Tankers left out of appeal-court questions

Free advice to anyone who is bracing to spend a few hours holed up studying the arcane constitutional argument that B.C. formally started this week: Don’t bother.

Relax. Go walk on the beach. Count the tankers going by, which are conspicuously absent from the NDP government’s arguments, and will sail on regardless.

The complicated legalities in the reference questions B.C. is submitting to the Court of Appeal aren’t the main point. The point of this exercise is to delay the pipeline past the point of viability.

Dragging these questions out through a long court process is much more important to the NDP government than actually getting the answers. (And in the herd of interveners who will show up, someone will likely appeal any decision to Supreme Court of Canada, which would eat still more time off the clock.)

Leaving tankers out of the picture (in fact, they are specifically exempted) is the first clue that the process is more important than the results. The whole thrust of the NDP’s stance against the pipeline was to provoke intense alarm about the catastrophic potential a “seven-fold increase in tanker traffic” would bring. (It would be a seven-fold increase in tankers serving that one pipeline, not the overall traffic in the Salish Sea. It’s just over one more tanker a day.)

But when it got to the put-up-or-shut-up stage this week, they left marine-tanker traffic out of the argument. The new permits the province is designing are only for the movement of heavy oil such as diluted bitumen via rail and pipeline. And they would be only for incremental additional volumes that might be moved.

That leaves an estimated 60,000 barrels of bitumen a day currently moving through B.C. via the existing pipeline off limits, along with about 12,000 barrels a day by rail. (Not to mention the huge U.S. volumes that move past B.C. waters daily.)

Those B.C. movements are locked in, and nothing the NDP has planned will touch them. Premier John Horgan said it was a question of fairness to shippers operating under the current regime. It’s also likely because it would destroy the provincial economy if they tried anything. If threatening to limit future increases prompts Alberta to consider turning off the taps, imagine what limiting current volumes would do.

After focusing incessantly on the dangers diluted bitumen poses to the coast, it leaves the NDP in an odd situation. They’re accepting the significant current volumes, but are ready to go to the wall to limit any increases.

Figuring out at which point the acceptable current flow turns into the menace of a looming “catastrophe” or “disaster” is anyone’s guess.

Another clue that it’s all a delaying tactic is the fact the reference questions were unveiled 36 days before the deadline set by pipeline builder Kinder Morgan. It has all the required approvals, but suspended most work and demanded a clear indication of B.C. attitude to the pipeline by May 31.

It just got one. NDP campaign promises to block the approved project can’t be repeated now they’re in office, because that would be illegal. Government lawyers warned them of that the day they were sworn in.

But guess what? They want to block the pipeline. The reference case makes it clear. Absurdly enough, B.C. wants to do exactly what Alberta plans to do — regulate how much oil goes in the westbound pipeline, and by regulate, it means drastically curtail.

You can’t recall years of NDP promises to kill the project and think they’re just interested in a new permitting regime. It all suggests Kinder Morgan will step back to some degree and the federal government and Alberta will step up as proponents.

B.C.’s move was made a week after Prime Minister Justin Trudeau said his government is actively working on new legislation to “assert and reinforce” federal jurisdiction in the sphere. If it were really all about who has authority, this would have been worked out earlier.

The difference is much more basic. Ottawa and Alberta want the pipeline to go ahead. The NDP campaigned to halt it and is obliged to follow through. The reference question is just a means to smother the project in legalities without being seen to actively kill it.