‘They’re Not Getting How the Constitution Works’: Why Trudeau, Notley Can’t Steamroll B.C. on Kinder Morgan Pipeline
In the fall of 1981, Jack Woodward was a young lawyer in Ottawa when NDP leader Ed Broadbent and prime minister Pierre Trudeau struck a deal to include aboriginal rights in the Canadian constitution.
“I banged out a first draft,” Woodward recalls. “I typed it out on a manual typewriter. I had to do it in a hurry.”
In less than an hour, Woodward had laid the foundation of
Section 35, the part of the Canadian constitution that recognizes and affirms the rights of Indigenous peoples.
In the ensuing 37 years, Woodward has come to know a thing or two about Canada’s constitution. For one, he fought the
Tsilhqot’in Nation’s title case for a quarter century, resulting in the landmark Supreme Court ruling that the nation holds title to about 1,900 square kilometres of its traditional territory in B.C.
So when Woodward hears pundits and politicians
bandying around the phrase “unconstitutional,” his ears perk up.
“The government of Alberta will not — we cannot — let this unconstitutional attack on jobs and working people stand,” Alberta Premier Rachel Notley said after the B.C. government announced its intention to
limit the transport of diluted bitumen through the province in January.
“She’s completely wrong about that,” Woodward told DeSmog Canada. “And if she was right, she could go to court. But she knows she’s not right, so that’s why she’s using that word as if it is a political tool rather than a legal tool … That’s a superficial and incorrect view of how the Canadian constitution works.”
Woodward says Notley is referring to pre-1982 classic constitutional questions about the divisions of powers between federal and provincial governments.
“But since 1982, you also have the additional complexity of constitutional protection of aboriginal rights, which in some cases override either federal or provincial powers,” Woodward said.
Indigenous rights are not a footnote in the ongoing constitutional saga over the the
Kinder Morgan Trans Mountain pipeline — they’re at the centre of it. And yet, they’re virtually absent in media coverage of Canada’s pipeline pandemonium.
Beyond Indigenous rights, landmark rulings such as the Tsilhqot’in decision have emphasized something called “co-operative federalism.”
“The modern trend of federalism is that nobody has the upper hand — and everyone has to work it out,” Woodward said.
Prime Minister Justin Trudeau’s statements on the Trans Mountain pipeline also seem ignorant of that reality.
“Look, we're in a federation,” Trudeau has said. “We're going to get that pipeline built.”
But Canada’s constitution governs by the principle that you err on the side of allowing two different laws to exist if at all possible, Woodward says.
“So it’s true that Canada could authorize a pipeline, but it’s also true that B.C. could probably govern safety aspects of that pipeline within B.C. including regulation of hazardous products, such as diluted bitumen,” Woodward said.
http://www.desmog.ca/2018/04/13/the...ey-can-t-steamroll-b-c-kinder-morgan-pipeline