Obviously, we have to destroy the rule of law in order to save it!
With Kinder Morgan Inc.’s do-or-drop-it deadline set to arrive on Thursday, that seems to be the idea behind the argument advanced by the increasingly furious Canadian pipeline lobby that the Trans Mountain Expansion project must be approved, finally and irrevocably, right now! Anything less, it is frequently asserted, would be a violation of the “rule of law”?
As I wrote back in March, someone has clearly done some message testing and determined “rule of law” is a phrase to which Western Canadians will respond positively.
But the assumptions behind it are Orwellian – that is, it is a clear example of the abuse of language analyzed and parodied by the English author George Orwell in 1984 (the book of that title, not the year) and many of his other works of fiction and criticism.
Users of the phrase assert, by inference, that any legal challenge of an approval process that was arguably flawed by political manipulation, exclusion of stakeholders, and haste – in other words, resort by pipeline opponents to the rule of law, the principle that the law must treat everyone the same way – is somehow a violation of the rule of law.
This is preposterous. Nevertheless, thanks to doublethink, another of Orwell’s concepts often practiced in modern Canada through the use of “talking points” and “message boxes,” it seems to be working.
Obviously, this is starting to register in other quarters. “When all the evidence is in, it is Kinder Morgan’s cheerleaders, not opponents, that actually are undermining the rule of law,” wrote lawyer and environmentalist Will Horter in The Tyee last week. “Their get-an-approval-by-any-means-necessary approach – by rigging review processes, ignoring conflicts of interest, trying to pre-empt review by courts, generally putting their thumb on the scales of justice, and using ‘big lie’ propaganda techniques – is the real threat to the rule of law.”
So, we’re being told we’ll just have to destroy the rule of law in order to save it – an idea that evokes 1968 more than 1948, the former being at the zenith of opposition to the Vietnam War and the latter the year in which Orwell was writing his famous dystopian novel, before switching digits to create the title.
We must not wait for the courts, we are told, because the Trans Mountain Pipeline is essential to the wellbeing of the Canadian economy. Indeed, Alberta’s NDP’s legislation to pressure British Columbia’s NDP government to quit using the courts (viz., the rule of law) to slow down the pipeline, is called the Preserving Canada’s Economic Prosperity Act.
Technically, the government of B.C. Premier John Horgan is in court to determine if it has the authority to control or restrict shipment of diluted bitumen through the expanded pipeline. Its past statements make it clear that it opposes the pipeline, however, so the accusation it is attempting to delay the project with the intention of killing it is fair comment.
Perhaps this economic argument for the pipeline is true. But, if it is, what’s the hurry?
We have been warned, of course, that Kinder Morgan, which proposed the $7.4-billion megaproject to the National Energy Board at the end of 2013 and saw it approved with conditions in late 2016, will walk away from the project on Thursday if it can’t be assured it will profitably proceed.
The buzz sure makes it sound as if this shakedown tactic has succeeded, but this hardly makes the case that a legal challenge, or an environmental assessment, can’t be done in the measured fashion required by the rule of law.
If there remains a workable business case for the pipeline – that is to say, a market for what the Texas-based corporation plans to ship through it – then a further delay of six months, or even two years, ought not to prevent it from being built, even if Kinder Morgan doesn’t want to do the building.
The behaviour of the protagonists in this tale, by contrast, suggests different explanations for the hurry:
One, that Kinder Morgan has gotten cold feet, presumably based on an analysis of the future market for what it planned to ship down the TMX, and is looking for either an exit or a guarantee someone other than its shareholders will bear the risk. (That, dear readers, means you.)
Another, that the pressure to act quickly is political – to wit, both the NDP government of Alberta Premier Rachel Notley and the federal Liberal government of Prime Minister Justin Trudeau have decided they need a successful start to construction before they go to the polls in 2019.
This is easy to understand in the case of Ms. Notley’s government; not so much so in the case of Mr. Trudeau’s, although there are those ready to argue this case.
These are both believable explanations for the company’s ultimatum and the haste at both levels of government to circumvent the rule of law to start the project immediately.
Having tried to drum up hysteria about the need for the pipeline expansion, presumably in the expectation the legal process would result in delay, federal Opposition Leader Andrew Scheer and Alberta Opposition Leader Jason Kenney can hardly change their tune now that it appears the NDP in Edmonton and the Liberals in Ottawa may succeed. Instead, they’re stuck on the sidelines screaming, “Faster! Faster!”
Despite the humour inherent in the two Conservative politicians’ predicament, whether taking up the cry of Mr. Kenney’s United Conservative Party will actually help the Alberta NDP is another matter.
As Parkland Institute executive director Ricardo Acuña argued last week in Edmonton’s Vue Magazine, it would make more sense for Ms. Notley’s government to tell a different story. “Stop spending so much energy and communications resources talking about building pipelines at all costs and allying yourselves with industry front-groups, borderline alt-right groups, and the likes of Jason Kenney and Brad Wall,” Mr. Acuña advised the premier.
“There is definitely strong support in Alberta for getting pipelines built,” he noted, but “there are very few votes there for the NDP.”
“The folks most likely to ardently and vocally support the pipelines are also the same folks who most ardently and vocally oppose the carbon tax, the minimum wage increase, and farm safety legislation,” Acuña argued. “They will never vote NDP, pipeline or no pipeline.”
“How the NDP will find votes is by boasting about the things they’ve done that are actually consistent with being New Democrats,” he went on, listing front-line services, fair labour laws, needed infrastructure, human rights, gender equity, and the environment. “That’s the story the NDP needs to be telling if they are serious about re-election, and if they don’t begin telling that story soon, it will be too late.”
Mr. Acuña is right. That’s where the NDP will find the light at the end of the pipeline.