Skip to main content

British Columbia’s Court of Appeal is set to rule on whether the province has the power to police the flow of heavy oil through its territory, a crucial question in the pitched political battle over the future of the Trans Mountain pipeline expansion.

The provincial NDP government filed the reference case a year ago when the federal Liberal government refused to refer it directly to the Supreme Court of Canada, which is where experts agree the case is likely to proceed next after the B.C. Court of Appeal releases its reasons for judgment on Friday morning.

The five justices will be deciding on whether B.C. can create a permitting system for companies that wish to increase the amount of heavy oil they are transporting through the province.

Michael Byers, a University of British Columbia professor and the Canada Research Chair in Global Politics and International Law, said their ruling will likely be superseded by an eventual Supreme Court of Canada judgment in the next year or so, but Friday’s decision could be a factor in numerous Lower Mainland and Vancouver Island ridings during October’s federal election.

“If the court decides that the province has jurisdiction to regulate, then that will strengthen the hand of opponents of the pipeline, particularly the New Democratic Party and the Green Party and would weaken the position of the federal Liberals,” Prof. Byers said.

The expansion would triple the capacity of the line that runs from the Edmonton area to Metro Vancouver and increase tanker traffic in Burrard Inlet sevenfold. The federal cabinet is expected to make a decision as early as next month on whether to approve the project.

If the court rules the other way, Prime Minister Justin Trudeau’s government, which purchased the pipeline and related assets from Kinder Morgan for $4.5-billion, is unlikely to do much with the project before the next election, Prof. Byers said.

“The federal government will move slowly on the pipeline and construction because it will not want to provoke protests against the pipeline this summer and fall,” he said.

Will George, a protester with the Protect the Inlet group and a member of the Tsleil-Waututh Nation of North Vancouver, confronted Mr. Trudeau on Wednesday at a Liberal fundraiser in Vancouver, interrupting his speech to repeatedly call him a liar and a weak leader for supporting the pipeline expansion. After the incident, Mr. George said, in an interview over text messages, that a ruling in favour of B.C. Friday will make it “very difficult for the pipeline to go forward.”

B.C. has argued in the case that its new system would allow a provincial public servant to impose conditions on permits, which would help it protect its environment and ensure that companies agree to pay for the cleanup in the event of a spill. Lawyers for the province have maintained the goal of the legislation is not to block Trans Mountain and the court should not presume the law would be used inappropriately in the future.

Lawyers for the federal government have argued the new rules are clearly intended to impede additional oil shipments through B.C. because they only target heavy-oil transporters that want to increase capacity.

When B.C. filed the reference case last year, Alberta announced it would ban B.C. wines and accused Premier John Horgan of trying to break the rules of Confederation in newspaper ads. A lawyer for Alberta told the Court of Appeal that the permitting scheme is a “vague, amorphous” process that gives wide-ranging discretionary powers to a government official. Trans Mountain ULC has also argued the legislation is targeting the project and will “directly and significantly” affect it.

Kegan Pepper-Smith, a lawyer with non-profit Ecojustice, which delivered arguments in support of B.C.'s rules in the case, said the court should enshrine every level of government’s duty to enact legislation that protects the environment.

“There is a bigger picture here, the science is telling us two things: First, we’re causing a climate breakdown and, second, the world is facing an ecological crisis and both of these issues are at play in this case,” he said.

With reports from The Canadian Press