VANCOUVER – The British Columbia Court of Appeal ruled Friday that the province did not have the authority to restrict shipments of diluted bitumen through its borders. Here are five takeaways from the decision and its impacts:
1. Provinces cannot bring in legislation that interferes with the federal government’s exclusive jurisdiction over interprovincial pipelines.
While the B.C. government did not dispute that the federal government was responsible for cross-boundary infrastructure projects, it argued that it should also be allowed to bring in legislation to protect its lands and waters from the environmental risks. The court disagreed, ruling the proposed legislation interfered with federal government’s powers and that the National Energy Board is the body entrusted with regulating the flow of resources across Canada.
2. The court found B.C.’s legislation was aimed directly at the Trans Mountain pipeline expansion.
B.C. argued that its proposed legislative amendments were meant to protect its environment, while the federal government and Alberta argued the goal was to block or delay the Trans Mountain project. Justice Mary Newbury wrote on behalf of a five-judge panel that the proposed amendments were targeted at one substance, heavy oil, in one interprovincial project: the Trans Mountain expansion.
3. B.C. still wants to take its chances before the Supreme Court of Canada.
Although the panel unanimously agreed that the proposed legislation was unconstitutional, B.C. still plans to appeal to the highest court. B.C. Attorney General David Eby said his government originally wanted to take the case straight to the Supreme Court, but the federal government declined to co-operate and so B.C. had to first file it in the provincial Appeal Court. He said the Supreme Court of Canada has overturned unanimous B.C. Appeal Court decisions in the past.
4. Alberta Premier Jason Kenney and former premier, Rachel Notley, are celebrating the decision as a win for the province.
Kenney said he hopes the B.C. government will respect the rule of law and end its “campaign of obstruction,” adding that the project would be a “win-win” for both B.C. and Alberta in creating jobs and increasing the flow of natural resources. Notley, now leader of the NDP Opposition, said she used a ban on B.C. wines last year to “force” the province to take the reference case to court. “Turns out B.C.’s toolbox was more Fisher Price than DeWalt,” she said, referring to B.C. Premier John Horgan’s statement that the government would use every tool in the toolbox to protect the coast from a potential spill.
5. It’s unclear how many tools are left in B.C.’s toolbox to fight the project.
Eby did not directly answer a question about what else his government would do to oppose the pipeline, as he maintained B.C.’s legislation was about protecting its environment and that the Supreme Court of Canada would have the final say. But Peter McCartney, a climate campaigner with the Wilderness Committee, said there was plenty B.C. could do to halt or delay the project, including adding conditions to its provincial environmental certificate or ordering a public health and safety review of the project.
