Right- but S.92 speaks of exclusive jurisdiction. So the province gets exclusive jurisdiction over ‘local works and undertakings’. However, there’s also no S.91 exclusive federal jurisdiction for interprovincial works not specifically described; so does this mean both jurisdictions have some room to claim scope to legislate?The Charter (including the notwithstanding clause) do not apply here but the constitution does.
s 91 provides
s 92 provides
My reading is that if a pipeline is inside a province and doesn't extend outside of it then the province controls but if the pipeline connects several provinces or simply transits a province from one to another through a third then the Feds are in charge. The responsible agency is the Canada Energy Regulator.
This is far from my area of expertise, but I think that a Federal government, with the political will, could make it happen.
Certainly the regulation of an interprovincial pipeline would seem to fall to the CER. However, I could see provinces raising challenges based on, say, S.92(13) jurisdiction over property, or over the provincial authority that has been recognized over environmental concerns… Enough to keep things very bogged down, anyway.
Equalization payments are provided for in S.36 of the Constitution Act. There’s no provision there for withholding payments based on a province not wishing to be part of an infrastructure project. Any provincial blockage of interprovincial infrastructure would no doubt come in the form of legislating and litigating; that makes it a matter for the courts to sort out.
Let’s not forget that in the past few years, SCC shot down federal overreach into provincial jurisdiction in the Impact Assessment Act reference case. It’s by no means a clean analogue. However, it does show that the SCC won’t shy away from upholding provincial jurisdiction.
All in all, there’s enough to keep a federally imposed pipeline jammed up in court for a long time. Otherwise a Conservative government would probably have already legislated.
Realistically, a path forward on a pipeline to the east is going to depend on consensus building in order to happen in a relevant time span.
