Slow down, pipeline appeal judge says

Requests to intervene not guaranteed

Kinder Morgan may have set a May 31 date for the Trans Mountain Pipeline, but the B.C. Court of Appeal will not be moving quickly to answer the province’s constitutional reference question.

Presiding at the first casemanagement conference, Justice David Frankel said government lawyers led by Vancouver’s Joseph Arvay were getting ahead of themselves.

The top court first must decide who will participate in the hearing, he explained, saying that despite its submissions, Victoria’s and Ottawa’s participation were not “a right” because the reference involves not an act but amendments to an existing law.

“There are some assumptions built into your material that I do not necessarily agree with,” said Frankel. “I may be wrong because I think it’s in your letter you refer to the Attorney-General of Canada participating as a ‘right’ — which I at the moment do not see . ... You know, actually it’s interesting, if you read the (Constitutional Question) Act, you don’t appear to have a right of audience either.”

Titters rolled through the gallery filled primarily with lawyers representing Alberta, the federal government,

YOU DON’T APPEAR TO HAVE THE RIGHT OF AUDIENCE.

as well as the company and other groups interested in the national energy fight.

B.C.’s NDP administration last month asked the court to review proposed amendments to the Environmental Management Act that apply to pipelines regulating heavy oils like diluted bitumen.

The fulcrum of the case is the division of powers and whether the long arm of provincial law is exceeding its constitutional reach.

Kinder Morgan vowed to abandon the mega-project if B.C. did not quell its opposition, but that threat was made irrelevant by commitments from Alberta and Ottawa to ensure completion of the pipeline that will improve access to global markets.

At the case conference earlier this week, the judge ordered that anyone interested in participating in the case should notify the court giving their reasons for why they should be heard and what they can contribute to the hearing.

He said not everyone may be given a chance to speak and said some may be restricted to written submissions. He emphasized Tuesday’s conference was a preliminary step: “It’s to get this rolling.”

The next case-management conference will occur sometime in June.