Trudeau’s climate change battle will be fought in the courts

Trudeau’s climate change battle will be fought in the courts

MONTREAL—When the new Parliament opens on Thursday, few paragraphs in Justin Trudeau’s speech from the throne stand to be more parsed than those dealing with climate change and the Trans Mountain pipeline expansion.

But over the next year, the real test of the balance the Liberals are attempting to strike between Canada’s energy ambitions and the commitment to reduce the country’s carbon emissions will take place in the courts, not in the parliamentary precinct.

Notwithstanding the minority status of his second government, Trudeau can count on enough support across the aisle of the House of Commons to maintain both his federal carbon tax — with the help of the NDP, the Bloc Québécois and the Green party — and the Conservative-backed Trans Mountain expansion.

By comparison, the legal battles are far from over.

At this juncture, every province west of the Atlantic region is involved in one or more court challenges pertaining to Trudeau’s pipeline and carbon pricing policies. So are a number of First Nations and conservation groups.

Over the next 12 months, every aspect of those policies will be tested or retested in a court of law.

That includes the Trans Mountain expansion whose construction is as of this week officially underway.

At the request of a handful of First Nations, the Federal Court of Appeal is currently reviewing the Indigenous consultation process that led to the reapproval of the project last spring.

In 2018, the same court forced a halt to the expansion after it found the initial consultation to have been inadequate. At the time, Trudeau opted to go back to the drawing board rather than appeal the decision.

It is the result of that second process that the Indigenous groups are now challenging.

As part of its bid to prevent the Trans Mountain expansion, British Columbia’s NDP government contends it has the right to regulate the amount of bitumen fuel that transits through its territory. The province has already lost the argument in its Court of Appeal. It wants the Supreme Court to revisit the issue.

In separate litigation, a number of provinces are challenging the federal carbon tax.

Saskatchewan and Ontario have already struck out once. In separate opinions earlier this year, a majority on their respective top benches found that Ottawa’s carbon pricing scheme is constitutionally sound.

Both provinces have taken their cases to the Supreme Court with hearings on the Saskatchewan appeal tentatively scheduled for next month.

Alberta is challenging the constitutionality of the recently overhauled federal environmental assessment process. In the immediate aftermath of the adoption of bill C-69 last spring, Premier Jason Kenney’s referred the issue to the Alberta Court of Appeal. His government’s main contention is the new regime infringes on areas of exclusive provincial jurisdiction.

There are those on both sides of the pipelines-versus-carbon-reduction debate who lament some or all of those court challenges.

But they have the merit of providing more constitutional and legal clarity in an area where comprehensive legislative action is still taking shape.

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Take the Federal Court review of the second round of Indigenous consultation that led to this week’s shovel-in-the-ground moment for the much-delayed TMX expansion.

Trudeau’s government took flak in September for declining to argue against another judicial round on the pipeline project. But Ottawa and the provinces have long been struggling with the actual scope of the legal “duty to consult” Indigenous communities on projects such as Trans Mountain.

If the court finds that the federal government met its obligation, the legal travails endured over the course of the TMX file will at least have resulted in a better-defined template for future projects.

Ditto in the case of B.C.’s backdoor bid to have some after-the-fact control over the output of the expanded TMX pipeline. At least one other province —Quebec — has found the approach inspiring enough to support it in court.

If there are to be more interprovincial pipelines built, certainty as to whether they could operate at full capacity would certainly be more than a little helpful.

And then, Canada’s climate change policy remains a work in progress.

The federal carbon tax is scheduled to increase over time.

If it is to be efficient in leading to a decrease in carbon emissions, experts agree that those increases will have to be significant.

The third parties in the House of Commons would have the minority Liberals speed up the pace of the federal emission control measures.

But it is difficult to build on a policy whose constitutional foundation is open to attacks.

At this juncture, definitive court decisions are more likely to carve a path to a so far elusive federal-provincial consensus on the way forward on energy and environmental developments than any amount of partisan and/or ideological gamesmanship in Parliament.

Chantal Hébert is a columnist based in Ottawa covering politics. Follow her on Twitter: @ChantalHbert

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