Does B.C. own the coast? New attack on pipeline being planned
Horgan may have argument for control thanks to a 1984 Supreme Court ruling
Shortly after the federal budget dropped Tuesday, Prime Minister Justin Trudeau and Premier Rachel Notley spent a half-hour on the phone.
They didn’t talk about the budget.
“It was all about B.C. and the Kinder Morgan pipeline,” says Cheryl Oates, Notley’s communications boss.
“The premier suggested some measures Alberta is considering. The prime minister listened. In the next few days, our officials will be going to Ottawa to talk about how we might proceed on this together.”
It’s unusual, to say the least, for a prime minister to spend part of his budget day talking to one premier about a problem with another premier, B.C.’s John Horgan.
The budget didn’t mention B.C.’s resistance to the Kinder Morgan project. But it did offer a solid rationale for the pipeline, citing the huge financial loss to the country from lack of access to tidewater. It also assumes the project will be operating by 2020.
The Liberals didn’t pump this up as a big national priority. Top billing went to pay equity, parental leave, pharmacare and other social measures.
But Trudeau’s talk with Notley showed B.C.’s obstructionism is his most pressing regional problem, still near the boiling point despite the end of Notley’s wine boycott.
On Wednesday, Horgan is expected to release yet another storm of proposals, mainly about imposing extreme rigour on pipeline companies for spill protection.
By April 30, pipeline operators must submit plans for spill management, then spend three years testing various spill simulations, Postmedia’s Vaughn Palmer says in a column outlining the measures.
“The provincial government has a responsibility to ensure there is a regulatory framework in place that protects its coastal resources,” the plan says.
Most of us thought that was a job for Ottawa, which is spending $1.5 billion on marine safety as part of the Kinder Morgan approval.
The way Horgan acts often mystifies Albertans. You’d almost think his province owned the ocean as well as the land.
It turns out that B.C., uniquely in Canada, does own its adjacent seabeds — in the Strait of Georgia, Juan de Fuca, Johnstone and Queen Charlotte.
By law, they are as much a part of the province as the Fraser Valley or the summit of Mount Washington.
This was decided in a 1984 Supreme Court ruling called the Georgia Strait reference. The great irony today is Alberta sided with B.C. in that struggle against Ottawa.
These facts, well known in B.C., perhaps explain why Horgan makes comments such as: “I’m standing up for the coast, man. I’m going to do what I think is right for British Columbia.”
Nigel Bankes, chair of Natural Resources law at the University of Calgary, doesn’t feel the legal reality has much practical effect on the dispute over the Trans Mountain pipeline.
“The federal government still has the same powers over that water as it does over the land of British Columbia,” he says.
This includes authority to approve projects of national interest. The federal government also has clear responsibility for navigation and shipping.
But Horgan has obvious ambitions to stretch the constitution. Why shouldn’t he, when B.C. won such a long-shot case in 1984?
That decision was based on arcane legal documents around the 1866 amalgamation of the Colonies of Vancouver Island and British Columbia. The merged colonies joined Canada as the sixth province in 1871.
The Supreme Court’s conclusion, much simplified, is that B.C. and its neighbouring island embraced the linking seabeds when they united.
Today, it’s an obvious argument (at least for a smart B.C. lawyer) that if one owns the land covered by water, there should also be authority over use of that water.
Horgan is already claiming that once bitumen crosses the border into B.C. on land, it should be entirely within provincial control.
This is a laughable position to many constitutional lawyers. But the B.C. premier is ready to refer his argument to the provincial courts, and then to the Supreme Court.
It’s a short step from there to arguing that B.C. can also regulate what happens in water that covers provincial property.
One can only hope Bankes is right, and Ottawa still has the hammer.
But John Horgan seems to have other plans.
I’m standing up for the coast, man. I’m going to do what I think is right for British Columbia.