As the high drama over Kinder Morgan's "deadline" for whether or not they'll continue to invest in the Trans Mountain expansion looms, the demands from the Conservatives for legislation to "solidify" the federal government's jurisdictional claims have not abated, under the pretext that the government has set the expectation that this will happen, despite the fact that they keep insisting that they are merely "exploring legislative options."  To add to these cries was a Senate public bill, sponsored by Conservative-turned-Independent Senator Doug Black, which seeks to declare the project to be in the national interest in legislative terms.

While the bill did pass the Senate, it was by no means unanimous, and it's more than a little dubious, constitutionally speaking (which we'll return to in a moment).  Regardless, we've seen demands in the past week that the government exert its authority to fast-track the bill in the House of Commons.  The problem, of course, is that there is no actual mechanism to do that procedurally that will make any bit of difference.  And the Conservatives know that, of course, but it doesn't stop them from making these demands because it feeds the narrative that they're building that the government is doing nothing about the problem, and that they would have some kind of offer to make if they were in government.  It's not true, of course, but since when does truth matter to this current crowd?

The government, meanwhile, has made the very sensible and correct point that they already have jurisdiction over the pipeline.  It crosses a provincial boundary, and that automatically makes it federal jurisdiction.  The very real potential problem with drafting a bill to assert that jurisdiction is that it has the very real potential to muddy the waters and give the impression that there is merit to BC's court reference that they can regulate what goes in the pipeline.  They can't just like Alberta can't actually "turn off the taps" to BC with regards to the existing Trans Mountain pipeline without tripping over federal jurisdiction.  Hence, Alberta has to rely on the workaround of telling producers that they're not allowed to send their product to that pipeline, which can't make those producers very happy either (and that may wind up backfiring on them if it costs those producers more money in the long run).

We should first remember that thus far, the BC government's "attack" on federal jurisdiction has pretty much amounted to a press release, and a court reference that is almost certainly a losing bid in terms of getting clarity as to what belongs in their jurisdictional domain.  The narratives around the court references are also something that needs a bit of clarification, because the NDP keep insisting that there's some inherent contradiction in the government not seeking a reference of their own, while still intervening in BC's reference.  Because it's a jurisdictional question, they are obligated to present their own case essentially, to remind the BC Court of Appeal of Supreme Court of Canada jurisprudence that yes, this is within the federal government's constitutional domain.  If they had sought a reference of their own, it would again leave the impression that there was some question that needed clarification.  There isn't.

This brings us to Senator Black's Bill S-245, An Act to declare the Trans Mountain Pipeline Project and related works to be for the general advantage of Canada.  The biggest problem with this bill is that the preamble of the bill invokes Section 92(10)(c) of the Constitution Act 1867, which would declare a project that is within the confines of a single province to be federal jurisdiction.  But as we've established and if you're capable of reading a map the pipeline is not confined to a single province, hence it's already federal jurisdiction.  By using legislation to invoke this section, you're giving the impression that it's not already federal jurisdiction, or you're saying that this federal project is really provincial for the sole purpose of "affirming" that it's federal, which is constitutional lunacy.  No government should seriously contemplate this course of action.

Now that the Bill has passed the Senate on a vote of 54 to 15 (with six abstentions), there are demands that the government somehow fast-track this bill so that it can meet Kinder Morgan's artificial deadline.  That's not going to happen.  Because this is a Senate public bill the equivalent to a private member's bill it goes into the Commons' Order Paper rotation with private members' business.  That means when the list refreshes with thirty new items of business, it will be one of those thirty, and it will be debated in the Commons like any other private member's bill.  The government has no mechanisms to fast-track this.  The only think that might happen is for all MPs to give unanimous consent to move adopt the bill, which is never going to happen.  The NDP, nor Elizabeth May, nor the Bloc or ex-Bloc MPs would give consent, and the Conservatives know this.  And frankly, given the fundamental flaw with the bill, I fail to see why the government would want to let it go ahead either.

So just what kinds of legislative options might the government be considering, you might ask?  The one thing they can do, and still might, is put forward a bill that would declare the pipeline to be in the national interest insofar as it becomes a matter of federal paramountcy.  What this means is that if a province like BC were to pass a bill of their own to exert some kind of jurisdiction over this pipeline or its contents, that the federal bill would invoke the issue of paramountcy, which is the constitutional doctrine that where you have a federal and a provincial law competing on an issue, that the federal government wins out.  But we're not at that point yet, so drafting a bill to that effect is both premature and escalates a situation where tempers are already running hot because some of the players are being huge drama queens about it.  This isn't some kind of constitutional crisis, nor is BC operating as some kind of "rogue state," despite what you may have heard.  And right now, the federal government keeping a cool head is probably the best thing that can happen, lest things spiral out of control.