Since last week’s Federal Court of Appeal decision halting construction on the Trans Mountain pipeline project, the federal government has been inundated with unsolicited advice on what to do next.
The proposed responses have ranged from the uninformed (invoke the notwithstanding clause, which simply does not apply) to the unhelpful (appeal the decision, which would delay the project by months or years, with no assurance of a different outcome) to the undefined (pass a law limiting its implications in some way, which might or might not be helpful but would itself be subject to judicial review).
The prime minister at first derided such “legislative tricks” Wednesday but later suggested he was keeping all options open. And yet the most promising response remains the one he first appeared to favour: follow the course the court prescribed.
For as much as the decision was a victory for the Aboriginal and environmental groups who had filed suit challenging the cabinet’s 2016 decision to approve the project, and the National Energy Board report on which it was based, it was mostly a victory for the rule of law.
As such it may prove to be a victory for the pipeline itself, the gravest threat to which remains not the processes set out in law for accommodating the concerns of those it would potentially affect, but the willingness of some of those opposed to defy the law to derail its progress.