B.C. Premier John Horgan has encountered a problem in his bid to “use every tool in his tool box” to stop the proposed Trans Mountain pipeline expansion: he’s quickly running out of implements.
The province’s highest court on Friday rejected the contention by Mr. Horgan’s New Democratic Party government that it has the right to place restrictions on the undiluted bitumen from the oil sands that would be moving through the pipeline.
In a unanimous ruling, the five B.C. Court of Appeal justices couldn’t have been clearer: B.C.’s gambit to effectively halt the project in its tracks would be a clear infringement on federal authority.
In page after page, the justices made evident that while courts in Canada have recognized a growing governing partnership between Ottawa and the provinces – a phenomenon known as “co-operative federalism” – that partnership has its limits.
The ruling referenced an earlier decision by the Supreme Court of Canada warning that the more collaborative form of federalism we have witnessed in recent years did not override the separation of powers set out in the Constitution, which makes clear that Ottawa has jurisdiction over national infrastructure projects.
“The ‘dominant tide’ of flexible federalism, however strong its pull may be, cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state,” the Supreme Court ruled in Rogers Communications Inc. v. Châteauguay (City) in 2016.
Nor was that the only time the B.C. judges cited a Supreme Court judgment in validating their finding. This is important because B.C.’s Attorney-General David Eby says he will appeal to the Supreme Court – a request he was confident the country’s highest court would grant.
So this may not be the end of the matter just yet. There are additional lawyers to enrich, as they try and find ever-more-inventive reasons why a province should be able to usurp Ottawa’s power and that of the National Energy Board in an effort to shut down a project that is in the national interest.
But sadly, this is what governments often do, forge ahead on frivolous affairs for purely political purposes. Mr. Horgan has a broad swath of party supporters to appease, not to mention his governing partners in the Green party, and so he will press onward. When he loses again, as he is destined to, he will be able to say he tried his level best to prevent this pipeline expansion from going ahead.
Not surprisingly, Friday’s ruling provoked cheers in neighbouring Alberta. New Premier Jason Kenney expressed hope this might be the end of attempts to halt the project. While it’s likely not, it represents another win for Mr. Kenney in any event.
Recently, a committee of the Senate voted to kill Bill C-48, the government’s tanker ban, which would make any efforts to revive the Northern Gateway pipeline to the B.C. coast impossible. The Senate has also suggested a slew of changes to the government’s proposed Bill C-69, which sets out new regulations for big resource projects in Canada. If Ottawa agrees to those, it would signal another small victory for Alberta – which has been feeling pretty bruised and battered these days.
Of course, we’re still waiting for the federal government’s latest round of consultations with First Nations on Trans Mountain to wrap up – a response to the Federal Court of Appeal’s ruling last year that temporarily stopped the expansion from proceeding. The government is taking extra care in ensuring it doesn’t mess this up on the second go-around. It has former Supreme Court justice Frank Iacobucci carrying out the discussions with Indigenous groups on the matter.
While nothing should surprise us when it comes to this project, it seems inconceivable that the courts will thwart it once again – despite the stated intention of the B.C. government to try to do just that. For all intents and purposes this fight is over.
That will certainly not be a popular view among environmentalists and I understand that. Building more pipelines at a time there is ever-growing concern that the environmental health of our planet is edging closer to a crisis state doesn’t seem like the wisest idea. But it does seem inevitable that one more will get built. The addition of any others beyond that would likely encounter massive resistance.
While Mr. Kenney is taking plenty of bows these days for the small triumphs his province has recently seen – including this ruling – his predecessor Rachel Notley deserves as much or more recognition for them. She predicted Mr. Horgan’s reference to his province’s appeal court would fail, and she was right.
“Turns out BC’s toolbox was more Fisher Price than DeWalt,” the NDP leader tweeted. “This is a good day for tool boxes all across Canada.”