RCMP officers gather nearby as protesters opposed to the Kinder Morgan Trans Mountain Pipeline expansion defy a court order and block a gate at the company’s facility, in Burnaby, B.C., on Saturday April 28, 2018. (Darryl Dyck/The Canadian Press)

B.C.’s dispute over bitumen control likely to end up in Supreme Court: lawyers

Non-essential work on Kinder Morgan’s Trans Mountain pipeline has been halted

British Columbia’s court case over the flow of heavy oil through the province could be damaged by the NDP government’s previous positions against the expansion of the Trans Mountain pipeline, says a legal expert.

The provincial government filed a reference case Thursday in the B.C. Court of Appeal asking whether amendments it is proposing to the Environmental Management Act are valid and if they give the province the authority to control the shipment of heavy oils based on the impact spills could have on the environment, human health or communities.

The province is also asking the court whether the amendments are over-riden by federal law.

READ: B.C., Alberta clash as Kinder Morgan suspends Trans Mountain work

Nigel Bankes, chair of natural resources law at the University of Calgary, said he believes the province will lose on the validity question because it is targeting a federally approved project, even though the legislation covers broad environmental concerns.

“All rhetoric, all the public announcements, all the announcements from the premier and the relevant ministers make it clear that this legislation is actually directed at Trans Mountain,” he said.

Bankes said a precedent was set in 1984 when the courts ruled the government of Newfoundland and Labrador acted outside its authority by introducing legislation that disrupted Quebec’s right to access hydroelectric power from Churchill Falls.

But Prof. Bruce Ryder of York University’s Osgoode Hall Law School said that case differs from B.C. because the legislation addresses all heavy oil, not just one particular project.

Decisions made the B.C. Supreme Court in favour of lower levels of government having the authority to create environmental protections in relation to the Northern Gateway pipeline could also support the province’s case, Ryder said.

Ryder said he thinks the court will approve the validity question. But he said there is greater uncertainty over permits that would be needed to ship heavy oils through the province because that could be seen to impair or block federal projects, which “would clearly be unconstitutional.”

“What we don’t know are the details of how the permitting process will work, whether a permit will be granted when requested, what conditions would be attached to it, and absent of specific context with those actual details, it would be difficult for the court to give anything other than a somewhat speculative answer,” he said.

The court could either refuse to answer the question due to a lack of information or, more likely, provide guidelines on how permitting could work that operates within the constriction, he said.

Carissima Mathen, vice dean of the University of Ottawa’s law faculty, said there is a clear conflict between the B.C. legislation and federal law.

“I haven’t seen any argument as to why the federal government doesn’t have authority to regulate this interprovincial pipeline the way they have authority over all kinds of other interprovincial undertakings,” she said.

Ryder said if the province’s legislation is found to only add conditions to the shipment of heavy oils, the court could determine it does not conflict with federal law.

But if the federal government introduces new legislation to “fortify” its authority over Trans Mountain, it could crush B.C.’s attempt to have some legal jurisdiction, he added.

All the experts expect the case to be appealed to the Supreme Court of Canada.

Kathryn Harrison, a political science professor at the University of British Columbia, said there are many areas where provincial and federal jurisdiction come into conflict, but given the fact the environment is not addressed in the constitution, legal battles over environmental authority are rare.

“It would be good for Canada and the global environment if we had more disputes over environmental jurisdiction,” she said, adding negotiations and compromise often result in “watering down” policies.

___

Here are the three questions the B.C. government has referred to the Court of Appeal:

1. Is the draft legislation within provincial jurisdiction to enact?

2. Would the draft legislation be applicable to hazardous substances brought into British Columbia by means of an interprovincial undertaking?

3. Is there any federal legislation that is inconsistent with the proposed amendments that would render the proposed amendments inoperative?

Linda Givetash, The Canadian Press


Like us on Facebook and follow us on Twitter.

Just Posted

Devastating house fire in Millet area Oct. 17

Tetlock family has GoFundMe set up after losing everything they own

Three cannabis retail developments coming to the City of Wetaskiwin

Legalization leads to high costs for the city

Mentally healthy workplaces boost bottom line: speaker

Robert Manolson says employees looking for kinder workplaces

Wetaskiwin reader horrified at Trudeau’s weakness

Trudeau ignores child murderer’s transfer: writer

Federal carbon tax rebates will exceed the cost for most people affected

Officials say 70 per cent of people in those provinces will get back more than they end up paying out as fuel costs rise to incorporate the carbon tax.

Ponoka plays host to music arts program aimed at empowering youths

Ponoka Secondary Campus Grade 7s learned about awareness through song writing

$38,000 power bill in Ontario raising red flags for Albertans

MP Blaine Calkins is concerned about the potential costs of power for Albertans

Canadian troops, families take shelter in hotel after Florida hurricane

Most of the Canadians were evacuated from the military base before Hurricane Michael

Mega Millions, Powerball prizes come down to math, long odds

Biggest myth: The advertised $1.6 billion Mega Millions prize and $620 million Powerball prize aren’t quite real

2 Canadians advance to finals at world wrestling championships

Olympic champion Erica Wiebe just missed joining them with a loss 3-1 to three-time world champion Adeline Gray of the United States in the 76-kg event

Outdoor retailer MEC vows to boost diversity after online complaint

Mountain Equipment Co-op was criticized for perpetuating a white-only picture of the outdoors

Trump vilifies caravan, says he’ll cut Central American aid

Despite Mexican efforts to stop them at the Guatemala-Mexico border, about 5,000 Central American migrants resumed their advance toward the U.S. border Sunday in southern Mexico.

Rotating strike in Toronto will have ‘significant impact,’ says Canada Post

Canada Post union announces rotating strikes in four Canadian cities.

Most Read