Lawyers representing 20 groups will intervene in British Columbia’s reference case to test the constitutional limits of the province’s authority to restrict the flow of oil crossing its borders – a high-stakes play for control in the battle over the Trans Mountain pipeline expansion project.
The B.C. Court of Appeal on Monday approved a long list of groups entitled to be heard, including coastal First Nations, energy companies, environmentalists and construction unions. It turned down just a few applications, including that of the Canadian Taxpayers Federation.
In April, B.C.’s NDP government asked the highest court in the province whether it has the authority to regulate heavy oil transport by issuing permits. The province submitted draft regulations and asked the court to provide an opinion on whether the law would be within B.C.’s jurisdiction; whether it can apply to substances transported from another province; and, if any existing federal law renders the regulations invalid.
If the court grants permission, the province would enact legislation to require the owner of the Trans Mountain pipeline – or any other large shipper of heavy oil – to meet provincial requirements before they could increase the volume of existing shipments. Permits would be based on the findings of a scientific panel that would examine how to clean up heavy oil spills in marine environments.
The courts have directed B.C. and Ottawa to represent the two sides in the case, and each side must ensure that their respective supporters are co-ordinated in gathering evidence for submissions on the constitutional questions.
“The process is in the hands of the B.C. Court of Appeal and the province will work with the court to ensure that all perspectives are heard and that the issue is addressed in a timely way,” B.C. Attorney-General David Eby said in a statement on Monday.
Ottawa will argue that B.C.’s draft regulations are unconstitutional because pipelines that cross provincial boundaries are federal jurisdiction. The governments of Alberta and Saskatchewan, and energy companies, will support that side.
B.C. can count on backing from some of the First Nations that have been granted intervenor status, such as the Heiltsuk Nation, and the municipalities of Burnaby and Vancouver.
However, the court has said that “similarly situated parties will be required to make a joint submission” in a letter signed by three Court of Appeal justices who will hear the case. No date for the hearings has been set.
In a statement on Monday, Alberta Premier Rachel Notley expressed optimism that B.C. will lose the case. “Our government stood up to B.C.’s obstruction from the beginning and will continue to,” she said. “We’re pleased that Alberta has been approved to stand up for our energy sector at the B.C. Court of Appeal. We’ve won 16 out of 16 court cases in favour of the Trans Mountain pipeline, and we’ll continue fighting for jobs and to get top dollar for our resources, on behalf of all Canadians.”
The B.C. government’s opposition to the expansion of the Trans Mountain pipeline, which carries Alberta oil from Edmonton to a marine terminal in Burnaby, led Kinder Morgan to threaten to cancel the project. In May, the federal government announced a deal with the Texas-based oil company to buy the Trans Mountain assets for $4.5-billion, but that figure doesn’t include the construction and labour costs to complete the expansion.
Quebec, which has expressed concern about the federal government overriding the will of the B.C. government, has not sought status. However, the outcome is likely to be appealed to the Supreme Court of Canada, and Quebec and some of the other provinces could intervene at that stage.