Time to Include Property Rights in the Canadian Constitution -- If they were, the BC government's war on the Oil Sands would have been pre-empted...
Published in February, 2018
The reaction to the BC government's announcement last week that it would subject the transport of Alberta oil sands output to yet more environmental scrutiny was met with the same response across the board: the move is unconstitutional.
The Canadian Constitution grants the federal government authority over commerce and trade across the country.
To do so Ottawa in the case of energy transport set up the National Energy Board (NEB) as the regulator of pipelines.
But we would suggest the real problem with the BC government's threat is not so much that it is unconstitutional -- it appears obvious it is -- but that it is a violation of the rights of Kinder Morgan and its shareholders. And the NEB is part of the problem.
The rights we are referring to of course are property rights. And the NEB is by its very nature a violator of those.
The regulator that for so long has ignored the property rights of landowners who wound up with energy transport infrastructure on their farms and ranches whether they like it or not, is itself now being ignored.
Ignored by another level of government also intent on trampling property rights of farmers, ranchers and all Canadians.
While CAEPLA continues to point out that many pipeline companies acquired their Rights of Way via expropriation or the threat thereof, we cannot ignore the fact that Kinder Morgan today is being denied its property rights by the BC government.
The company owns its pipe and other infrastructure, and in fact owns its easement agreements. That they or any company -- think: Enbridge and its defunct Northern Gateway project -- should be sandbagged by endless restrictions by multiple levels of government is an injustice.
It is an injustice pipeline landowners have endured for over half a century in Canada. We are not happy to see pipeline companies themselves subject to the same abuse.
While we are debating the constitutionality of BC's obstruction on constitutional and regulatory jurisdictional grounds, we should talk about what's missing from the Constitution and what should replace the NEB: property rights.
A property rights regime would not only protect landowners and industry, it would pre-empt what could turn out to be the continued bottlenecking of Alberta's oil exports -- and an interprovincial trade war nobody wins.