During the last month, three decisions became public that will be of great significance to all Canadians whose economic hopes rest in energy development.
On September 27, the federal Cabinet issued approval for the $11.4 billion Pacific NorthWest liquefied natural gas plant proposed for the port of Prince Rupert in British Columbia.
On October 4, Prime Minister Justin Trudeau released his government’s national carbon tax strategy, which sets a minimum levy of $10 per tonne on CO2 emissions starting in 2018, rising to $50 a tonne by 2022.
And on 22 September, the Ontario Superior Court ruled that the Ontario Provincial Police failed to uphold the law during a long and often-violent dispute over aboriginal land rights in the southern Ontario city of Caledonia.
The connection between the Caledonia lawsuit and energy development may not seem immediately obvious. Here’s why it is:
The LNG approval suggests the Liberal government is finally ready to spend some political capital on approval of major resource development projects. The government’s carbon tax, along with its aggressive climate-change rhetoric, are the presumed prerequisites for Ottawa to declare it has obtained a ‘social licence’ for at least one of the three proposed pipeline projects that would deliver Alberta oilsands crude to export terminals on the West or East coasts. And the Caledonia ruling, for whatever a single lower court ruling is worth, indicates that Canadian law still applies on Canadian soil, even when aboriginal and environmental protestors claim it doesn’t.
For years, anti-development activists have used the courts to hinder resource extraction and transportation projects, most in an attempt to prevent them altogether.
Sometimes they win, as in last year’s Federal Court decision to revoke the permits issued by the federal Cabinet for the proposed Enbridge Northern Gateway oilsands pipeline to Prince Rupert.
And sometimes they lose, as in last year’s BC Supreme Court ruling against a City of Burnaby bylaw aimed at stopping a proposed expansion of the Kinder Morgan Trans Mountain pipeline that would triple the flow of oilsands crude through the port city.
As constrained as Canadian resource development is by regulators and the courts, project sponsors and investors always understood the approval process was ultimately governed by democratically elected legislators and the regulators and judges they appoint operating under the rule of law.
What happens, though, when opponents don’t respect democracy or the rule of law?
Lawless in Caledonia
The Caledonia case is instructive. At issue in the dispute, which lasted from 2006-09, was a piece of privately-owned land undergoing residential development. With no legal licence whatsoever, members of a nearby aboriginal band invaded and occupied it. Wearing masks and carrying cudgels and sovereignty symbols such as flags, they issued ‘passports’ for non-aboriginal residents. There were blockades, assaults, and torched police cars; a bridge burned as firefighters watched because they doubted the capacity or willingness of the OPP to protect them. Eight thousand people lost power when a transformer station was set on fire.
When the OPP finally tried to enforce a court order removing protesters from the subdivision they were driven off by a mob of natives. National Post reporter Christie Blatchford described the police retreating “with their tails between their legs. It was an astonishing decimation of law that went on for years.”
The timidity of the police was a reflection of the cowardice of the provincial government, who instructed the OPP to “avoid provocative action.”
Canadian history, and particularly recent Canadian history, is replete with similar incidents of lawlessness in the name of protest, though government responses have rarely been as spineless.
For example, the present generation of anti-pipeline activists take inspiration from B.C.’s so-called “War in the Woods” during the early 1990s.
It was there that the concept of ‘social licence’ was born as a philosophical end-run around the perfectly legal operating permits held by logging company MacMillan Bloedel.
During the summer of 1993, hundreds of protesters staged one of the largest acts of civil disobedience in Canadian history, in an attempt to prevent logging in Vancouver Island’s Clayoquot Sound. Unlike Caledonia, there was little violence. And, though it took three months, the law was ultimately upheld: more than 800 people were arrested for sundry acts of vandalism to machinery and chaining themselves to trees.
Still, the protestors achieved their goals. MacMillan Bloedel never did log its Clayoquot Tree Farm Licences, and eventually the company sold them to aboriginal interests, who in turn contracted with environmental organizations to not log “ecologically intact watersheds.”
More or less as a result of the War in the Woods, hundreds of west-coast loggers found themselves permanently out of work, MacMillan Bloedel was sold a few years later to U.S. forestry giant Weyerhauser, and Tzeporah Berman, a heroine of the War, is now an internationally renowned green activist and co-chair of the Alberta NDP government’s Oil Sands Advisory Group.
Another veteran of the War, Vancouver city councillor Adriane Carr, recently warned that if Prime Minister Trudeau does approve the Kinder Morgan expansion project, it will become “his Clayoquot Sound.”
Justin Trudeau’s ‘just watch me’ moment
Nothing succeeds like success, so it should come as no surprise that if the radicals of yesterday have risen to the top of the political and bureaucratic establishment of today, the tactics and objectives they pioneered are now emulated by their modern disciples. Recent evidence includes:
– Environmental activists storm an NEB meeting in Montreal, effectively shutting it down.
– A transcontinental confederacy of native tribes signs a treaty that militantly vows to fight pipelines from Alberta’s oilsands
– In Sarnia, three people break into a pipeline facility and close a valve before chaining themselves to it.
– Kanesatake Mohawk Council Grand Chief Serge Simon warns that “when it comes to native people defending their rights, you’re going to see more resistance.”
– Activists reportedly shut down five U.S. pipelines carrying Canadian crude in a display of solidarity with a prolonged anti-pipeline protest involving thousands in North Dakota.
Two years ago the RCMP called the “anti-petroleum” movement a “growing and violent threat to Canada’s security.” Yet Prime Minister Trudeau, and fellow progressives like Alberta Premier Rachel Notley, evidently believe that such extremism can be disarmed with carbon taxes, greater regulation, and earnest commitments to ambitious emissions targets.
Instead resistance seems to be growing, in concert with economic pressure to approve new energy projects. As TransCanada Pipelines President and CEO Russ Girling has remarked, “climate change policies aren’t working to lessen the resolve of pipeline opponents who use regulatory processes to actually block approvals.”
Prime Minister Trudeau is obliged to render a decision on Kinder Morgan’s Trans Mountain pipeline expansion by mid-December. The prospect of increasing oil tanker traffic in Burrard Inlet from one a week to one a day unquestionably puts Liberal votes at risk. But, to preserve his government’s pro-business narrative (and stimulate some badly needed resource revenue) it is highly likely that the project will receive Cabinet approval.
The courts and the regulators have had their say. Now it’s between the government and the protestors. How far will the latter go to assert their demands? And will the Trudeau government have the courage to enforce its decision? More than the economic fate of the country hangs in the balance. The primacy of democracy and the rule of law are at stake too.
Half a century ago Trudeau’s father was confronted with Quebec separatists who had adopted violence and anarchy in pursuit of their political goals. He famously stared them down and even called in the army. Did the son inherit any his father’s famous “just-watch-me” fortitude?
We may soon have cause to find out.
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