach of the rule and its fundamental cornerstone position in Canada. If it fails to grasp this, a court challenge relying on a rule of law argument will be successful to stop the government from taking actions that, given its clear articulation of its anti-pipeline motive, cannot, like Donald Trump, be disguised.

A reviewing court will, like those in the United States, examine the government’s election statements and the position it so loudly voiced on the pipeline, and will be faced with the clear example of a misuse of public authority should the government use the tool box contents suggested to it.

Then again, the B.C. NDP have not been alone in their failure to grasp and respect the rule of law. The outgoing B.C. Liberal government also failed to abide by the rule when it created an agreement with the pipeline proponent for funding their government coffers, something it had no legal right to do.

B.C. politicians need to go back to school for a course to understand they cannot act in violation of the rule of law. The law is to be obeyed, not ignored whenever it suits some political purpose. The course is called Law 101.

Paul Cassidy practices environmental law in Vancouver and is a Governor with the Business Council of British Columbia and a member of the Council's Executive Committee. The views presented above are expressed solely on his own behalf. This editorial originally appeared online in the Vancouver Sun and will appear in Environment Policy and Law.