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Boost for Trans Mountain: B.C. to fight court ruling that found proposed pipeline law is 'unconstitutional'

Last Updated May 24, 2019 at 10:33 pm PDT


British Columbia Court of Appeal says the province cannot restrict oil shipments through its borders

B.C. plans to appeal the court ruling

Five-judge Appeal Court panel agreed unanimously that the proposed B.C. legislation is not constitutional

VANCOUVER (NEWS 1130) – The B.C. government isn’t backing down in its fight to try and restrict oil shipments from Alberta and effectively stop the Trans Mountain pipeline expansion project.

Attorney General David Eby announced on Friday that the province plans to fight a Court of Appeal ruling that found B.C.’s proposed law, which aimed to give the province control over heavy oil flowing within its borders, as unconstitutional.

“While we are disappointed with the decision, our courts have an important role to play in upholding the rule of law.” he told reporters following the decision.

“That is why we referred this question to the courts in the first place. Our government always said this case would likely be heard before the Supreme Court. In fact, we asked the federal government to join us in a joint reference to the Supreme Court of Canada.”

When asked about the cost of dragging the legal battle and taking it to the Supreme Court, Eby says it’s worth it.

“It is a fraction, of a fraction of the cost of a catastrophic diluted bitumen spill in terms of the impacts on economy, on jobs and just cleaning up the mess. So we think it’s worth while in terms of clarifying our ability to protect British Columbians from this catastrophic outcome.”

Premier John Horgan also expressed his disappointment, but is ready to take the matter to a higher court.

RELATED: BC submits question to Court of Appeal to clarify its jurisdiction over oil transport

“Cause we were discussing where we go with environmental issues, issues that weren’t contemplated when our constitution was developed initially back at the terms of confederation and most recently in the 1980’s when the constitution was repatriated. These are areas of law that need to be defined. We said all along it was probably likely a Supreme Court decision,” Horgan told reporters while in Prince George for an announcement.

“I’m confident that we do have the jurisdiction. The court of appeal disagreed, there are other courts, higher courts.”

The provincial government had filed a constitutional reference question to the court that asked whether it had the authority to create a permitting regime for companies that wished to increase their flow of diluted bitumen.

However, in a unanimous decision by a five-judge panel, the Court of Appeal ruled that B.C. cannot do so.

In its reasons, the court pointed out interprovincial pipelines are by definition specifically within federal jurisdiction. The judges also write that this law threatened to usurped the role of the National Energy Board — the federal regulator.

“At the end of the day, the NEB is the body entrusted with regulating the flow of energy resources across Canada to export markets,” the ruling reads. “Although the principle of subsidiarity has understandable appeal, the TMX project is not only a ‘British Columbia project’. The project affects the country as a whole, and falls to be regulated taking into account the interests of the country as a whole.”

RELATED: BC submits question to Court of Appeal to clarify its jurisdiction over oil transport

Justice Mary Newbury wrote on behalf of the panel that the substance of the proposed law was to place conditions on and, if necessary, prohibit the movement of heavy oil through a federal undertaking.

Newbury also said the legislation is not just an environmental law of “general application,” but is targeted at one substance in one interprovincial pipeline: the Trans Mountain expansion project.

B.C. had argued this proposed permitting system would help it protect its environment. The decision is a win for those pushing for the Trans Mountain pipeline expansion.

Stop blocking progress

The BC Liberals are calling on the BC NDP to drop the legal fight over the Trans Mountain pipeline expansion, in light of the court’s ruling.

“Today’s unanimous decision by the B.C. Court of Appeal has sent a message loud and clear to John Horgan and the NDP: Stop blocking progress,” says leader Andrew Wilkinson.

“While British Columbians spend the summer paying the highest gas prices in North America, John Horgan and David Eby will keep spending tax dollars to file more lawsuits trying to block a federally-approved pipeline that will increase supply and create jobs. The NDP needs to finally start respecting our constitution and listening to the people rather than making up rules to please their activist friends and insiders.”

Former Alberta Premier Rachel Notley took to Twitter following the ruling, saying “When BC threatened to block our oil, we used the wine ban to force them to court. The result is this decision, creating investor certainty for AB.”

She adds “Turns out BC’s toolbox was more Fisher Price than DeWalt. This is a good day for people with toolboxes all across Canada.”

RELATED: BC challenges Alberta’s ban on wine over pipeline expansion dispute

New Alberta Premier Jason Kenney also tweeted about the decision, posting a video, expressing pleasure with the decision.

“So this is a huge victory for Alberta, for the rule of law and a significant defeat from the forces of obstruction that are trying to land lock our energy,” he says in the video. “So we’re continuing to see momentum both at the recent senate committee decisions on bill c-48, c-69, now this important court decision and so onward and upward.”

He’s calling on Prime Minister Justin Trudeau to “do the right thing” and build the Trans Mountain Pipeline expansion. 

Oil Spills don’t respect borders

BC Green Party leader Andrew Weaver is among the environmentalists disappointed with the court’s decision.

BC must have authority to protect its people, its environment, and its economy from projects like the Trans Mountain pipeline expansion,” he tweeted, adding the ruling takes Canada further down the path of climate change. 

West Coast Environmental Law Association said the court’s decision leaves British Columbians vulnerable to health, safety and environmental risks associated with increased transportation of heavy oil through the province.

“With this judgment, the BC Court of Appeal has turned back the clock on cooperative federalism, putting our health, safety and environment at risk,” said Jessica Clogg, Executive Director and Senior Counsel in a news release.

“Oil spills don’t respect borders, and neither does climate change. This decision is a loss for local communities and cooperative federalism and a win for centralized government.” said Eugene Kung, Staff Lawyer. “It is also a slap in the face to Indigenous governments whose jurisdiction has been ignored. It will now be up to the Supreme Court of Canada to resolve these issues.


-With files from The Canadian Press