Trans Mountain defeat threatens Justin Trudeau’s re-election story

In 2015, Trudeau promised Canadians he would have the environmental back of the communities that host new pipeline developments. He also vowed to establish a real partnership with First Nations. The Federal Court of Appeal found that in the Trans Mountain case — the only interprovincial pipeline project the Liberal government has steered — it had fallen short on both counts.

William George, a member of the Tsleil-Waututh First Nation and a guardian at the watch house near Kinder Morgan's Burnaby facility, protests as Prime Minister Justin Trudeau speaks at a Liberal Party barbecue in Delta, B.C., on Aug 5.
William George, a member of the Tsleil-Waututh First Nation and a guardian at the watch house near Kinder Morgan's Burnaby facility, protests as Prime Minister Justin Trudeau speaks at a Liberal Party barbecue in Delta, B.C., on Aug 5. (DARRYL DYCK / THE CANADIAN PRESS FIE PHOTO)

There is no quick fix to turn the page on this week’s legal fiasco before Trudeau seeks re-election next fall.

In the very unlikely event that the government has an abrupt change of heart and cuts its losses by renouncing the expansion, it would still have the existing Trans Mountain pipeline on its hands. Between now and the election, expect protagonists on both sides of the debate to depict it as a prime exhibit of Liberal incompetence.

From a political perspective, keeping alive the notion that the project will eventually see the light of day might seem like the more expedient solution. But while the government has a number of road maps at its disposal, none offer a shortcut to success.

Trudeau can appeal this week’s ruling to the Supreme Court. But that would take more than a year and there is no guarantee the federal government would prevail.

Little creative jurisprudence went in to Thursday’s ruling. For example, in finding that the duty to consult the First Nations had not been fulfilled, the court was guided by criteria set forth by the Supreme Court.

Alternatively, Trudeau could attempt to address the failings that caused the federal court to nullify the expansion’s approval. That will be easier said than done.

Under that option, the government would send the National Energy Board back to the drawing board to assess the impact increased tanker traffic resulting from the Trans Mountain expansion would have on the coastal environment.

But the NEB findings would be just as likely to add fuel to the fire of those who oppose the project out of fear of potential spill damage to British Columbia’s coastal water as to consolidate the project’s case.

The court ruled that the federal government could not acquit itself of its constitutional duty to consult the Indigenous communities affected by the plan simply by listening to their concerns and moving on. But even if Ottawa engages in what it construes to be more meaningful consultation, it is unlikely to bring the First Nations who went to court to block the expansion around to its side.

In light of those irreconcilable differences, it would probably take more litigation to determine whether the federal government has met its obligations.

There are those who believe this week’s ruling can be bypassed at the stroke of a federal legislative pen and a legal declaration that the Trans Mountain expansion is in the national interest. But it is hard to imagine that the courts would concur with the notion that Canada’s constitutional obligations to its Indigenous peoples take second place to the resource development agenda of the federal government of the day.

It is not just Trudeau’s political capital with the First Nations that took another hit this week. His capacity to advance his environmental agenda also took a beating.

The federal climate-change framework now hangs by a thread that could be cut in next year’s election.

Andrew Scheer’s Conservatives are poised to turn the campaign into a federal plebiscite on Trudeau’s carbon-pricing scheme.

At the same time, in a Meech-style domino effect, the prime minister is losing the wide provincial support his initiative used to enjoy.

Alberta is opting out of the federal framework in protest over this week’s court ruling. That province’s ongoing participation was always contingent on NDP Premier Rachel Notley’s re-election next spring and the odds of that happening were low even before the latest Trans Mountain setback.

Trudeau’s court defeat strengthened the pre-election hand of his opposition rivals. There is little doubt that a Conservative government would have fared equally poorly in court this week. But it is the Liberals who wear the singular purchase of a $4.5-billion pipeline on behalf of taxpayers.

NDP Leader Jagmeet Singh had called on Trudeau to refer the Trans Mountain file to the Supreme Court for a definitive read on its legal standing last April. At the time, the government dismissed the suggestion out of hand, claiming its case in federal court was bulletproof.

One can’t help but think that Trudeau is at least fortunate in that he will be facing a rookie New Democrat leader next year rather than the battle-tested Thomas Mulcair.

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