What are B.C.’s options?

Ottawa holds some trump cards in Alberta-B.C. tiff

O T TAWA • An extraordinary provincial trade war is kicking off in Western Canada, as B.C. threatens to block Kinder Morgan’s Trans Mountain pipeline expansion through the use of environmental regulations. Alberta has already responded by ditching talks about importing B. C. electricity and cutting off B.C. wine imports.

But the fight really boils down to the B. C. government versus the federal government, as interprovincial pipelines are the jurisdiction of the National Energy Board. The energy board has already approved the Trans Mountain expansion.

Prime Minister Justin Trudeau has said the pipeline expansion from Edmonton to Burnaby will be built — and repeated that at a protestfilled town hall in Nanaimo, B.C., on Friday. But Alberta Premier Rachel Notley is demanding Trudeau do more.

What legal steps could Trudeau take to ensure the pipeline goes ahead? He does have some heavy constitutional weapons to deploy, but there are other events that are more likely to happen first. If B.C. does bring in a regulation to restrict the flow of diluted bitumen while studies are done on spill mitigation (for now, the province only says it intends to consult on such a regulation), there is little doubt it would ultimately be deemed unconstitutional.

“A province cannot impair a federally regulated undertaking,” said Robin Junger, the former head of B.C.’s environmental assessment of- fice and a former B.C. deputy minister of energy. “Can they put certain conditions on it? Yes. But if the effect is to stop it, it won’t work.”

In the meantime, Kinder Morgan could simply proceed and dare B. C. to take them to court, Junger said. But it’s more likely the company would seek a declaration from the energy board that the provincial regulations violate federal jurisdiction and are thus inoperative.

The company already did this once, when Burnaby attempted to use municipal bylaws to prevent access to city land for preparatory work.

“The company went to the National Energy Board and said ... the statute gives you the power to answer constitutional questions,” Junger said. “The NEB gave them that ruling.”

Ian Blue, a lawyer and expert in energy and constitutional law, said Kinder Morgan may indeed be able to manage this through an order from the energy board. But he said the federal government has options for intervening if B.C. moves forward with the regulations.

“It could instruct the Attorney General of Canada to commence action in B.C. Supreme Court for a declaration that the proposed regulations are unconstitutional,” he said. “That in itself would be a huge shot across Premier Horgan’s bow.”

And there is another federal power that could be called upon. “Once the regulations came into force, the Liberal government could just cut through all this delay and legal process, and under section 90 of the Constitution Act, disallow the regulations,” he said. “It has not been used since the 1940s, but it’s still a very definite power in the Constitution Act and could be used.”

But even if B.C. has little chance of prevailing legally in the long run, in the short term it could still cause so much delay and uncertainty that Kinder Morgan decides the project isn’t worth it.

“If B.C. wanted to get really bloody- minded about it, it could play constitutional whack- a- mole,” Blue said. “While the Attorney General of Canada and Kinder Morgan are in court arguing over one provision, they could then pass another provision, and the whole process would have to start all over again.”