The B.C. government has lost another round in its battle to stop the twinning of the Trans Mountain pipeline and prevent the increased flow of heavy bitumen over the Rockies.
In a dense 65-page ruling, a unanimous five-justice division of the B.C. Court of Appeal told the province Friday it had no jurisdiction to enact legislation that would restrict the contents of the expanded conduit.
Formerly owned by Kinder Morgan, the TMX pipeline was not only a “British Columbia project,” the justices concluded: “The project affects the country as a whole, and falls to be regulated taking into account the interests of the country as a whole.”
Still, the proposed “environmental protection” law was not a “smokescreen” to hide the province’s real aim — blocking the pipeline expansion, the court concluded.
“I would not characterize the proposed amendment to the (Environmental Management Act) as ‘colourable’ in the sense that anything is being concealed; but the practicalities cannot be ignored,” Justice Mary Newbury wrote, supported by Chief Justice Robert Bauman and the other justices.
“The ‘default’ position of the law is to prohibit the possession of all heavy oil in the province above the Substance Threshold — an immediate and existential threat to a federal undertaking that is being expanded specifically to increase the amount of oil being transported through British Columbia. This can hardly be described as an ‘incidental’ or ‘ancillary’ effect.”
The B.C. NDP government had referred three constitutional questions to the high bench about the validity of the proposed law prohibiting the transportation of hazardous substances without a permit.
But only one substance was targeted — heavy oil, including blended bitumen and heavier forms of crude.
The federal government and Alberta argued the law was nothing but slight-of-hand to delay or prevent the construction of the $7.4 billion pipeline from Alberta to tidewater at Burnaby.
The B.C. government insisted it did not intend to halt the pipeline’s expansion, nor to restrict the existing volume of heavy crude that flows on the existing pipeline but to prevent any increase.
Ottawa argued that while provinces do have the authority to enforce environmental protection laws, they don’t have the right to ban a product outright moving on a federally approved pipeline or railroad.
Newbury dismissed Victoria’s argument that it had jurisdiction to pass the law because constitutionally provinces have power over property and civil rights and the proposed law was intended to protect property.
“But while the provincial head of power is broad, the authorities do not support a superior or presumptive claim to jurisdiction for the provinces by reason of the role of ‘property’; nor do they support the notion of absolute and unqualified jurisdiction,” Newbury said.
“Environmental protection is indeed ‘too important’ — and too diffuse — to belong to one level (of government) exclusively or absolutely.”
Even if it were not intended to “single out” the TMX pipeline, Newbury maintained the law “has the potential to affect (and indeed ‘stop in its tracks’) the entire operation of Trans Mountain as an interprovincial carrier and exporter of oil.”
“Both the law relating to the division of powers and the practicalities surrounding the TMX project lead to the conclusion, then, that the pith and substance of the proposed Part 2.1 is to place conditions on, and if necessary, prohibit, the carriage of heavy oil through an interprovincial undertaking,” Newbury said.
“Such legislation does not in its pith and substance relate to ‘property … in the province’ or to ‘matters of a merely local or private nature,’ but to Parliament’s jurisdiction in respect of federal undertakings under s. 92(10) of the Constitution Act. … I would therefore answer ‘no’ to the first question on the reference.”
In rejecting the province’s authority to pass the law, Newbury said she did not need to answer the remaining questions: would the law be applicable to interprovincial undertakings and if so, would existing federal law render all or part of it inoperative under the doctrine of federal paramountcy.
Copyright Postmedia Network Inc., 2019
