Jason MacLean is an assistant professor at the University of Saskatchewan, College of Law
Mere moments after the B.C. government announced its intention to develop additional measures to improve its "preparedness, response and recovery" relating to spills of diluted bitumen, including the oil that will flow through Kinder Morgan's controversial Trans Mountain pipeline expansion, the constitutional verdict was already in.
"The government of Alberta will not – we cannot – let this unconstitutional attack on jobs and working people stand," Alberta Premier Rachel Notley said.
"Look, we're in a federation," added Prime Minister Justin Trudeau in a subsequent radio interview. "We're going to get that pipeline built."
"To the extent that this is meant to imperil Trans Mountain," said Alan Ross, a regional managing partner with Borden Ladner Gervais LLP, whose clients include Kinder Morgan, "there really is a very clear federal jurisdiction with respect to matters such as pipelines or railways that cross provincial borders and are federally regulated."
The constitutional jurisdiction over pipelines is clear all right. Clear as bitumen.
In a 2016 decision known as Coastal First Nations concerning a similarly controversial project, the Northern Gateway pipeline, the B.C. Supreme Court concluded that while Northern Gateway was interprovincial, it was not national, and it posed risks that would have disproportionately impacted British Columbians. According to the Court, "to disallow any provincial regulation over the project because it engages a federal undertaking would significantly limit the Province's ability to protect social, cultural and economic interests in its lands and waters."
"It would also go against," the Court added, "the current trend in the jurisprudence favouring, where possible, co-operative federalism."
Those two words – where possible – are crucial.
The real constitutional question here is whether B.C.'s anticipated oil-spill regulations encroach on the core of the federal government's power to approve interprovincial pipelines such as Trans Mountain.
And the answer to that by-no-means-clear question will ultimately turn on what B.C.s regulations actually say and do.
In the meantime, here's what we know: B.C.'s anticipated regulations will build on existing pipeline and rail transport measures, which were approved last fall absent any constitutional controversy whatsoever. The new regulations will be designed to ensure immediate and geographically specific responses following an oil spill, whether from a pipeline or from the rail or truck transport of oil; maximize the application of regulations to marine spills so as to complement existing federal measures; restrict the increase of diluted bitumen transportation until the behaviour and effects of spilled bitumen can be better understood and managed; and allow for compensation for the loss of public and cultural use of land, resources and public amenities resulting from bitumen spills.
The development of these regulations is prudent. There is much we do not yet know about how diluted bitumen behaves in different environments and how long spilled oil remains an ecological threat. In order to fill these gaps in our scientific knowledge, B.C. will create an independent scientific advisory panel to inform future spill-response measures. These efforts complement, rather than contravene, the federal government's commitment to invest in world-leading marine safety, including research on cleaning up oil spills.
As a matter of constitutional law, so long as B.C.'s safety regulations are enacted in a bona-fide manner to protect British Columbia's environment and economy from bitumen spills, and not as an indirect way of usurping the federal government's approval of Trans Mountain, the courts should uphold them. So long as B.C.'s safety regulations are conditions of operation that apply to the transport of diluted bitumen across the board and do not amount to a prohibition of a federally approved project, the regulatory powers of the province and the federal government can co-operatively co-exist.
Of course, when it comes to co-operative federalism, what's good for the goose is good for the gander. In a recent case involving an open-pit gold and copper mine southwest of Williams Lake, B.C., a federal environmental assessment concluded that the adverse environmental effects of the project could not be justified. The project's proponent, Taseko Mines, challenged the federal government's decision on constitutional grounds, arguing that the federal environmental assessment violated the province's clear jurisdiction over what was an exclusively provincial undertaking.
The Federal Court disagreed, however, concluding that "a project of such magnitude as the one considered in the present case will likely have impacts in areas of both provincial and federal responsibility."
Environmental assessment in Canada, the Court added, is designed to "promote co-operation and co-ordinated action between federal and provincial governments."
After all, we're in a federation.