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British Columbia B.C. seeking right to limit passage of heavy oil into province, court hears

Steel pipes that were to be used in the oil pipeline construction of Kinder Morgan Canada's Trans Mountain Expansion Project shown at a stockpile site in Kamloops, B.C. on Aug. 30, 2018.

Dennis Owen/The Globe and Mail

The B.C. government acknowledges it cannot stop the Trans Mountain pipeline expansion, but wants the right to limit the passage of heavy oil into the province, a lawyer acting for the province said at the opening of a B.C. Court of Appeal hearing.

“This reference is designed to determine if [the province] can enact environment laws that can, to the extent possible, prevent oil spills and leaks and mitigate the harm that may occur," Joseph Arvay told the five-judge panel on Monday.

The NDP, which governs with support from the three-member BC Green caucus, is seeking judicial approval of draft regulations to British Columbia’s Environmental Management Act that would allow it to limit any increase of heavy oil being transported through the province, whether by pipeline, rail or highway.

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Mr. Arvay said that the province has no “axe to grind” against pipelines such as the expansion of the Trans Mountain pipeline, which carries heavy oil between Edmonton and Burnaby and which the federal government has purchased for $4.5-billion. He said the province’s regulatory interest is simply aimed at protecting the environment.

The magnitude of the long-awaited hearing set to spotlight the division of powers between the federal government and the provinces was clear from the presence of more than 30 lawyers in the courtroom, representing various interests in the case. Ten lawyers sat in the front row of the public gallery, which was reserved for additional counsel.

British Columbia’s NDP government, which vowed to stop the pipeline expansion while campaigning in the 2017 provincial election, has since decided that it cannot stop the federal government from expanding the pipeline, so it’s taking a regulatory approach.

Mr. Arvay conceded on Monday, during questioning from one of the judges, that the court process may identify issues with the use of regulations that the legislature should consider in crafting them.

Lawyers for the federal government plan to argue that British Columbia’s proposed regulations would frustrate its right to oversee the pipeline expansion that it has declared to be in the national interest.

Prime Minister Justin Trudeau and Alberta Premier Rachel Notley have previously said Ottawa, and not the provinces, have the authority to decide what goes in trans-boundary pipelines. B.C. disagrees.

Premier John Horgan said on Monday that he is optimistic about the court siding with his government.

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“I believe the province has the authority. The federal government disagrees. That’s why we have courts in this country. That’s why we live by the rule of law. I am confident our case will be successful, but we will have to see what the judgment is down the road,” Mr. Horgan said during a news conference in the Vancouver Island community of Crofton.

Last summer, the Federal Court of Appeal overturned approval of the project, ruling that the National Energy Board had not properly considered its impact on marine life, nor had Ottawa meaningfully consulted with Indigenous groups.

But last month, the board found the pipeline was still in the public interest despite the risk that an increase in tanker traffic could adversely affect southern resident killer whales, hurt related Indigenous culture and increase greenhouse gas emissions. It enacted 16 additional conditions for the project.

Outside the court, Kegan Pepper-Smith, a lawyer for the environmental group EcoJustice Canada, said he expected any outcome of the hearing will go on to the Supreme Court of Canada.

With a report from The Canadian Press

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