The SNC-Lavalin affair suggests it’s time for the Liberals to stop all the virtue-signalling

A few random thoughts following our Prime Minister’s content-free press conference this morning on the SNC-Lavalin affair.

We have the minority Conservative government led by Stephen Harper in 2006 to thank for the establishment of:

  • the Public Prosecution Service of Canada (PPSC) which gave greater independence to, and provided further separation of, the prosecution service from the Minister of Justice;
  • the office of the Conflict of Interest and Ethics Commissioner;
  • the Commissioner of Lobbying;
  • the Public Sector Integrity Commissioner to protect whistleblowers;
  • the Parliamentary Budget Officer.

These offices and services, some of which were driven, in part, by the findings of the Gomery Commission that investigated the Liberal sponsorship scandal, were implemented as part of the Conservatives’ Federal Accountability Act in 2006.

So, Conservative efforts at making government more accountable are core to the mess the current government finds itself in. As a result of the Federal Accountability Act there is greater transparency with respect to who is lobbying the government, who they are meeting with and the purpose of their lobbying efforts. There is a very clear process that the Attorney General of Canada must follow if they wish to intervene in a public prosecution. There is also a clear process for investigation and resolution of (narrowly defined) breaches of ethics or conflicts of interest by parliamentarians – not without merit but clearly insufficient for addressing the current SNC-Lavalin issue.

The Liberals have made and continue to make changes, too. They introduced, in an omnibus budget bill, legislation that enables deferred prosecution agreements, a tool that can be used as an alternative to criminal prosecution by the PPSC at its discretion. This legislation does appear to have been brought in in response to SNC-Lavalin’s transparently reported lobbying efforts, albeit somewhat covertly in a budget bill. The Liberals are also contemplating changing the rules of the integrity regime by altering the debarment penalties companies convicted of serious crimes face. The current 10-year prohibition on bidding for federal contracts put in place by the Conservatives may be reduced or even eliminated in some cases by legislation being promoted by Carla Qualtrough the minister in charge of procurement. Such a change could potentially work in SNC-Lavalin’s favour if it is convicted of wrongdoing in the case currently being prosecuted against it by the PPSC.

That’s quite a contrast, both philosophically and in terms of potential effect. Which kind of begs the question when it comes to serving the public interest, should pragmatic concerns expressed by the current government as a focus on “jobs, jobs, jobs” (even if they really mean “votes, votes, votes”), override upholding the longstanding principles embodied by the rule of law and the prohibition against parliamentarians to interfere in the administration of justice, or vice versa? It’s worth noting that the Federal Accountability Act has been shown by this affair to have some real utility and effectiveness, although it possibly doesn’t go far enough. Recent events and the legislative track record of the former and current governments should, one would hope, put an end to the endlessly propagated absurdity that the latter is markedly more virtuous than its predecessor. Anyone who is still holding onto that notion hasn’t been paying attention.

Re the Trans Mountain Pipeline – Justin, call Donald

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On April 15 the nation saw the reaffirmation of Justin Trudeau’s non-leadership on the Trans Mountain pipeline project. Following his meeting with premiers Notley and Horgan, Trudeau revealed that his government would be entering financial talks with Kinder Morgan aimed at providing the pipeline’s proponent with the certainty it requires to proceed. It is not clear that a financial backstop is the sum total of what Kinder Morgan was seeking when it asked that its concerns over the future of the project be resolved by May 31.

Kinder Morgan is a transportation company that builds fully approved and regulated pipelines to deliver oil and gas produced by its customers from point A to point B. It is not a flag-bearer for a political philosophy or ideological group. Its opponents on this project, however, are a very vocal, highly politicized and ideologically driven sub-set of the Canadian population with numerous axes to grind; anti-oil sands, anti-capitalist, anti-colonialist, to name a few. While a minority, these groups have influence out of proportion to their size including allies among some of Trudeau’s closest advisors. They are making every effort with their opposition to the Trans Mountain pipeline to draw a line in the sand and to force the government to cross it.

Both Kinder Morgan and its opponents rely on the rights delivered by Canada’s democratic institutions to allow them to go about their business, express their point of view, and not be interfered with or obstructed in their various enterprises by anyone without the appropriate cause or authority to do so. This is the “rule of law” referenced endlessly whenever this project is discussed. We accept the rule of law in our daily lives almost unquestioningly. By way of illustration, if you fail to pay your taxes you may be subject to fines and could face a prison term. People generally pay their taxes knowing that the government has the legal authority to collect them while also understanding that it has the coercive power, i.e., the police and court system, to enforce the law.

Opponents of various government policies or corporate activities have every right to protest against them by exercising their freedom of expression or to mobilize politically. The next level of engagement is to participate in or instigate acts of civil disobedience. There is a line that most of us understand should not be crossed; when these acts become criminal in nature and harm is done to persons or property. Those who choose civil disobedience often feel justified in their actions because they believe that theirs is a just cause, that they occupy a moral and ethical position that gives them licence to obstruct and push against or beyond legal boundaries.

Trudeau’s Liberals have been spinning a narrative from before the 2015 federal election that seemed bound to fuel anti-pipeline sentiment. They began by branding the NEB and its approval mechanisms as badly flawed or even broken. The previous Harper government had made efforts to streamline what was already an arduous process, principally by limiting consultations to those who might be directly affected by a given project. This was characterized as “gutting” the existing safeguards, the implied message being that existing pipelines and projects under review were not subjected to adequate scrutiny and therefore posed undue risk to the environment and to public safety. Even a superficial review of the safety and reliability of the 73,000 kilometres of NEB-regulated pipelines in Canada reveal this to be fatuous nonsense. The Liberals promised to revamp the process and restore the public trust they were largely responsible for undermining.

This narrative, while obviously useful to the Liberal electoral effort to demonize the Harper Conservatives, has also served to solidify the resolve of those already disposed toward actively opposing pipeline projects. Once elected, the Liberals then cancelled the Northern Gateway pipeline project claiming the cartoonishly named (by activists) “Great Bear Rainforest” was no place for a pipeline and also imposed a ban on tanker traffic along B.C.’s northern coastline. These arbitrary decisions, made without any visible signs of the “evidence-based” policy-making philosophy the Liberals claim they adhere to, must have been for the environmentalist crowd like catnip for a tabby. The ascension of an anti-pipeline NDP/Green provincial government in B.C. that since taking office has actively sought to derail the Trans Mountain project despite having no jurisdiction in the matter would have further agitated their already fevered minds.

The tepid support for the project since approval from Trudeau and key ministers like Jim Carr (Natural Resources) and Catherine McKenna (Environment and Climate Change) suggested that the government’s own heart was not really in it. Meanwhile, Kinder Morgan was discovering that the business of getting the thing built was not going to be easy with petty bureaucratic roadblocks being erected by the local municipal government in Burnaby being just one obstruction.

It has become more and more apparent that all the political wrangling and legal arguments are not and never were going to be the real battle. The real battle, and likely greatest source of uncertainty for Kinder Morgan, is what will take place on the ground when the acts of civil, and possibly criminal, disobedience become the centrepiece of everyone’s daily newsfeed. And that’s when the prime minister who has tried to substitute charm, endlessly repeated and often inane talking points, and largely pointless globetrotting for actual leadership is going to run aground.

Kinder Morgan just wants to build and operate transportation infrastructure to serve its clients as it believed it had the right to do and has reliably and safely done with its existing Trans Mountain pipeline for over sixty years. It doesn’t want to be defending the ramparts from the hordes in their trendy hiking gear or Alpaca wool ponchos, waving placards and chaining themselves to construction equipment. Demanding reassurance from this government is not gamesmanship but a sensible and prudent decision. There are other places where Kinder Morgan can operate that offer a more predictable business environment, the U.S., for one, where it won’t be necessary to die on some hill it has no interest or obligation to defend.

So how does the PM extricate himself from this ugly mess he has played a large role in creating? The first thing he should do is place a call to Donald Trump. Why Trump? Because, unlike Trudeau, Trump has confronted a similar situation and resolved it with swift and decisive action.

For months, during the late days of the Obama administration’s reign, opponents to the Dakota Access Pipeline project had occupied a tent city obstructing work on the project. Obama had ordered the U.S. Army Corps of Engineers to conduct a full environmental impact assessment and issue an environmental impact statement. The Corps of Engineers had previously reviewed the route and found no significant impact. Shortly after taking office in January and February 2017, President Trump first reversed Obama’s legislation and then ordered the Corps of Engineers to conclude the environmental assessment. The project was completed in April and oil began flowing through the pipeline in May.

More than 1,000 permits and approvals were granted for the pipeline from a host of regulatory bodies. Engineering plans for the pipeline addressed a major point of contention, the risk associated with passing under Lake Oahe, by burying the pipe more than 95 feet below the lake bed – far deeper than the seven existing pipelines that already traversed the bed of the lake. Court actions may continue, but the pipeline is a physical reality.

Protesters in the camp were given a deadline to leave and the evacuation was completed only a day late in fairly orderly fashion. Unlike Trump, Trudeau does not need to expedite the permitting process as Trans Mountain has been approved by the NEB and by cabinet, and the jurisdictional right of the federal government is beyond dispute. What he does need to do is acknowledge that threat of disruptive behaviour by activist protesters is the one significant roadblock to getting the pipeline built and that the perceived weakness of the government with respect to upholding the rule of law is the primary source of uncertainty for Kinder Morgan. That he and his government have the will to stop unlawful actions, even at the risk of losing approbation from many of the groups they have so assiduously courted, is the message he must sell.

The question, yet unanswered, is whether the prime minister is capable of a believable performance as a tough and principled leader who will back up his “it’s in the national interest” mantra with decisive use of the coercive power that rests with his office. Such a persona is entirely at odds with his irrational desire to endlessly consult with everyone on every issue. “Sunny ways” just won’t cut it this time.