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B.C. Asks Supreme Court to Overturn Judges’ Decision Against Trans Mountain Regulation

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British Columbia is on its way to a Supreme Court of Canada appeal, after the provincial Court of Appeal ruled unanimously against its right to apply environmental regulations to heavy crude shipped through the controversial Trans Mountain pipeline expansion.

“We believe we have the right and authority constitutionally to regulate harmful substances through B.C., however they get here,” Attorney General David Eby said [1] Friday.

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“We’re disappointed with the decision,” he added. “Our government said from the outset that we would stand up for the B.C. environment, economy and coast.”

But “the Supreme Court of Canada has overturned unanimous decisions by the B.C. Court of Appeal in the past,” Eby noted, and “for reference questions like this, provinces have the right to appeal.” He said the dollar cost of the appeal would be a “fraction of a fraction of the cost of a catastrophic diluted bitumen spill.”

In his arguments before the appeal court, provincial lawyer Joseph Arvay had pointed to the array of pipeline, fossil, and railway lawyers standing against him and suggested a common thread in all their arguments, CBC recalls [3]: “That even if the pipelines or railways they own or operate create a risk of even catastrophic environmental harm because of the substance they carry, the province is nevertheless powerless to enact laws to prevent that risk from materializing.” B.C.’s response: “We say that the province is not required to accept such a fate.”

But the panel of five provincial judges ruled the province’s proposed regulations would conflict with federal jurisdiction over interprovincial pipelines. “Even if it were not intended to ‘single out’ the TMX pipeline, it 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,” the judges concluded [4], in a 66-page ruling crafted by Justice Mary Newbury.

“At the end of the day, the NEB is the body entrusted with regulating the flow of energy resources across Canada to export markets,” they added. “The project affects the country as a whole, and falls to be regulated taking into account the interests of the country as a whole.”

“B.C. argued the proposed environmental regulations could co-exist with the federal responsibility to oversee railways and pipelines, by ensuring the local environmental risks were governed by the level of government closest to the citizens most affected,” CBC adds. “But Ottawa claimed the rules were just a ‘Trojan Horse’ designed to kill a project B.C.’s NDP government previously vowed to defeat. To reach a decision, the province’s Appeal Court had to determine the ‘pith and substance’ of the law, which includes the purpose and practical effects of the legislation.”

The judges ended up supporting Ottawa’s argument that the proposed regulations were intended to target Trans Mountain. “From this proposition, it is a short step to Canada’s argument that the immediate purpose and undeniable effect…is to provide a means by which the province may impede additional heavy oil originating in Alberta from being transported through British Columbia generally, and thus ‘frustrate’ the project in particular,” they stated.

B.C. Premier John Horgan, who has promised to use every tool in his province’s toolbox to protect coastal waters, said courts must factor in issues of environmental jurisdiction.

“There’s always been a tug and pull in our federation between the supremacy of federal jurisdiction versus that of provincial jurisdiction,” he said. And when comes to the environment, this is an untested area.”

“The issue at the heart of this case goes far beyond a single pipeline project,” added Ecojustice lawyer Kegan Pepper-Smith. “What was at stake is the B.C. government’s ability to step in and enact laws that will better protect communities and the environment when federal measures fall short.”

The Alberta and federal governments were both quick to celebrate the ruling.

“It’s official: Courts have unanimously ruled that B.C. has no authority to ban Alberta oil in a pipeline,” tweeted [5] Alberta Premier Jason Kenney. “@JustinTrudeau, it’s time for you to do the right thing. Stand up for Alberta and all of Canada and build #TMX, now.”

“Turns out BC’s toolbox was more Fisher Price than DeWalt,” agreed provincial opposition leader Rachel Notley. “This is a good day for people with toolboxes all across Canada.”

“It is a core responsibility of the federal government to help get Canada’s natural resources to market and support good, middle-class jobs, but we know that is only possible when we earn public trust by addressing environmental, Indigenous peoples’, and local concerns,” responded Vanessa Adams, press secretary to Natural Resources Minister Amarjeet Sohi.

The judges’ decision notwithstanding, Stand.earth noted that tens of thousands of Canadians are still ready to do “whatever it takes” to stop the project.

“Despite today’s ruling, the fight over the Trans Mountain Pipeline is far from over,” Climate and Energy Campaigner Sven Biggs said [6] in a release. “People care deeply about protecting the B.C. coast, and if Prime Minister Justin Trudeau tries to restart construction on the pipeline, another wave of protests is guaranteed to greet him every time he comes across the Rocky Mountains to B.C.”

Days before the ruling, Tsleil-Waututh Nation leader Will George was giving Prime Minister Justin Trudeau a direct taste of that promise, confronting him during a Liberal Party fundraiser in Vancouver. “You’re a liar and you’re a weak leader,” he said [7]. “Climate leaders don’t build pipelines. We say no,” and “no means no.”

Trudeau thanked George for his intervention, cited his government’s work on ocean protection, carbon pricing, and Indigenous reconciliation, and pointed to “Indigenous voices” supporting the pipeline, CBC reports.

“I know you don’t mean to delegitimize their voices as well,” the PM said. “There is going to be a broad range of perspectives, and our approach as a government, our approach as a country has always been to listen to diverse views, to understand where they’re coming from, what their concerns are, and try to respond as best we can to them.”

The pipeline protest successfully overshadowed Trudeau’s announcement of a C$15.7-billion plan to build 18 new Canadian Coast Guard ships, 16 of them in Vancouver.

“It’s an impressive injection of cash ahead of an election,” CTV News reports [8]. But the TMX protests overshadowed the message, with “skirmishes between police and protesters as well as an arrest essentially hijacking the ‘good news’ announcement.”

“It’s become a climactic battle over climate,” said Simon Fraser University political scientist Stewart Prest. “Within Vancouver proper, there is a real groundswell of opposition that’s going to be vocal, and it’s going to make it perhaps more difficult to hold on to Liberal gains.”