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Supreme Court dismisses B.C.'s Trans Mountain appeal

Last Updated Jan 16, 2020 at 11:06 pm PST


The Supreme Court of Canada shut down British Columbia's move to regulate what can flow through an expanded pipeline

The decision removes one of the remaining obstacles for the Trans Mountain pipeline expansion

The B.C. NDP government was elected in 2017 partly on a promise to oppose the expansion

OTTAWA (NEWS 1130) — The Supreme Court of Canada shut down British Columbia’s move to regulate what can flow through an expanded Trans Mountain pipeline from Alberta.

B.C. was appealing to the country’s highest court after the B.C. Court of Appeal ruled last May that the province couldn’t impose any restrictions on the contents on the Trans Mountain pipeline expansion.

On Thursday, the Supreme Court agreed.

“We are all of the view to dismiss the appeal for the unanimous reasons of the Court of Appeal for British Columbia,” Chief Justice Richard Wagner said.

The decision was issued from the bench after several hours of hearings in Ottawa.

It removes one of the remaining obstacles for the Trans Mountain pipeline expansion, which seeks to twin an existing pipeline running between Edmonton and Burnaby, B.C.

Canada’s Natural Resources Minister Seamus O’Regan said he welcomed the ruling.

“It is a core responsibility of the federal government to help get Canada’s resources to market and support good, middle-class jobs,” he said in a statement.

“We know this is only possible when we earn public trust and work to address environmental, Indigenous peoples’ and local concerns, which we are doing every step of the way on TMX.”

Federal lawyers argued B.C.’s attempt to require provincial permits for heavy oil to flow through pipelines was a clear imposition on the constitutional authority given to Ottawa over interprovincial pipelines.

Several of the judges on the Supreme Court agreed in their statements and questions throughout Thursday’s hearings, before issuing their quick dismissal.

B.C.’s Attorney General said the province will continue to protect the economy despite the ruling.

“Caring about our land and water and our economy and the impacts of potential spills of not just bitumen but also potentially other substances that the province would want to regulate is critically important, and we’ll certainly be doing what we can within our jurisdiction to protect our economy and our environment,” David Eby said.

When it comes to court costs, Eby said they didn’t have those numbers, but it doesn’t compare to the cost of an oil spill.

“But I could tell you in terms of the cost of the catastrophic oil spill, bitumen spill, or another toxic substance that’s brought into the province, this has been a fraction of a fraction of that kind of cost, and our efforts to protect our environment.”

The B.C. NDP government was elected in 2017 partly on a promise to oppose the expansion but the province had limited options because of the Constitution.

BC Liberal leader Andrew Wilkinson said it’s time for the NDP’s to get behind the pipeline in a statement.

“John Horgan and the NDP have continued their losing streak with the courts today after the Supreme Court of Canada rejected David Eby’s bogus legal argument,” he said. “John Horgan knew the federal government held clear jurisdiction over the pipeline but he spent millions of dollars just in political posturing. When will the NDP stop the political games and let British Columbians get to work on a project supported by a majority of people in our province?”

Wilkinson insists David Eby “comes clean” with the amount of money spent on the “anti-pipeline crusade” while arguing it has been a waste of taxpayer money.

Still, B.C. argued it has jurisdiction to protect the environment in its borders and since that province would bear the brunt of any damage from a spill if the pipeline ruptured, it should get a say in what can flow through it.

In April 2018, it filed a reference case with the B.C. Court of Appeal asking it to rule on whether the province could change its environment laws so that it could require permits for any heavy oil that was to flow through pipelines.

The B.C. Court of Appeal ruled in May 2019 that it could not, noting that would overstep the constitutional authority given to Ottawa. The court also noted while B.C. was trying to portray the legislation as a general change to its environment laws, it was clearly targeting the Trans Mountain expansion, since that was the only project to which the changes would apply.

The case was the catalyst that led to the federal government’s decision to buy the existing pipeline in May 2018 for $4.5 billion. Kinder Morgan Canada said the political risk that the project would never get built was too much to bear and was planning to halt the expansion.

The federal Liberals argue the pipeline is needed to get more Canadian oil to foreign markets beyond the United States and bought the existing pipeline with a view to completing the expansion once the legal and political challenges were out of the way.

It intends to sell it back to the private sector after the expansion is complete.

Although construction on the pipeline is underway, there remain other barriers to its completion, including a legal challenge by Indigenous communities affected by the construction. They argue they were not properly consulted before Ottawa gave the project a green light.

Alberta Premier Jason Kenney took immediately to Twitter to express gratitude for the court decision Thursday.

“Today, the Supreme Court of Canada dismissed B.C.’s attempt to regulate the heavy oil content in a pipeline,” he wrote. “We are very pleased with this outcome and look forward to construction continuing on the Trans Mountain Pipeline.”

The Canadian Taxpayers Federation said without the full pipeline capacity, Canada is missing out on close to $13 million in federal tax revenue between 2013 and 2023.

“We welcome this swift and clear decision by the Supreme Court of Canada, upholding federal jurisdiction over interprovincial infrastructure such as pipelines,” said Kris Sims, B.C. Director of the Canadian Taxpayers Federation. “Getting our natural resources to market is essential to the wellbeing of our country as those industries help to pay for the many taxpayer funded programs that we depend on in Canada.”