This Alberta referendum question could stall West Coast pipeline: law prof

A referendum question in Alberta — pitched to protect the provinces from federal over-reach — could end up stopping a proposed West Coast oil pipeline from being built, a law professor warns.

Albertans vote Oct. 19 on 10 questions that consider Alberta’s place in Canada, immigration policies and possible constitutional amendments.

The ninth question asks whether Alberta should work with other willing provinces to change Canada’s constitution so that provincial laws prevail when they clash with federal ones, in areas of provincial or shared jurisdiction.

Andrew Leach, an economist and law professor at the University of Alberta, says that is the opposite of the rules that got the Trans Mountain expansion built.

According to Leach, if the changes proposed in question nine ever became law, Pacific Link could paradoxically face an emboldened British Columbia capable of preventing its eventual construction.

“Be careful what you wish for with any constitutional amendment,” he wrote in a recent Substack newsletter. “On this one, I’ll be voting no.”

The Alberta government, however, said the question offers voters a path toward achieving greater clarity when federal and provincial laws clash, while respecting provincial autonomy.

The stakes are not hypothetical.

Pacific Link, a proposed 1,250-kilometre oil pipeline from Alberta to the B.C coast, was designated as a project of national interest by Ottawa earlier this month.

The pipeline could be the oilpatch’s newest conduit to export markets, though it still faces a federal regulatory review and public hearings.

The Alberta government says the constitution gives provinces authority over areas such as natural resources, electricity, public lands, property and civil rights.

But federal laws sometimes clash with provincial ones and take precedence, which the province says undercuts what elected legislatures are trying to do.

Question nine, the government says, seeks to give provinces over-riding authority when the two levels of law conflict.

“This change would ensure clarity when federal and provincial powers are in conflict and make sure that provincial autonomy is respected,” said Sam Blackett, press secretary to premier Danielle Smith.

Canada’s constitution splits power between Ottawa and the provinces. Each can pass laws in its own areas, and often two perfectly legal laws cover the same ground.

A second rule, known as inter-jurisdictional immunity, protects the core of each government’s powers from the other’s laws. It is why provincial minimum wage laws do not apply to postal workers, who are federally regulated.

Question nine aims to flip the tiebreaker so that provincial law would win.

Dwight Newman, a University of Saskatchewan law professor and a Canada Research Chair in constitutional law, walked students through the issue in a recent lecture for the University of Alberta’s Centre for Constitutional Studies.

To show how provincial and federal laws can overlap, he pointed to the rules of the road.

A province sets speed limits and insurance rules. Ottawa’s criminal law covers dangerous and impaired driving. The same driver has to follow both.

Most of the time, the system works. But sometimes federal and provincial laws conflict.

When that happens, courts use a tiebreaker called federal paramountcy, which means the federal law wins. The provincial law is not struck down, but it steps aside only as far as needed for the federal law to work.

Newman argues that when the constitution was written in 1867, the two lists were read as mostly separate, so clashes were rare. Everything changed, however, after the Second World War.

In an interview, Newman said he sees federal paramountcy as one piece of a broader shift of power tilted toward Ottawa.

“I do think paramountcy is part of an extended centralization of power in Canada over the last few decades,” he said.

“Governments grew, and courts allowed federal and provincial laws to overlap far more. More overlap means more conflict. With the tiebreaker set in Ottawa’s favour, more conflicts mean more federal wins.”

The deeper problem, in Newman’s view, is that Canada’s provinces differ too much from one another for decisions made at the centre to serve them all.

“I’d emphasize there are real grievances in some provinces,” Newman said. “This is one of the challenges for Canada to wrestle with.”

Leach argues voters should judge the amendment by how it would work under any government, not just the current one.

“The constitution isn’t about the governments of the day,” he said in an interview. “It’s about the structure of the country.”

To Leach, question nine is framed in a way that suggests the provinces and Ottawa are always on opposite sides. “But the conflict can run the other way,” he said.

There are times when a province wants Ottawa to hold the stronger hand, and a constitutional rule cannot be switched on and off to suit the moment. “You have to accept that it could go a way you don’t like.”

Leach’s example is a 1979 bylaw in Burnaby, B.C., that forbids damaging trees in city parks. It had nothing to do with pipelines and was written decades before an expansion of the Trans Mountain line from Alberta to B.C. was proposed.

In September 2014, Burnaby cited Trans Mountain under that bylaw for damaging trees during survey work. Federal law required that survey work as part of the pipeline project.

Two legal rules collided. Federal law demanded the survey. The city’s bylaw, which draws its authority from the province, called to leave the trees alone.

The National Energy Board sided with Trans Mountain, ruling that federal law prevailed. Later rulings freed the company from zoning rules, building codes and other local requirements where they stood in the project’s way.

“Without these rulings, the pipeline could not have been legally built,” Leach wrote in his newsletter.

Had the changes under question nine been in place, he argues the result may have been very different. A city bylaw could have stopped a federally approved pipeline.

According to Leach’s analysis, Burnaby or any other community along the route of the proposed Pacific Link pipeline to the B.C. coast could theoretically use the damaged tree argument, or something similar, to stop the project in court.

Leach’s larger point is that the power should not go to Alberta alone.

If an Alberta oilsands mine approval can override a federal fisheries permit, then a B.C. tree-cutting permit can override a federal pipeline approval.

With any constitutional change, he said, “it is best to consider not just how new powers would help you, but also what your political opponents would do with that same power.”

A prevailing Yes to question nine, however, would not change the law right away, Newman said.

“It would tell the Alberta government to try to negotiate a constitutional amendment with other provinces,” he said. A constitutional amendment is one path, and continuing to argue the point in court is another.

“Alberta choosing this path suggests it believes the courts have not worked,” Newman said.