Pipeliners at work, somewhere in Western Canada (Photo: Kinder Morgan Inc.).

Funny, isn’t it?

Less than six months ago, tout le monde political Alberta was demanding harsh application of “the rule of law.”

This was nearly universally interpreted to mean that no legal challenge or protest against the construction of the Trans Mountain Pipeline Expansion Project could or would be tolerated.

Alberta Premier Rachel Notley (Photo: Chris Schwarz, Government of Alberta).

The government of British Columbia’s determination to exercise its right to mount a legal challenge against the TMX Project, then being proposed by Texas-based Kinder Morgan Inc., was excoriated as a violation of the rule of law by Alberta NDP Premier Rachel Notley, United Conservative Party Leader Jason Kenney, and many others.

To a significant degree courts in British Columbia have complied. “Camp Cloud” has been dismantled, its protester-residents scattered. Anti-pipeline protesters who violate the injunctive no-person’s land around the Trans Mountain terminal in Burnaby, B.C., are being sent to jail, albeit not for as long as some intemperate Alberta politicians demand.

But now that the Federal Court of Appeal has overturned the federal cabinet order allowing construction of the now-federalized TMX to proceed immediately – the rule of law in action, whether you like the ruling or not – where are the cries for the application of this fundamental part of our democratic system?

Prime Minister Justin Trudeau (Photo: David J. Climenhaga).

There’s plenty of noise, but not a peep about the rule of law.

Where we used to hear that thanks to the rule of law we were all going direct to Heaven, we are now being told that because of the rule of law we are all going direct the other way!

As a result, we are now experiencing a full-blown elite tantrum in response to the court’s unanimous decision in Tsleil-Waututh Nation v. Canada, an appeal by a coalition of First Nations governments, coastal municipalities and environmental groups of the 2016 federal cabinet order authorizing the multi-billion-dollar expansion of the pipeline to proceed.

Some of the nonsense being said and written is pretty breathtaking.

Mr. Kenney – the Alberta Opposition leader who once proclaimed “the rule of law must be enforced” and “it’s time to stand up for the rule of law in Canada” – now assails the Appeal Court judges for being “out of touch” and “living in an academic bubble” because they didn’t deliver the decision he wanted.

According to Postmedia’s National Post (and all its little local National Posts), assassins are gunning for the Trans Mountain Pipeline, Westerners are alienated and rightly so, and layoff notices are coming soon.

According to the Globe and Mail every Albertan – every single one of us! – will be impacted by this court decision, and it won’t be pretty. (This one’s behind the National Website’s paywall, so I won’t bother with a link. Suffice it to say the story doesn’t live up to the headline.)

Alberta Opposition Leader Jason Kenney (Photo: David J. Climenhaga).

No need to go on at length, except to note that according to a lot of media, it’s all Prime Minister Justin Trudeau’s fault.

No one has told us yet to light our hair on fire and run into the streets, but such a journalistic injunction would be no surprise in either local or national media.

It is an astonishing thing, especially here in Alberta, to see the oil industry not get its way, immediately and enthusiastically, no matter how outlandish its demands. So it is possible that a motivating factor for the media hysteria yesterday was merely shock that something so unexpected could happen.

Another motivation for this full-blown media swivet is certainly the triumph of political aspiration over economic reality. Doubtless to conservative publications like the Globe and Mail and Postmedia’s newspapers this looks like a rare opportunity to gin up some support for the pathetic Andrew Scheer and his disunited Conservative Party.

But there is no question that progressive politicians are stoking this frenzy too.

Environmentalist Tzeporah Berman (Photo: David J. Climenhaga).

Premier Notley, notably, announced her government would pull Alberta out of Ottawa’s climate plan as a result of the court decision and drop plans to implement the next step in the province’s controversial carbon tax.

Tzeporah Berman, the outspoken B.C. environmentalist and public activism tactician once hired by the Alberta NDP to be co-chair of the Oil Sands Advisory Group, reacted strongly to that on social media: “The courts ruled in favour of indigenous rights and acknowledged the risk to the dwindling Orca population and so Notley … pulls out of the climate plan? ‘What?! We are going to acknowledge indigenous rights and protect the whales? Well screw the climate then.’ …”

That’s harsh, especially since the Premier’s decision is probably a political necessity in Alberta now. But it’s hard to argue with the fundamental logic of Ms. Berman’s analysis.

It says something that amid all the brouhaha both the media and the Alberta government seem to have completely forgotten yesterday was the 113th anniversary of the day Alberta became a province in Confederation!

Yet the reality is that this is far from the end of the world. The Asian price differential the expanded pipeline is supposed to help Alberta bitumen fetch is, charitably, only a theory – if one on which optimistic government budget forecasts are based.

The court ruling that has everyone in such a lather is not a closed door, but a legal roadmap on how to get the project built. The court even offered a way to do the job in a reasonable time frame. Cabinet has the right to “specify a time limit within which the board shall complete its reconsideration,” Justice Eleanor Dawson wrote.

My crystal ball tells me TMX will be completed … and the economic impact will turn out to be a disappointment.

But be that as it may, this is how the rule of law works. If you don’t like it, don’t demand it.

Join the Conversation


  1. “ …The court ruling that has everyone in such a lather is not a closed door, but a legal roadmap on how to get the project built. The court even offered a way to do the job in a reasonable time frame. Cabinet has the right to “specify a time limit within which the board shall complete its reconsideration,” Justice Eleanor Dawson wrote… “You’re right, of course … but it’s beside the point. The NDP ship of state was already leaking, not due to poor governance or any other objective deficiencies, but due to the wave of hysterical hate promulgated by the UCP, the Online Tory Rage Machine, and their mainstream media fellow travellers. Getting construction under way was the only hope, however slim, to get that ship floating more securely and steer them into the next election with a chance of success. This decision by the Federal Court of Appeal has effectively torpedoed them, since even if the federal government follows that “legal roadmap” to the end and the pipeline gets approval that stands up in court, it’ll be too late for the Notley government.

    They’re going to go into next spring’s election with not one, but both, hands tied behind their backs, and there is every indication that the odious Jason Kenney will be Premier before we get much older. You & I & many other readers of this blog won’t like it—and I sincerely hope I’m completely out to lunch on this—but a cold, dispassionate assessment of the political entrails can lead to no other supportable conclusion.

  2. With respect to AB/Canada’s gov’t coffers ultimately profiting from the ‘Asian price differential’… not so much, according to, Ross Belot, a Canadian retired energy exec. who keeps pointing out that most enhanced profits will be taken outside Canada.

    Belot has published several critiques of the Asian market arguments. Below is an excerpt that raises an issue I’ve never seen reported elsewhere. (Belot’s mini-bio at the bottom). He’s published in iPolitics, an online news org. To my knowledge, the Postmedia MSM pub’s have not done any significant examination of the issues he raises.

    EXCERPT: ‘Yes, an expanded Trans Mountain line would be a cheaper way to get Canadian heavy crude to Asia, preferable to going all the way to the Gulf Coast first. But it’s not going to shift Edmonton prices. The whole benefit of the line will accrue only to those who ship on it — they will get their product to Asia cheaper. But the Edmonton market price will still be set by the last barrels produced that will continue to clear in the Gulf Coast.


    Why is this important? Because Trans Mountain will be a windfall only for the companies shipping on the line. And for many of those companies, the benefit will occur outside Canada — providing no benefit to Canada at all.

    For example, Tesoro has a refinery in Anacortes, Washington. It was identified as a committed shipper in Kinder Morgan’s NEB submission. It has zero oil production; its whole drive is to buy cheap in Edmonton and back out expensive crude in its refineries in Anacortes or California. There is no benefit to Canada in such an operation; all the profit lands in the United States.

    Similarly, if companies like, say, Shell ship on the line, they’ll buy cheap in Edmonton and then sell at a profit in other regions (a concept known in the industry as ‘arbitrage’). So a good portion of the volume moving will have no benefit to Canada.

    How about the access-to-other-markets argument? Mexican Maya crude is moving now to Europe and Asia. Once crude makes it to tidewater, it has low-cost access to markets around the globe. Our crude is already seeing the effects of these movements to Asia because it competes with Maya to get into refineries in the Gulf Coast. There is no ‘new market argument’ here in today’s environment.’

    EXCERPT: ‘Why is Canada hell-bent on building a pipeline and shouldering the risk that comes with it, when most of the economic benefits are going to be leaving the country?’

    Ross Belot is a retired senior manager with one of Canada’s largest energy companies. In over 30 years in the energy sector he has gained an in-depth understanding of the economics of global and Canadian crude oil, refining and petroleum products economics and logistics.

  3. It appears to me that the Trans Mountain expansion’s approval was denied for the same reason Northern Gateway’s approval was denied, inadequate consultation with the affected Indigenous groups. A little different response from Trudeau to each case. In 2016 he asked the NEB to end the Northern Gateway application because he didn’t want tanker traffic in the Douglas channel, even though he could have consulted more with the affected Indigenous groups and got Northern Gateway approved as he plans to do with the Trans Mountain expansion. The reason I bring this up is LNG Canada’s proposed export terminal for Kitimat B.C. This proposed export terminal is going to export compressed LNG by tanker through the same Douglas channel. Total investment is something like $40 billion. Will this go ahead or will the furor over Trans Mountain spook investors? Does the hull and prop on a LNG tanker have less effect on marine life than an oil tanker? We now have over 200000 barrels a day being transported by train with this predicted to increase, is this better than a pipeline? But the real question is will or can any new O&G projects go ahead in Canada and what will be the costs in revenue and jobs?

  4. “The Premier’s decision is probably a political necessity in Alberta now.”

    What does Notley have to gain by pandering to the right?

    More empty threats from Alberta?
    The court judgment goes against her, and Notley yanks her support for a national “floor price” on carbon.
    AB’s tiny carbon tax was a fig leaf — a cynical quid pro quo in exchange for new pipelines. Hopelessly contradictory policy.
    Once again, the media fail to call out Notley on her outrageous behavior and flip-flopping.
    Notley scolds Premier Doug Ford in Ontario for obstructing a federal carbon tax, but turns around and does the same thing herself.

    As Notley and other premiers have pointed out, Trudeau doesn’t need the provinces’ permission to enact a national price on carbon.

    “Premier Scott Moe’s Saskatchewan and Ford’s Ontario have said they will take Ottawa to court over this federal plan.
    “Notley was skeptical about their chances, noting that the outcome of a legal challenge against Ottawa’s plans would be “very clear in the courts” and one she believes would not be in either Ontario or Saskatchewan’s favour.
    “‘What Ontario is doing is opening the door for Ottawa to step in,” she said, referencing how the federal government has said it will step in with climate change policies in provinces that don’t have them. “‘(Ontario) is walking away from a level of agency and authority that they previously had.”
    “Constitutional and environmental law experts have agreed with Notley’s position in support of the federal plan to impose a nation-wide price on carbon.”

    “Alberta’s Rachel Notley expects to have some ‘interesting conversations’ with Ontario’s Doug Ford about climate policies”


  5. A resource law lawyer at U of C replied to some of Kenney’s BS commentary about the ruling.
    More than a little of the Kenney/UCP and CPC commentary is pure Trump-style BS.
    A number of experts on the issues have critiqued Kenney.

    EXCERPT: Martin [email protected] Aug 30

    Martin Olszynski Retweeted Jason Kenney

    Your government radically changed the standards in 2012 (Bill #C38), including imposition of time limits which may well have contributed to NEB’s error here. That it was the sole responsible authority may also have contributed to its narrow regulatory focus. Haste makes waste.

    Jason Kenney @jkenney

    3/x We cannot function as a prosperous, modern society with an ever-changing legal standard on issues like environmental impact and Indigenous consultation.
    1:04 PM – 30 Aug 2018

    1. Andrew Coyne tags Kenney for wanting judicial activism, and the general BS from the RW media ecosystem about the court/NEB ‘moving goalposts’.


      excerpt: ‘Indeed, I have not seen much in the way of serious criticism
      of the court’s reasoning, only of its conclusions; the objection seems
      not to be that the decision was wrong, but that it was inconvenient.
      Perhaps it was. But that is not the business of the courts. Their
      business is to apply the law.

      Those, such as Alberta’s Conservative opposition leader, Jason Kenney,
      who fume that the court ignored the economic impact of its ruling, are
      essentially calling for their own form of judicial activism: the
      tailoring of legal judgments to suit particular social objectives,
      rather than in strict conformity with the law.’

      excerpt: What counts as “meaningful” consultation is certainly open to interpretation, but in fact the jurisprudence has interpreted it in fairly precise terms, as more than merely taking note of Aboriginal concerns but responding to them, and accommodating them so far as is reasonable. There is no evidence that the court was freelancing here, or “moving the goalposts,” as it has been accused of doing.

  6. I’m currently looking across Georgia Straight. The Straight is full of boats including coal tankers just on the other side of Gabriola Island to keep them mostly out of sight. To my knowledge, not one of them, commercial or recrational, received environmental approval or indigenous consent to be there. Yet the rule of law says Canadian oil tankers alone now do (foreign ones do not even if they frequently transit the inside straight). Woodfibre LNG tankers currently don’t either, if it ever gets built. The rule of law seems to be very narrowly applied. This ruling will not help the Orcas, because what has pushed them to brink is still pushing just as hard as ever. Something needs to be done, but making it the NEBs job to save the whales will be totally ineffective.

    1. A very good point, according to portvancouver.com 3160 vessels come into the port per year, how can anyone realistically say that the number of tankers to be loaded at the TMX terminal per year will will finish the Orcas. There is no doubt marine life health is an important issue but to blame it on an additional 330 oil tankers per year when there is already over 3000 vessels entering the port seems a little disingenuous!

    2. Absolutely agree. Oil and natural gas are being singled out completely. More coal leaves Vancouver harbour everyday in quantities larger than any other NA port. No court ever approved this, no rules were ever put forward prior to this being legal. It just is. Somehow the double hulled tankers for oil or LNG are more of a problem for the orcas than the coal haulers or the insane amount of tourist boats ripping around the harbour looking to get as close to the orcas as possible for the tourist viewing pleasure.
      It is a singular focus on oil and gas…..pardon me, CANADIAN oil and gas. Tides Foundation and others have funded this focussed attack and we are happy to take the bait.
      Did you ever wonder who funds Tides? The Koch brothers. These guys are the largest refiners in the US and they benefit from every oil barrel that is sent to the USA. They are very intent on preventing any other market as it will lead to less profit for them. We are incredibly naive up North. Just follow the money.
      Replace that coal with LNG Vancouver and we will create more CO2 reduction from China than shutting down every economic activity in Canada. Let’s readjust here. We’ve been duped. Natural gas gives off half the CO2 and the world will replace coal with it because it’s more economic. The USA has decreased their CO2 emmissions by exactly this.

  7. Who decided Tsleil-Waututh Nation v. Canada?

    The Honourable Eleanor R. Dawson
    Appointed a judge of the Federal Court of Appeal, December 28, 2009

    The Honourable Yves de Montigny
    Appointed Judge of the Federal Court of Appeal on June 19, 2015

    The Honourable Judith M. Woods
    Appointed Judge of the Federal Court of Appeal on June 16, 2016

    Kenney hating on Kenney is a deeply entrenched, long running theme.

  8. The FCA decision in TM is a legal abomination that has little or no chance of being upheld on appeal if Trudeau actually grows a pair and does so. Judge Dawson bases her ruling primarily on her own previous decision in the Northern Gateway case that likewise should have been appealed, but wasn’t because it gave Trudeau cover for cancelling Northern Gateway. It should have been appealed because it represented an outrageous incursion into democratic governance, namely cabinet deliberation and decision making, by unaccountable unelected judges. Trudeau’s political gambit not to appeal Northern Gateway is now the petard with which he is hoist.

    What’s even more egregious, from a jurisprudential perspective, isn’t Judge Dawson’s citation of her own decision in support. Rather, it’s the fact her decision is completely devoid of reference to the Dec/17 SCC decision in Ktunaxa Nation. This is noteworthy because the primary issue in Ktunaxa Nation is “duty to consult” FNs. Yes, you’re reading that right – in deciding a case on the issue of “duty to consult”, Judge Dawson referred repeatedly to her own case, but not a more recent Supreme Court of Canada case directly on point!

    And what did the SCC say in Ktunaxa Nation about the “duty to consult”? Basically, that courts must be highly deferential to a government’s consultative process and only overturn a decision made following that process if the process was “unreasonable”. Even the most fervent FN consultation fetishists are hard pressed to argue that a consultation process that received submissions from every single FN even remotely affected by a project, as well as 1,400+ other intervenors was “unreasonable”.

    In short, Trudeau is now damned if he does and damned if he doesn’t appeal the FCA decision – appeal it and he pisses off the progressive left in a likely electoral battleground, don’t appeal it and not even the wagon circling by media and academic elites that’s already occurring around Judge Dawson’s “prolix, amateur-hour riff of a judgment” will keep its noxiousness concealed.

  9. I think your crystal ball is correct. Ultimately the Trans Mountain pipeline will be built. It may or may not live up to expectations in the end.

    Like the twists and turns of the rivers that flow to the pacific, getting the pipeline built will not be steaightforward. The recent court case is an example of this, just when we thought it was moving ahead.

    I can understand the frustration and disappointment in Alberta, but I suspect there is some good reason for the judge’s decision. The process was not found to be adequate, but fortunately for pipeline proponnents they were granted a do over – try again and this time do things better.

    Yes the delay is frustrating but Alberta’s economy is stronger and more resilient than some doomsayers give it credit for. Yes it is a bit of a downer but it is not the end of the world. We will survive and probably get through all of this fine. Maybe the next boom will have to wait a bit, but oil prices are continuing to recover and strengthen and so will our economy.

    A good thing about the judge’s ruling is it takes the politics out of it some. This is not a fight now between governments or between environmentalists and the energy industry, in this ruling it is really about having a rigorous process and in the long run that’s a good thing.

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