BC Court of Appeals rules against BC’s claim it can restrict pipeline shipments of dilbit

The BC government does not have the authority to restrict the shipment of diluted bitumen (dilbit) in pipelines that cross the province, according to a decision released Friday morning by the BC Court of Appeals. Attorney General David Eby says the decision will be appealed to the Supreme Court of Canada.

The unanimous decision was written by Madam Justice Mary Newbury, who rejected BC’s argument that the provincial and federal government could share overlapping jurisdiction.

“[I]t is simply not practical — or appropriate in terms of constitutional law — for different laws and regulations to apply to an interprovincial pipeline (or railway or communications infrastructure) every time it crosses a border,” she wrote, “there is no authority for the ‘hiving off’ of damage cleanup and remediation from the prevention of mishaps in the operation and management of an interprovincial work. To the contrary, all of these aspects are part of an integrated whole.”

Attorney General David Eby noted that BC had originally asked Ottawa to join in a “reference question” to the Supreme Court on the proposed regulation, announced in late January of 2018, to limit dilbit shipping until a provincial panel of scientists could further study the potential effects of a large dilbit spill, both onshore and in coastal waters.

“We continue to believe that we have the authority and the responsibility to defend our environment and economy, so we will exercise our right to appeal to the Supreme Court of Canada,” Eby said. “While we are disappointed with the decision, our courts have an important role to play in upholding the rule of law. That is why we referred this question to the courts in the first place.”

The BC NDP led by Premier John Horgan campaigned against the Trans Mountain Expansion (TMX)  pipeline and promised, as part of an agreement with Andrew Weaver’s four-member Green Party caucus, to use “every tool in the toolbox” to stop the toolbox. Since forming government, however, Horgan has tried to shift the focus away from obstructing TMX to his government’s commitment to “stand up for British Columbia’s environment, economy and coast.”

Justice Newbury was having none of it. The consequence of the regulation would be to “place conditions on, and if necessary,  prohibit, the carriage of heavy oil thorough (sic) an interprovincial undertaking,” she wrote.

Alberta NDP leader Rachel Notley, who was premier until a month ago, made fun of Horgan’s agreement with the Green Party. “John Horgan said he was going to use all the tools in the toolbox, and it turned out that his toolbox was Fisher Price, not Dewalt,” she told reporters. [T]his is good news for people who use real toolboxes all across the country.”

Premier Jason Kenney used Horgan and West Coast environmental groups as a political punching bag during the recent Alberta election campaign and he didn’t let up in his comments on the court’s ruling.

“B.C. Premier John Horgan has said many times that this reference and the other legal challenges to the pipeline are ‘about the rule of law,'” he said in a statement. “We agree, and in light of the court’s decision, we hope that the B.C. government will respect the rule of law and end its campaign of obstruction.”

Will the Supreme Court decide to hear BC’s appeal? The Federal Court of Appeal and the Supreme Court declined the City of Burnaby’s request, supported by the Province, to appeal decisions by the National Energy Board, which is a superior court. Energy law professor James Coleman thinks there are arguments for and against the Supreme Court agreeing to hear BC’s case.

“It really depends on what hey consider important. Certainly in terms of public attention, very little is more important than this one,” the faculty member of the Dedman School of Law said in an interview. “Presumably this leads Alberta to back down a little bit from its turn off the taps legislation, maybe tamps down this interprovincial warfare that’s created so many problems. But certainly in terms of public interest, it looks like the kind of case that the Supreme Court might be interested in.”