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B.C. files legal paperwork after Alberta proclaims Bill 12

Last Updated May 2, 2019 at 6:25 am PDT

Summary

B.C. has filed legal paperwork less than a day after Alberta's new cabinet proclaimed turn off the taps legislation

Alberta's new premier says he's playing the long game in the ongoing pipeline battle with B.C.

Jason Kenney says Bill 12 was not proclaimed to reduce energy shipments to B.C., says he won't immediately turn off taps

VICTORIA (NEWS 1130) – B.C.’s attorney general has confirmed the province has filed papers with the court regarding Alberta’s Preserving Canada’s Economic Prosperity Act; Bill 12.

The move by John Horgan’s government aims to prevent Alberta Premier Jason Kenney from choking the flow of oil to B.C.

Earlier Wednesday morning, Kenney had said he was playing the long game in the ongoing pipeline battle with B.C., after his newly-minted cabinet proclaimed the law on Tuesday.

Kenney had said he wouldn’t immediately turn off the taps — as he had promised during his campaign — adding he would like to work with the other players and is starting down the path of diplomacy first.

“When you’re in a game of poker, you don’t show the other folks around the table what your high card is,” Kenney told reporters on Wednesday. “You don’t play that high card on the first hand.”

The United Conservative Leader noted he and Premier Horgan had spoken on Tuesday night, and that they had agreed to meet to try to find common ground between the two provinces.

However, when that meeting does take place, Kenney said he plans to point out exactly what Alberta considers obstruction in expanding the Trans Mountain pipeline.

“The B.C. government is doing everything it can to block the expansion of the very pipeline that would get Alberta oil and gas to the gasoline-constrained Lower Mainland and beyond,” he said. “This hurts ordinary families in British Columbia, this hurts Alberta, and it’s my job as premier to defend Alberta. That’s exactly what we will do.”

According to Kenney, Bill 12 was not proclaimed to reduce energy shipments to B.C., but rather to give Alberta the power to protect it’s ability to get a return on its resources.

The UCP leader noted the Trans Mountain pipeline expansion was approved by the National Energy Board “after years of exhaustive delays,” all while “applying the world’s strongest environmental regulations.”

He said the project was also approved by the federal government, and came with legally binding conditions “designed to ensure… the highest environmental standards on earth.”

As such, Kenney believes one province — in this case, B.C. — blocking exports to the rest of the country undermines a principle of Canada’s confederation: “the economic union between our provinces.”

Bill 12 is intended to “ensure the interests of Albertans are optimized before authorizing the export of natural gas, crude oil or refined fuels,” Kenney said on Tuesday. The bill was introduced and passed by the previous NDP government, but never proclaimed into law.

Meantime, B.C. government lawyers are now ready to challenge the law in court. B.C. Attorney General David Eby said on Tuesday that “There is a provision in the constitution that you can’t restrict the flow of refined products between provinces.”

“This is not I believe a provocative action, but one to safeguard the interests of British Columbia in the long-term,” Horgan said during a press conference in Victoria Wednesday afternoon.

“At no time over the past two years have we disrupted or delayed the permitting process in any way beyond those delays that would be required to protect the interest of British Columbia,” Horgan added.

Out of the 1,182 permits required for the Trans Mountain Pipeline expansion, Horgan said the government has issued 309 so far, noting it will continue to approve permits as the applications come forward.

“What we are in court doing is asserting our right to regulate products that move within British Columbia not just by pipeline but by rail, by other mechanisms and I believe that’s in the interest of our marine environment, our natural environment, that British Columbia would have a say what comes in and what comes out,” he said.

Statement of Claim filed: 

Statement of Claim filed 1 May 2019

Alberta doesn’t really have a leg to stand on legally: expert

Joel Bakan, who specializes in Constitutional Law at the UBC’s Allard School of Law, said B.C.’s legal case against Alberta is strong.

The Canadian Constitution generally does not give provinces jurisdiction to regulate exports. While there are exceptions, Bakan noted that refined oil products are not among them.

Provinces are also not allowed to discriminate against other regions of the country, and while Bill 12 does not mention B.C. specifically, courts will consider many other factors to determine the intent of the legislation, including its timing and comments from politicians.

“I think Jason Kenney probably had political reasons for saying to the people of Alberta, ‘we’re going to turn off the taps, we’re going after British Columbia’ and all of that. But from a legal perspective, he’s on very thin ice,” Bakan said.

He added the B.C. government’s first move will be to seek an interim injunction to stop Alberta from making Bill 12 operational, which B.C. is likely to get.