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Reality check: Could Scheer fast-track pipeline challenges straight to Supreme Court?

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Conservative Leader Andrew Scheer said that, if elected, his government would help build new oil pipelines by “fast-tracking” any objections right to the Supreme Court, but legal experts say the proposed plan is unclear.

“It’s about fast-tracking some of the questions that have been raised by people who oppose the project,” Scheer said, speaking at a campaign event in Hamilton, Ont., on Wednesday

“Fast-tracking those cases to the Supreme Court — referring those types of jurisdictional questions to the Supreme Court right away so that we can get certainty, instead of watching these court cases move slowly up and up, being appealed. We would have taken that directly to get finality on those decisions.”

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Carissima Mathen, a University of Ottawa law professor, said that while the federal government has the power to direct a reference question to the Supreme Court to get guidance on an issue, she doesn’t see how a Conservative government could actually fast-track live cases.

“He does have the power to put a question to the Supreme Court and bypass any other levels,” Mathen told Global News. “If he is talking about keeping them as live cases, I don’t know how he does that.”

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Under Canada’s legal system, reference questions are a submission by federal or provincial governments to a court on a major legal issue – often around concerns of constitutionality. There is a long history of these questions in Canada’s legal history, including the 2004 ruling around same-sex marriage and the 1998 reference on the secession of Quebec.

Elizabeth Edinger, an associate professor of law at UBC, said that if Scheer’s government is elected, his cabinet could draft a question or series of questions around the pipeline issue and put them to the Supreme Court.

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“Technically, it’s not a real case and technically it has no real binding power,” she said. “But the fact is that reference cases are guarded with great respect.”

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Getting resources to market has been a major source of anger in Alberta, where the Trans Mountain pipeline expansion project has been hit by several court challenges from provincial governments, Indigenous communities and environmental groups who fiercely oppose the project

Global News reached out to the Conservatives for clarification but have not yet received a response.

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The fate of the Trans Mountain pipeline, which the Trudeau government purchased in May, will be a key issue for voters in Alberta and B.C. but will be undecided by the time voters head to the polls Oct. 21.

Ottawa approved the $7.4-billion expansion of the pipeline, which runs from Alberta to the B.C. coast, in 2016. The federal government bought the pipeline in May 2018.

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The Federal Court of Appeal ruled a year ago of the environmental review and Indigenous consultations had been inadequate and would have to be redone. After the federal government re-did consultations and approved the project again last spring, the same groups filed new objections. The court has agreed to hear Indigenous complaints around a consultation.

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Scheer’s plan could theoretically help speed up these kinds of cases in the future.

“He can try and leapfrog these existing challenges by putting essentially the same issue to the Supreme Court,” Mathen said.

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However, Mathen and Erdinger both said they would need to see more details about whether the Conservative plan is talking about “fast-tracking cases” or referring “jurisdictional questions to the Supreme Court” and what exactly those questions would be.

The Conservatives have vowed to kill Bill C-69, a controversial piece of legislation designed to evaluate future infrastructure projects based on their impact on human health, the environment and local communities. Critics, like Alberta Premier Jason Kenney, have called it a pipeline killer.

Meanwhile, the NDP and Green Party have both called for Canada to abandon the Trans Mountain project. The Greens have also promised an ambitious platform to shift Canada’s economy away from fossil fuels and into renewable energy.

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