Vaughn Palmer: It would be ironic if B.C.’s attempt to regulate bitumen flow was to fail on arguments that went against Alta. turn-off-the-taps case
Credit to Author: Stephen Snelgrove| Date: Wed, 25 Sep 2019 01:40:41 +0000
VICTORIA — The B.C. NDP government scored an impressive victory Tuesday when the Federal Court granted an injunction against Alberta’s turn off-the-taps legislation.
The win was preliminary. Alberta can’t use the legislation to cut off shipments of oil and refined fuels to B.C. until the conclusion of a full-blown constitutional challenge.
But in rendering judgment, Justice Sebastien Grammond indicated that the B.C. case against the legislation was “strong” while the Alberta defence was weak to the point of non-existence. The neighbouring province was accused of engaging in diversionary arguments and legal fictions to avoid the main point of the challenge.
B.C. argues that under the Constitution Alberta has no power to cut off shipments of crude oil and refined fuels as punishment for opposition to the expansion of the Trans Mountain pipeline.
“Alberta has chosen not to answer B.C.’s main point,” wrote Grammond. “Instead, it makes a number of arguments designed to divert the attention from the main issue.”
The first of those diversionary arguments: “That some parts of the Act may be valid — but Alberta does not say which ones and in what respects.”
Two: “That the Alberta energy minister (Sonia Savage) might exercise her powers under the Act in a manner that complies with the Constitution — but it does not give any examples.”
Three: “That the Act pursues the goal of maximizing the value of Alberta’s natural resources — but it never explains how this goal would be achieved, other than through an oil embargo against B.C.”
Four: “That we do not know whether the Act will ever be implemented — but Alberta is unwilling to give any assurance to that effect.”
The judge characterized these arguments as a “web of presumptions,” then swatted them aside: “Presumptions are what they are — legal fictions. Constitutional law is concerned with the substance and not the form — the reality and not the legal fiction.”
The summing up: “Perhaps Alberta has an argument to sustain the Constitutional validity of such a measure. Perhaps it will reveal that argument at trial. But it has not revealed it to me. Alberta’s failure to present any argument to buttress the validity of the Act necessarily leads me to the conclusion that B.C. has a strong case.”
Alberta also tried arguing that the legislation wasn’t necessarily targeted at B.C. because it hasn’t yet been used and might not ever be.
“The reality is that the Act was adopted to empower the Alberta government to impose an oil embargo on B.C.,” wrote the judge.
He quoted Alberta MLAs to that effect, including Premier Jason Kenney in an opinion piece published in The Vancouver Sun after he proclaimed the legislation into law.
Kenny outsmarted himself by proclaiming legislation, according to ex-premier Rachel Notley, whose NDP government enacted the bill but kept it in limbo.
“We told the premier not to proclaim this legislation because it would be like blowing up the missile while it’s still on the launch pad,” she said. “This injunction has rendered the legislation powerless. Any further threats from the premier to turn off the taps are empty.”
The B.C. government characterized the Alberta legislation as a “loaded gun” aimed at this province. Thanks to Notley, we can now say it was a missile, aimed by one NDP government at the only other one in the country. Whether gun, missile or a device to turn off the taps, the legislation could have been used to do serious damage against this province.
“The evidence clearly shows that B.C. depends on Alberta for a very large portion of its gasoline and diesel,” wrote the judge. “It is obvious that an embargo on exports to B.C. will cause a considerable increase in the price of gasoline and diesel in that province.”
Moreover he cautioned that if Alberta were to turn off the taps before a court had ruled on the constitutionality of the legislation, B.C. would be in no position to recover damages.
“Given the present state of the law, it is highly unlikely that they could be compensated in damage,” he wrote. “The Supreme Court of Canada has held that damages cannot normally be awarded for acts done pursuant to legislation that is later declared unconstitutional.”
Hence the decision to grant the injunction until “a final judgment is rendered in this action, including any appeals.”
So a big win for the New Democrats in one of several rounds of litigation related to the Trans Mountain pipeline expansion. But in that regard, the Federal Court made passing mention to the so-called reference case. That’s the one where B.C. seeks court authority to regulate any increase in the flow of heavy oil from Alberta through the TMX.
Grammond dismissed Alberta’s threat to selectively regulate the shipment of “refined fuels” to this province through the existing pipeline.
“The Trans Mountain pipeline is a federal undertaking and a province cannot regulate what it carries,” he wrote.
Then as legal authority, he cited the recent decision by the B.C. Court of Appeal, which ruled 5-0 against B.C. having jurisdiction over the contents of the pipeline. The province is appealing that decision to the Supreme Court of Canada in January, hoping for a less one-sided outcome.
But it would be ironic if B.C.’s attempt to regulate the flow of bitumen was to fail on one of the arguments that went against Alberta in the turn-off-the-taps case.