Almost all informed commentary agrees that the Federal Appeal Court’s recent judicial veto of the Trans Mountain pipeline expansion is an economic, political and constitutional disaster. The consequences of the decision, which the judges did not consider, are dire. Their decision puts at risk the $4.5 billion that Ottawa just paid to purchase the Trans Mountain pipeline. It sends yet another message to future investors that it has become impossible to build any major energy infrastructure in Canada. It means economic losses as we continue to sell our oil to the U.S. at a discount amounting to $24 million per day. And it has rekindled the sense of Western alienation; the belief that no one in Ottawa — judges or politicians — either understands or cares about the Western energy industries and the people who work in them.
Of course, all of these negative consequences could be justified if the court’s decision was clearly required by the Constitution. That’s what’s meant by the legal phrase in Latin, “Fiat justitia ruat caelum”: It means “let justice be done even though the heavens fall.” Practically, this maxim means judges are supposed to enforce the law regardless of its policy consequences. The problem is that with the Trans Mountain ruling, no one can seriously claim that the ruling was actually “required” by the Constitution. The political and economic heavens might be falling, but not because justice was done. This entire area of law — which is really public policy in disguise — has been judge-made from the start.
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