Bombshell in the BC Legislature: Horgan govt knew all along stopping Kinder Morgan is illegal

“It became clear, through listening to legal advice, that we did not have the authority to stop a project that had been approved by the federal government…” – Heyman

Thanks to George Heyman, we now understand the BC government’s strategy toward the Trans Mountain Expansion project – who has jurisdiction and who does not, and what Kinder Morgan is up to with its May 31 deadline. To sum up: only Canada has the authority to stop the pipeline, the BC government is aggressively expanding the jurisdiction it does have – ostensibly to protect the environment but arguably to frustrate the proponent – and the Texas-based corporation has applied the political thumbscrews to Prime Minister Justin Trudeau.

The BC environment minister was answering questions from Liberal MLAs Monday during committee review of budget estimates for his department.

The Liberals hammered away, asking why Premier John Horgan had said only a few hours before in Question Period that his NDP government’s actions are intended to stop the project, while Heyman kept insisting the goal was to “protect the coast.”

The distinction is important and often steamrollered in public debate.

Pipeline critics have argued that the Province shares equal jurisdiction with the Canadian government, arguing that the principle of “co-operative federalism” currently in favour with senior courts means that when governments find themselves with overlapping jurisdiction, they must co-operate and avoid conflict for the greater good.

Pipeline proponents – including the federal government and the Alberta NDP government of Rachel Notley – argue that approving and regulating inter-provincial pipelines is the exclusive preserve of Canada, and any duties required from the Province or a municipality (e.g. the City of Burnaby) are secondary, minor administrative functions like permits for tree cutting or re-zoning applications.

Under the constitutional doctrine of “paramountcy,” junior governments cannot use their limited authority to “frustrate” the purpose of the national government.

Heyman admitted as much:

It was made clear to me, made clear to us, that issues of inter-jurisdictional immunity and paramountcy meant that we couldn’t simply do what we initially, in opposition, thought was an option for government. But we did then focus on what we could do to protect British Columbia against the risk of heavy-oil transport. 

Responding to a question from Liberal Mike de Jong, Heyman essentially conceded the proponents’ case:

…when we took office as government, when I took office as a minister and we reviewed commitments we’d made, it was incumbent upon us to understand what our legal responsibility is as government. It became clear, through listening to legal advice, that we did not have the authority to stop a project that had been approved by the federal government within its jurisdiction. We do have authority to apply conditions that are attached to the environmental assessment, a certificate, and to propose regulations to defend B.C.’s coast, but it is not appropriate to “stop the project” or to delay the project through anything other than even-handed consideration of permit applications. That is what we have tried to do at every step of the way.

This is the brilliance of the Horgan/Heyman strategy. Talking out of both sides of their mouths, they argue two contradictory points: that Victoria is opposing the project with “every tool in the toolbox” (as it committed to do in the agreement with the Green Party), but also that the NDP are simply protecting the coastline from a catastrophic spill by filling in gaps in federal regulations or preparedness without intruding on national authority.

If protecting the coast happens to take years of study, debate, and regulation drafting that eventually frustrates Kinder Morgan and causes it to cancel the pipeline, well, that’s hardly BC’s fault, is it?

Fault, and associated liability, is something Horgan is desperate to avoid.

Last fall while being interviewed on a Kamloops radio station, Attorney General David Eby admitted that the Province is worried about being sued by Kinder Morgan for billions of dollars, a case the company would almost certainly win.

Therefore, Horgan and Heyman walk a knife’s edge, proposing to restrict shipments of diluted bitumen through BC, then withdrawing the idea in favour of a reference case to the Federal Court of Appeal that has still not been filed, more than a month later.

But also ensuring that every Kinder Morgan application is fairly and expeditiously processed, as Heyman explained to de Jong:

Kinder Morgan president, Ian Anderson, reported to his shareholders on a conference call that there was no problem with the B.C. government’s handling of permit applications, that we were considering them. We are certainly applying due diligence, but we’re considering them appropriately. What we’re doing is what is within our jurisdiction and lawful for us to do, and that is do everything we can to defend our coast with the tools available to us…

Earlier in the exchange Heyman got to the nub of the governments approach:

First of all, the proposed regulations would apply to transport of heavy oil by pipeline or by rail. In addition, they are focused on measures necessary to prevent a spill, to respond appropriately and quickly to a spill and to recover in the tragic and unfortunate event that a spill takes place. There is no reference in them whatsoever to stopping the project, simply to making it safer from a community, economic and environmental perspective.

The highlighted text perfectly captures what Horgan and Heyman are up to.

And it worked, partly because it complemented the bureaucratic harassment inflicted on tree cutting permits and re-zoning applications by the City of Burnaby.

Opposition from the two governments combined with increasing protest activity at its Burnaby facility proved to be too much for Kinder Morgan Canada, which announced Sunday that it is suspending all “non-essential spending” on Trans Mountain Expansion and added that if the inter-government conflict isn’t resolved, the project cannot continue, meaning the company will swallow $1.1 billion already spent and shut down the bulldozers.

Now that we have a clearer picture of the Horgan government strategy, it’s also pretty clear what is required of Prime Minister Justin Trudeau.

For the project to proceed, he must give Kinder Morgan ironclad assurances that laws or regulations passed by BC will will not cause unreasonable delays and that the Canadian government will used the powers granted to the National Energy Board – which acts with the authority of the Crown – to expedite permitting.

As it stands now, the NEB is an arms length agency, one Trudeau cannot direct. His government can change that with an amendment to the NEB Act.

The other assurance he must provide is that protesters will be arrested if they break the law, as they have been doing with impunity of late.

The necessary legal authority to accomplish those two objectives is already available to Trudeau.

All it requires is a few tweaks to enable the federal government to play a more active role than it has to date.

Judging by the panic in Ottawa these days, the Liberals are short on nerve. That has to change.

Horgan, Burnaby Mayor Derek Corrigan, coastal First Nations, environmental groups, and local opponents in the lower mainland have all staked out their positions. None of them are likely to be bought off with the Canadian government’s big red chequebook. There are no new arguments that will change their minds.

The time has come for the Prime Minister to act.

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1 Comment

  1. Ah, but Section 35 of the Canadian Constitution CAN stop it dead in it’s tracks! Especially if the SCOC gets involved!

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