Vaughn Palmer: Supreme Court appeal looks like B.C.'s last chance to fight pipeline
Credit to Author: Hugh Dawson| Date: Wed, 04 Dec 2019 01:54:17 +0000
VICTORIA — The B.C. government’s legal fight against the Trans Mountain Pipeline expansion is — with one exception — all played out, Premier John Horgan told a national media audience Tuesday.
“We believe that the court cases, our participation in the litigation, has run its course, save and except our reference case,” said Horgan.
The reference case has B.C. asking the courts whether it has the authority to regulate increased interprovincial shipments of heavy oil and other hazardous substances via pipelines or other means.
Five judges of the B.C. Court of Appeal ruled unanimously against the Horgan government on constitutional grounds last spring.
But B.C. has appealed that decision to the Supreme Court of Canada, which will hear the case early in the new year.
“Those who believe that (the reference case) is just about Trans Mountain are missing the point,” Horgan explained to reporters. “We believe that B.C. and other provinces have the right to put in place regulations to protect their communities and their people and their land, and we’ll see what the Supreme Court has to say about that.”
The premier was responding to questions during a media conference in Ottawa following his appearance at a special meeting of the Assembly of First Nations.
As the first sitting premier to address the assembly, Horgan was being honoured for B.C. having become the first jurisdiction in the country to incorporate into legislation the principles of the U.N. Declaration on the Rights of Indigenous Peoples.
Horgan fielded questions on UNDRIP. But he also faced questions about the status of his vow to use “every tool in the tool box” to litigate against the Trans Mountain project.
“When we formed government, there were existing court actions. We entered into those proceedings. Most of them have run their course,” said the premier. “Now, there are Indigenous peoples who are still in court with Trans Mountain. We’re not participating in those cases.”
One such case is before the federal court of appeal, where B.C.’s Tsleil-Waututh First Nation and others are challenging the federal government’s approval of the pipeline expansion project.
“We’re not part of that litigation,” said Horgan. Earlier, the B.C. government had indicated that it was mulling the option of intervening.
But after concluding that the issues before the court were largely federal, involving Ottawa’s consultations with First Nations, the province decided not to get involved.
Still, it was ironic, given the setting of a national gathering of Indigenous leaders, that Horgan confirmed his government had chosen not to join B.C. First Nations in their continuing fight against the pipeline.
Which leaves the reference case as the last remaining legal arena where the province is mounting proactive litigation against the pipeline expansion.
The case, as Horgan sees it, is about “who has jurisdiction over regulating any commodity, any dangerous commodity, not just diluted bitumen but whatever would come from Alberta or from the other parts of Canada to our coast.
“Our ports are very vibrant,” continued Horgan, turning the question into a elementary teachable moment for the national media. “They are the gateway to Canada, the gateway to the Pacific economy. And we want to make sure that continues to be robust. But we also want to ensure that we have the ability to protect those things that are important.”
In rejecting the Horgan government’s legal pitch last spring, the B.C. Court of Appeal found that regulation of the interprovincial movement of heavy oil and other goods by pipeline or other means is the responsibility of the federal government, not the provinces.
Realistically, the New Democrats aren’t counting on a full reversal of that verdict at the high court. But they hope that a few of the justices will find at least partly in B.C.’s favour, thereby taking the sting off the 5-0 shutout at the court of appeal.
While the Horgan government fights to mitigate its loss on the reference case, it is also being drawn back into court to defend a win on Trans Mountain-related litigation.
The federal court ruled in B.C.’s favour earlier this year on Alberta’s legislative threat to cut off the flow of gasoline and other refined products to this province.
The so-called “turn off the taps” legislation was framed as a way to punish B.C. for the Horgan government’s continuing fight against the pipeline expansion.
If B.C. continues to resist movement of their heavy oil through this province to tidewater, Alberta would cut off our supply of gasoline and refined products, crippling the provincial economy.
But Justice Sebastien Grammond issued an injunction against Alberta’s use of the legislation pending the conclusion of B.C.’s full-blown constitutional challenge.
In rendering judgment, Grammond indicated that the B.C. case against the legislation was “strong” while the Alberta defence was weak to the point of non-existence.
In discounting Alberta’s threat to regulate the shipment of “refined fuels” to B.C. through the existing pipeline, Grammond marshalled an argument that others have raised against B.C.’s effort to regulate the shipment of heavy oil through an expanded pipeline.
“The Trans Mountain pipeline is a federal undertaking, and a province cannot regulate what it carries,” wrote the federal court judge in the turn-off-the taps case.
Not an argument B.C. would like to have thrown back in its face in the reference case, particularly since that would appear to be the last tool in the legal tool box so far as Horgan is concerned.