The curious case of Rachel Notley’s view that BC just doing ‘due diligence’ on Trans Mountain Expansion

Is Notley incompetent? Or is her goal to keep BC Premier Horgan out of the political battle for now?

Rachel Notley’s response to yesterday’s announcement that BC will use legal challenges to block the Trans Mountain Expansion pipeline is curious. The Alberta premier thinks the new NDP government is just doing its “due diligence,” but two BC cabinet ministers’ comments put the lie to that reasoning. Well, then, what the heck is Notley up?

BC Attorney General David Eby and Environment Minister George Heyman held a press conference Thursday in which they announced the John Horgan-led, BC Green supported minority government will seek intervenor status in two First Nations-led judicial reviews of Trans Mountain Expansion approvals that will soon be before the Federal Court of Appeals.

The BC NDP government strategy goes something like this.

The Canadian government is given complete jurisdiction over inter-provincial pipelines by Section 92 of the Canadian constitution. BC will argue that Section 35, which sets out Canada’s obligations to indigenous peoples, binds both the federal and provincial governments. Therefore, if BC First Nations do not consent to Trans Mountain Expansion being built on their traditional lands, then the Province of BC is bound to honour their wishes and not grant provincial permits for construction.

“Our government has been clear and consistent that the expansion of the Kinder Morgan pipeline is not in BC’s best interest. A seven-fold in tanker traffic in BC’s coastal waters is simply too great a risk for environment, our economy and the thousands of existing jobs,” Heyman said at the presser.

“We’ve made a commitment and, in fact, it’s clearly laid on in my mandate letter that we committed to use every tool available to defend BC’s coast in the face of the threat of expanded tanker traffic.”

The language is unequivocal. There is no mistaking BC’s intent to stop Trans Mountain Expansion.

Yet, when asked by reporters for comment, Notley offered a very strange interpretation of BC’s legal challenges:

“I’m pleased that once again they are doing what many people have observed over the past few weeks, that the BC government has stopped talking about stopping the pipeline and instead they’re talking about ensuring that it meets high standards,” she said.

“There is a scope within which the provincial government has the ability to exercise its authority and that’s what the provincial government is doing. But it is not attempting, in my view, to counteract the authority of the federal government to move forward on the pipeline that’s been approved, that will be built.”

She described the Horgan government’s actions as nothing more than “due diligence,” which it clearly is not, according to law professors Margot Young of UBC and James Coleman of the Dedman School of Law at Southern Methodist Univeristy.

Now, keep in mind that Notley is a lawyer by profession. She may not be a constitutional scholar, but she cannot misunderstand BC’s intent, which is to dilute federal authority over inter-provincial pipelines, giving BC the right to reject pipeline projects if it chooses.

Coleman described as “the big news” Heyman’s warning to Kinder Morgan that it should not put a shovel into the ground until the BC government gives permission. That authority clearly belongs to the Canadian government, not the province, and the warning is a direct challenge to Prime Minister Justin Trudeau.

So, if she understands the gravity of the legal challenge, what is Notley up to? There are two options.

One, a few industry insiders opined to me privately that the Premier is – how can I put this delicately? – incompetent.

Notley’s deft touch with Trudeau and her ability to secure support for Alberta’s pipeline from other key provinces, such as Ontario, suggests she is certainly not incompetent.

But I have criticized her in the past for tone deaf public comments about her intent to sell the Kinder Morgan pipeline in BC this fall with the “rule of law” argument, which is an industry talking point and the equivalent of waving a red flag in the face of Vancouver and Burnaby.

And, let’s be frank, her two key ministers on the energy file – Marg McCuaig-Boyd in energy and Shannon Phillips in environment and climate change – don’t have industry experience and are perceived by industry as being weak on energy politics.

To compound all that inexperience, Notley’s two key energy advisors are 20-something political hacks who also have no industry experience, according to a knowledgeable source.

It’s easy to see why critics leap to the conclusion that Notley just doesn’t have a good handle on the politics of this file.

The second option is that she knows something we don’t – that Horgan isn’t as keenly opposed to Trans Mountain Expansion as his eco-warrior cabinet ministers.

The NDP haven’t been in power since 2001 and the party has a laundry list of reforms and changes to implement while it has the chance, given that minority governments usually don’t survive a full four or five years.

And he has to worry about lower mainland BC voters, who overwhelmingly voted for his party in the May election and don’t want to be disappointed by waffling on the pipeline issue.

Horgan also has to worry about the man propping up his government, Green Party leader Andrew Weaver, a climate scientist by profession and a vocal opponent of Kinder Morgan.

But Calgary political scientist Keith Brownsey thinks that Weaver has higher political priorities than pipelines.

“At the top of the list for the Greens are items such as campaign finance reform, proportional representation – half a dozen other issues like this that do not affect necessarily the oil and gas sector,” he said in an earlier interview.

“But the Trans Mountain pipeline would likely be eighth or ninth on Weaver’s top 10 list of policy priorities.”

If all of that is true, then allowing Eby and Heyman to take a run at the Canadian government and Kinder Morgan is good politics for the NDP base, but if the legal challenges are unsuccessful – the most likely outcome – then Horgan suffers no or minimal political blow back from disappointed Vancouver eco-activists, who are promising “20 Standing Rocks” if the Texas-based pipeline giant fires up the bulldozers next month.

And if that supposition is true, why would Notley want to drag Horgan kicking and screaming into a public battle between the provinces? Especially since this is primarily an issue of federal jurisdiction.

Let Eby and Heyman lead the charge. They can also wear the defeat if the constitutional gambit fails. But forcing Horgan to intervene at this early stage is probably not in Alberta’s best interests.

To sum up, Notley either knows exactly what she’s doing or doesn’t have a clue. Alberta better hope it’s the former.