LP_468x60
ontario news watch
on-the-record-468x60-white
and-another-thing-468x60

The current Trans Mountain pipeline dispute simmering between British Columbia and Alberta brings into sharp focus certain complex economic and constitutional issues that warrant careful analysis.

Unfortunately, if you're hoping to find such a careful analysis in this column you'll be sorely disappointed, because when it comes to complex constitutional and economic issues, I don't have a clue.

I do, however, know a thing or two about politics.

And what's interesting about this pipeline battle from a political standpoint is how all the supposedly important constitutional and economic issues are actually taking a backseat to something much more primitive tribalism.

Tribalism, by the way, is what I call the basic emotional need that's buried deep in all of our subconscious minds, which compels us to align ourselves with others who are in some way similar to us.

Basically, in other words, thanks to the way evolution has hardwired our brains, we all like to identify with a "tribe."

And there are tribes galore for us to side with, from ethnic tribes to religious tribes to national tribes to political party tribes.

What's more, this sense of tribalism also makes us if only on a subconscious level wary of other tribes.

If I'm a Yankees fan, I'm predisposed to hate Red Sox fans.

Anyway, since time immemorial, politicians have exploited humanity's inherent tribal nature by adopting an "Us vs. Them" communications strategy.

Here's how it works: politicians will say something along the lines of "Vote for me, because I will protect "Us", your tribe from "Them", their tribe.

Simple, but effective.

At any rate, my point is political tribalism is rife right now in the Trans Mountain pipeline dispute.

Certainly, for instance, British Columbia Premier John Horgan, the politician leading the fight to stop the pipeline, is enthusiastically playing the tribal card

First off and most obviously, he's galvanizing the "green" tribe by emphasizing (and perhaps exaggerating) the pipeline's potential ecological dangers.

But more interestingly, Horgan is also playing up the pipeline's "foreignness."

Indeed, it seems Horgan can't ever talk about the pipeline without also pointing out that the company constructing it, Kinder Morgan, is based in Texas.

His message basically is, "This pipeline will make 'Them' (Texans) rich, without helping 'Us', (British Columbians.)

In fact, after Kinder Morgan kicked up a hornet's nest when it established a deadline to clear up the pipeline battle, Horgan declared, "All of a sudden when the shareholders in Texas issue a press release there's a constitutional crisis."

That's skillful messaging because it plays on the most basic of all tribal emotions our fear of foreigners.

And by painting the pipeline as an American project, Horgan also cleverly offsets the tribal appeals emanating from the pro-pipeline forces, who are prone to say stuff like, "This pipeline is needed to make 'Us' (Canadians) better off, so we shouldn't give in to 'Them' (A small number of American-funded green fanatics.)

Plus, in addition to stoking anti-American and green tribal sentiment, Horgan is playing up "provincial" tribalism.

We see this when he bluntly says things in the BC legislature like, "What we're talking about here is the province of B.C. going to court to assert our jurisdiction and protect the interests of British Columbians".

You might say, Horgan is employing the emotionally compelling tribal tactic of putting "Us" first.

And make no mistake, if he can manage to get British Columbians thinking in such "Us vs Them" tribal terms, it will strengthen his political position in the anti-pipeline battle immeasurably.

After all, if British Columbians come to see the Trans Mountain pipeline as an assault on their tribe, it will make them resistant to all the economic and constitutional arguments that are being trotted out to defend the pipeline.

History has shown time and time again that people will put the well-being and integrity of their tribe ahead of intellectual abstractions, such as economic interests or constitutional mumbo jumbo.

Consider how the Brexit side (which promoted mainly emotional tribal arguments to leave the EU) won the UK referendum despite all the economic warnings of doom and gloom.

Such is the power of tribalism.

Hence, from a tactical point of view, Horgan's appeals make perfect sense.

But his strategy also comes with a significant risk, since once tribal passions are unleased in a political arena, things can escalate quickly and unpredictably.

At the end of the day, the only thing that matters for people whipped up emotionally in a tribal political war, is that "Us" prevails over "Them."

Photo Credit: Victoria Buzz

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.


The histrionics unleashed by Kinder Morgan's threat to discontinue their work on the Trans Mountain expansion pipeline by May 31st have kicked off the race for the first level of government to do something stupid and very likely unconstitutional.  With the demands that action be taken immediately to solve this "crisis" (it's not really a crisis), we have already triggered the politician's syllogism: We must do something; this is something; therefore we must do this.  The somethings proposed are have already strained credulity, and one fears that it will only get worse the closer we get to Kinder Morgan's deadline.

Even before the deadline was announced, the mindless demands had already begun.  Alberta United Conservative Party leader Jason Kenney demanded that the federal government invoke Section 92(10)(c) of the Constitution in order to declare the pipeline be federal jurisdiction.  Conservative-turned-Independent Senator Doug Black tabled a bill that would do just that, which Kenney keeps demanding that the government pass expeditiously.  The problem?  That it's already federal jurisdiction because it crosses a provincial boundary, and invoking the section would not only introduce doubt that there is a question of jurisdiction where none exists, but would declare a project that crosses provincial lines to really be within a province for the sole purpose of declaring it to be federal, which it already is.  And when called out on this, Kenney doesn't have a clear answer, but will sputter nonsense.  It's just something that can be done, so they must do that something.

Federal NPD leader Jagmeet Singh has made the demand that the federal government, the provinces involved and the affected First Nations all go to the Supreme Court of Canada.  This has the virtue of not only be a something that can be done, but it has the bonus effect of punting responsibility away from political authorities in order to put it on the Supreme Court, where the parties can freely lay the blame when it doesn't go their way.  The Court, meanwhile, doesn't appreciate being used in this way, have already ruled on the jurisdictional issues and the jurisprudence is already clear, and adding in the First Nations is to confuse the issue.  While there are questions about the consultations under Section 35 of the Constitution that have taken place, that is a separate matter that has nothing to do with questions of provincial jurisdiction.  Add to that, it's already a live issue before the courts with two distinct challenges ongoing, so it would be really inappropriate for the Supreme Court to start weighing in and bigfooting the lower courts before they've had a chance to rule.  (As for questions about the United Nations Declaration on the Rights of Indigenous People and the requirement for free, prior and informed consent, that is not yet enacted in Canadian law, and is unlikely to make it retroactive to this decision, which would be the government's saving grace, as cynical as it may be).

Conservative leader Andrew Scheer has been making the demands that something be done something unspecified in order for the prime minister to give a firm date by which the pipeline can begin construction, or be "done" (the demand changes from day to day), never mind the fact that the government has no such mechanism to make those assurances.  Scheer has also demanded that the government withdraw their environmental assessment legislation and to repeal their plans for a federal carbon price backstop, even though neither has anything to do with this pipeline, and the fact that doing so would likely go against what the industry itself had been demanding they have been calling for a carbon price because it gives them certainty that they can plan for, and the current environmental assessment regime put in place by the previous government is mired in litigation, which the new regime hopes to do away with.  But it's a demand for something to be done, regardless of how useless that something is.

And then there's Alberta premier Rachel Notley, who on Monday tabled a bill that would empower the province's energy minister to, at her discretion, force companies to apply for licences to export their product, and give her the power to revoke or amend those licences at her whim.  If anyone doesn't comply, they can be fined $10 million per day for a corporation or $1 million per day for an individual.  The aim is to control what product flows to BC as a pressure tactic that would raise their gasoline prices as supply chokes off (never mind that it would actually harm the exporters financially), but it's not only overly broad, but almost certainly unconstitutional because it violates Section 92A(2), which forbids a province from discrimination in prices or in supplies of its natural resources exported to another part of Canada.  So that's a problem.  To quote economist Andrew Leach, the bill is "a backdoor inter-provincial trade tariff giving the minister arbitrary power to require export permits by destination and product."  It also doesn't do Notley any favours when it comes to arguing that a province can't introduce any arbitrary legislation that violates federal jurisdiction over things like pipelines, since she's doing just that.  But her supporters will argue that this is something, and therefore she must do this (and worse yet, Saskatchewan premier Scott Moe announced that he plans to pass a similar bill).

So now we're waiting for the federal government to act, and we'll see whether they act immediately in order to quell their critics, thus fulfilling the politician's syllogism, or if they'll try to get it right.  Bill Morneau has been dispatched to talk to Kinder Morgan about a financial stake in the pipeline if that will give them the certainty they require (thought that's not at all clear, or even what form that stake may take), while Jim Carr has said that they will table some legislation that will "re-assert jurisdiction."  One can hope that they won't be so foolish as to invoke 92(10)(c), but would rather keep to some kind of declaration that this project is within federal jurisdiction for the sole purposes of upping the division of powers analysis if they are challenged, or would invoke the powers of federal paramountcy if a province tries to pass its own legislation over the project.  There has already been a great deal of stupid over this project in the last few weeks let's hope that the federal government doesn't add to the pile.

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.