Vaughn Palmer: Judges throw a costly wrench into Horgan's pointless pipeline tool box
Credit to Author: Gord Kurenoff| Date: Sat, 18 Jan 2020 01:38:56 +0000
VICTORIA — Premier John Horgan and the New Democrats expressed disappointment this week when the Supreme Court of Canada threw out their last legal challenge to the Trans Mountain pipeline expansion.
They cannot have been surprised.
The New Democrats promised in their 2017 election platform to use “every tool in our tool box to stop the project from going ahead.”
They translated that vow into the power-sharing agreement with the Green party: “Immediately employ every tool available to the new government to stop the expansion of the pipeline.”
But Horgan knew from the day he took office that any provincial effort to stop the project would be illegal and unconstitutional.
NDP Environment Minister George Heyman says Horgan told him so in appointing him to cabinet in July 2017.
“He was very clear that as part of transition, he had been given the legal advice that stopping the project was beyond the jurisdiction of B.C.,” Heyman told the house in an extraordinary confessional during the NDP’s first year in office.
“To talk about it or frame our actions around doing that, would be inappropriate and unlawful. We did not have the authority to stop a project that had been approved by the federal government within its jurisdiction.”
Thus began the NDP’s shift away from the language of the election platform and the power-sharing agreement.
No longer would New Democrats talk openly about stopping the project. They would continue to use whatever tools they could wield, legal ones included, to frustrate the objective of the pipeline expansion.
Not always were they successful in disguising their intentions. Early in the term, the Horgan government was slapped down for playing politics in one of their interventions in the legal proceedings involving the pipeline.
“B.C. does not appear to understand the basic ground rule of the complex proceeding it is seeking to enter,” wrote Federal Court of Appeal Justice David Stratas in a public spanking delivered in August 2017.
“This court is a court of law that grapples with legal arguments; larger political issues that do not bear on the legal issues are irrelevant, distracting and thus, inadmissible.”
Heyman was the author of another embarrassment. With Horgan out of the province in early 2018, he announced B.C. would restrict the movement of increased shipments of Alberta’s heavy oil, pending scientific review.
The environmental activist turned environment minister then celebrated the threat by having dinner with a study group that was unabashedly dedicated to stopping the pipeline.
Alberta Premier Rachel Notley responded by ordering provincial liquor stores to boycott B.C. wine. Horgan had to walk back Heyman’s threat in exchange for Notley cancelling the boycott.
No longer would B.C. try to take direct action against heavy oil, Horgan announced. Instead, the province would refer the matter to the courts, seeking regulatory authority over increased shipments of heavy oil and thereby the power to frustrate the entire purpose of the pipeline expansion.
Thus began what was known as the reference case. From the outset, the New Democrats were warned the courts were likely to echo what Horgan told Heyman in appointing him to cabinet: the province did not have the authority to stop a project approved by the federal government within its constitutional jurisdiction.
But the New Democrats were determined to spare no legal expense to make it look like they were still doing what they promised in their election platform and the partnership agreement with the Greens.
They lost the first round in devastating fashion, with last spring’s 5-0 verdict from the B.C. Court of Appeal. Still they fought on, pushing the case to the Supreme Court of Canada.
Such are the rules of the reference cases that the court could not refuse to hear B.C. But the justices weren’t obliged to treat the province with much respect — and they didn’t.
Joe Arvay, the province’s high-powered and high-priced counsel, was subjected to a real mauling in Thursday’s hearing.
The roughest spot was when he argued that Horgan and his ministers were “not anti-pipelines. They’re not anti-Alberta, they’re not anti-oilsands, they’re not anti oil.”
But the high court only needed to refer to the NDP election platform to recall that the New Democrats were bent on stopping the expansion project by whatever means available.
“That’s what they said they were going to do. I believe them,” said Justice Malcolm Rowe.
Nearing the end of his remarks, Arvay all but pleaded with the justices to give him a break: “If I’m not going to win the appeal, then I don’t want to lose badly.”
They showed him — and by extension the Horgan government — no mercy. After consulting for less than an hour, the justices handed down a 9-0 verdict against B.C.’s attempted intrusion into federal jurisdiction.
For those keeping score, it was Judges 14, NDP 0.
Heyman admitted Friday the reference case had cost the province $1 million in outside legal bills alone. Attorney-General David Eby insisted the cost was a bargain compared to the cost of an oil spill, never mind that the case had done nothing to affect the risk of spills one way or another.
But Notley provided the most biting post-mortem on this publicly funded exercise in futility.
When B.C. lost the first round, she said Horgan’s tool box was less like something from the power tools section of the hardware store, more like a product of toymaker Fisher Price.
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