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

B.C. chiefs show solidarity with Wet’suwet’en hereditary chiefs

Chiefs from around B.C. outside the Coastal GasLink pipeline route in Smithers show support.

Woman killed in head-on crash near Vanderhoof

RCMP say driver crossed the centre line and hit a loaded fuel tanker truck

RCMP to review actions at Wet’suwet’en pipeline protest camps

Senior Mountie says he hopes protests will be peaceful following deal with hereditary chiefs

‘Tripod’ delays access to Unist’ot’en camp

Social media rumours of cultural significance quashed, meaning police “exclusion zones” should end.

Hereditary chiefs negotiate injunction agreement

Wet’suwet’en hereditary chiefs abide by interim injunction, but gate stays up. Still opposed.

UPDATE: B.C. legislature managers accused of excessive travel, personal expense claims

Clerk Craig James, security chief Gary Lenz call allegations ‘completely false’

B.C. man fined $10,000 after leaving moose to suffer before death

Surrey man was convicted last week on three Wildlife Act charges

‘Blue Monday’ isn’t real, but depression can be

CMHA encourages people to prioritize their mental health

Parole granted for drunk driver who killed B.C. RCMP officer

Kenneth Jacob Fenton will be able to attend alcohol abuse treatment, nearly three years after crash that killed Const. Sarah Beckett

Anti-pipeline group wants NEB to consider impact of emissions, climate change

Stand.earth filed NEB motion asking to apply same standard to the project as it did with Energy East pipeline

B.C. man charged in 2014 snake venom death of toddler

Henry Thomas was taking care of the North Vancouver girl the day before she died

B.C.’s largest public-sector union wants inquiry into money laundering, drugs

Union officials say Premier John Horgan and Attorney General David Eby have not ruled out the possibility of a public inquiry

Teen in confrontation with Native American: I didn’t provoke

Nick Sandmann of Covington Catholic High School said he was trying to defuse the situation

Cariboo man pleads guilty to second degree murder in death of former girlfriend

Michael Martel admits to violent attack on Vesna Dumpstrey-Soos in 100 Mile House

Most Read