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The B.C. government’s legal team starts this week to refurbish its case – this time for the Supreme Court of Canada – to limit the flow of crude oil through the province. Meanwhile, officials at Trans Mountain are scraping the rust off their shovels in anticipation of the resumption of their pipeline expansion project.

The B.C. NDP campaigned in 2017 on a promise to “use every tool in [the] toolbox" to stop the Trans Mountain expansion. With the unanimous ruling against the province in the B.C. Court of Appeal last week, a legal petition to Canada’s highest court appears to be the last wrench in the kit of Premier John Horgan’s government.

Construction on the pipeline project was halted last August, the result of a legal challenge led by a coastal First Nation community, the Tsleil-Waututh. The Federal Court of Appeal quashed the federal cabinet order that approved a pipeline, partly on the basis that Ottawa failed to adequately consult with affected First Nations.

Ottawa, having purchased the Trans Mountain pipeline in order to get the expansion built, is set to decide by mid-June if it will once again approve the project. There is little suspense about the outcome of that process, although Indigenous consultations are still under way.

Barring any surprises from Prime Minister Justin Trudeau’s cabinet, which has already declared the project to be in the national interest, Trans Mountain will be ready to restart construction quickly – remobilizing the contractors who were put on hold last summer – so that shovels will be in the ground before the fall federal election.

Supporters of the pipeline took heart from British Columbia’s resounding defeat in the provincial Court of Appeal, which concluded in a 5-0 decision that the province’s proposal to limit the amount of heavy oil flowing west to the ocean would be unconstitutional, as only Ottawa has such oversight of the federally owned and regulated Trans Mountain pipeline.

But the Supreme Court has reversed unanimous B.C. Court of Appeal decisions before. And the silence of the lower court on Indigenous rights may offer a path to a different outcome.

B.C. is seeking judicial approval of draft regulations allowing it to limit any increase of heavy oil being transported through the province, whether by pipeline, rail or highway. Under this plan, a provincial bureaucrat would be in charge of imposing conditions on a hazardous substance permit and could cancel or suspend the permit if the company did not comply.

Having failed to persuade the bench in the Court of Appeal, the province hopes the Supreme Court will agree that these proposed regulations can fit within the emerging model of “co-operative federalism," rather than a rigid divide between federal and provincial powers.

The Haida, one of four First Nations groups who argued in support of the B.C. government’s stand in the provincial Court of Appeal process, say that model of co-operative federalism includes Indigenous powers.

The Haida argued in court that Indigenous peoples hold an inherent right to participate in decision-making in matters that would affect their rights, and that the Trans Mountain pipeline expansion project unjustifiably infringes on Indigenous title and rights.

But the decision of the B.C. Court of Appeal, written by Justice Mary Newbury, dealt strictly with the balance of power between Victoria and Ottawa.

“The protection of the environment is one of the driving challenges of our time. No part of the world is now untouched by the need for such protection; no government may ignore it,” Justice Newbury wrote. But, she concluded, “the project affects the country as a whole” and must be regulated "taking into account the interests of the country as a whole.”

Jason Alsop, president of the Haida Nation, called the ruling “a missed opportunity” for the provincial courts to recognize Indigenous jurisdiction. He is hopeful the Supreme Court will be prepared to hear those arguments.

Aboriginal rights and title cases have fared better at the Supreme Court than in the lower, provincial courts. And to date, the legal fight for the rights of Indigenous peoples has done more to slow down the pipeline project than anything the B.C. government has tossed into the works. Mr. Horgan’s government will be hoping to see its Indigenous allies behind it when its lawyers arrive on the steps of the Supreme Court.

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