Great Wine War suspended for now but not because Horgan or Notley blinked

BC Premier John Horgan, right, Environment Minister George Heyman.

“I think that it is fair to say that in a small way, today, BC blinked…” Premier Rachel Notley

No one blinked. But suspension of the Battle of the Wine between Rachel Notley of Alberta and John Horgan of British Columbia is good news for pipeline supporters. BC’s decision to ask the Federal Court of Appeal if it has the constitutional authority to restrict dilbit shipments via pipeline from Alberta will finally clarify who gets to regulate what in an inter-provincial pipeline.

First, some background.

Bitumen before processing.

On Jan. 30, Premier Horgan announced his NDP government would consult with British Columbians on five new regulations designed to further protect the West Coast from a dilbit spill in a marine environment.

The first four (response time, geographic distribution of resources, compensation for losses due to a spill, “maximizing” existing regulations) were uncontroversial,  but the fifth instantly raised hackles in Edmonton:

Restrictions on the increase of diluted bitumen (“dilbit”) transportation until the behaviour of spilled bitumen can be better understood and there is certainty regarding the ability to adequately mitigate spills.

“The potential for a diluted bitumen spill already poses significant risk to our inland and coastal environment and the thousands of existing tourism and marine harvesting jobs,” BC Environment Minister George Heyman said in a press release.

“British Columbians rightfully expect their government to defend B.C.’s coastline and our inland waterways, and the economic and environmental interests that are so important to the people in our province, and we are working hard to do just that.”

bc wines
Alberta Premier Rachel Notley. Source: CBC.

Premier Notley argued that BC simply didn’t have the constitutional authority to restrict the shipment of any petroleum product in an inter-provincial pipeline because that was federal jurisdiction (you can read some of my many columns on that issue here and here and here and here).

So, she banned BC wine from the Alberta market, worth $70 million to BC wineries. That ban has now been lifted.

The past month can be summed up like this: both provinces were in an uproar, every chance she got Notley jabbed at Horgan, who initially played it cool but then gave as good as he got. Both premiers made points with their own voters and none with those in the opposing province.

Then the National Energy Board ruled against the City of Burnaby – again – over permit approvals for Trans Mountain Expansion and BC announced it would ask the Federal Court of Appeal to rule on possible “federal over-reach” by the regulator.

Then on Thursday Horgan announced BC would also refer the question about potential provincial restrictions on dilbit shipped via pipeline to the same court.

“We believe it is our right to take appropriate measures to protect our environment, economy and our coast from the drastic consequence of a diluted bitumen spill,” said Horgan. “And we are prepared to confirm that right in the courts.”

The BC NDP government clearly feels that it has a strong legal argument – Energi News experts disagree – that will “reinforce BC’s constitutional rights to defend against the risks of a bitumen spill” and said it would take a few weeks to consult legal advisers and draft the application.

“Today’s decision by BC is an important step forwardBC is stepping back from the brink and abiding by the law, and this is a good thing,” a pleased Notley said during a Friday media conference.

“I’m confident that the courts will not give BC rights it does not possess under our constitution.”

And then a reporter asked her if Horgan blinked first.

Yes, Notley replied, “I think that it is fair to say that in a small way, today, BC blinked…what we’re seeing today is a somewhat nuanced presentation, perhaps, but it’s very clear that they are not moving ahead with Point 5.”

Really? That is an overly generous interpretation of Horgan’s announcement.

The BC premier certainly said he was not moving ahead with Point 5 immediately, at least until a court has ruled in their favour, but he also reserved the right to resurrect Point 5 if the decision goes his way.

That wasn’t a blink, it was a pause.

Notley can’t be blamed for putting the best construction possible on BC’s decision, especially since a recent Angus Reid poll showed 82 per cent of Albertans supported the wine ban.

Maybe she won a skirmish, but it remains to be seen who wins the Point 5 battle. Or the Burnaby permit challenge, for that matter.

Energi News experts are confident BC is going to lose on both counts, but they also point out that the decision depends upon the make up of the court, and Alberta should take nothing for granted.

Except, perhaps, for the inevitable sniping from United Conservative Party leader Jason Kenney, who quipped in a Tweet, “The BC NDP are playing chess, while the Alberta NDP play checkers.”

A good sound bite, but a wholly inaccurate view of the issue.

Asserting federal authority over inter-provincial is the Canadian government’s job. Or, more precisely, it is the National Energy Board’s job acting under the authority granted by the federal National Energy Board Act.

The NEB has been busy ruling against the City of Burnaby, as I’ve explained in many columns, and would almost certainly rule against Point 5 (the NEB functions as a superior court) if Horgan had tried to implement it.

Now the national energy regulator will be spared the trouble. A judicial decision favouring federal authority should settle the matter once and for all.

Unless the court blinks. In that case, Trans Mountain Expansion could be an even bigger public mess.

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