Liberals continue to hammer NDP over ‘tool box’ talk

Minister confirms legal advice on pipeline contradicted commitments

The New Democrats knew from the first day in office that their election threat to do everything to “stop” the Kinder Morgan expansion was both inappropriate and unlawful.

So said Environment Minister George Heyman this week, confirming to the legislature what Premier John Horgan confided last July in naming him to cabinet.

“He was very clear that as part of transition, he had been given the legal advice that stopping the project was beyond the jurisdiction of B.C.,” said Heyman during debate on his ministry budget Monday.

“To talk about it or frame our actions around doing that, would be inappropriate and unlawful. That is why we could not do that. He advised me to not do that.”

Adding to his account of that first meeting with the incoming premier, Heyman confirmed the legal advice explicitly contradicted NDP commitments:

“It became clear, through listening to legal advice, that we did not have the authority to stop a project that had been approved by the federal government within its jurisdiction … We couldn’t simply do what we initially, in Opposition, thought was an option for government.”

With that, the NDP platform commitment “to use every tool in our tool box to stop the project from going ahead” fell by the wayside. Also consigned to the memory hole was the passage in the power-sharing agreement with the Greens whereby the New Democrats promised to “immediately employ every tool available to stop the expansion of the Kinder Morgan pipeline.”

Henceforth Heyman was to be guided by the less threatening language of his mandate letter from the premier: “Employ every tool available to defend B.C.’s interests in the face of the expansion of the Kinder Morgan pipeline and the threat of a sevenfold increase in tanker traffic on our coast.”

The switch from the language of stopping to the language of defending had implications for what Heyman could and could not do.

As minister: “Protect the environment and ensure that our environmental protection laws are enforced.”

As lawmaker: “Ensure that laws and regulations and permit considerations are applied even-handedly and in an unbiased manner.”

He needed to be especially careful in fielding permit applications from the very project the New Democrats had vowed to stop: “To undertake activities which I’ve been advised are outside the scope of B.C.’s jurisdiction under the constitution means that to disregard that, despite wording in a campaign platform, would be biased and inappropriate and not the right action for somebody who is supposed to be overseeing an even-handed and fair process that is designed to defend and protect our environment.”

Heyman’s detailed exposition led B.C. Liberal Mike de Jong — who’d provoked the exchange with a series of pointed questions — to speculate that the New Democrats were mainly concerned about being sued by Kinder Morgan.

“It’s not really a question of legal liability,” insisted Heyman. “It’s a question of legal responsibility. That responsibility says that you may have legitimate goals, and if the particular means you thought you could use to address them aren’t constitutional or legal or within your jurisdiction, then the right thing to do is to look at what you are trying to do and do what is possible and legal for one to do.”

And if the government were to proceed with measures that are not legal and clearly biased, it surely would leave itself open to legal action. Attorney General David Eby confirmed that much last year, when he said the New Democrats could not artificially delay permits for the project lest they leave government open to costly lawsuits.

But Eby was not as candid as Heyman in confirming how legal advice to that effect was in government hands from day one, nor the extent to which it explicitly contradicted the party platform and the agreement with the Greens.

Horgan himself evoked the permitting thing this week in response to Kinder Morgan’s threat to walk away from the project by May 31 if the province doesn’t stop its obstructionist and delaying tactics.

“We have not been thwarting due process,” the premier told the house.

“We have been issuing permits as they’ve been requested. All we have done is said that we would assert our rights and our jurisdiction to protect British Columbia’s economy and its environment.”

With the government on notice not to do anything to provoke a lawsuit, Horgan has staked everything on asking the courts just how far the province can intrude into the admittedly superior federal jurisdiction over interprovincial pipelines in general and this Ottawa-approved project in particular.

But for all Horgan’s instructions to Heyman to watch what he says publicly about stopping the project, the B.C. Liberals turned up an example of Horgan himself doing just that in a year-end interview with Global TV: “We’re still committed to doing everything we can to stop the project.”

That had New Democrats wishing Heyman had been less explicit about the legal advice overturning the party platform and the agreement with the Greens.

As the day ended, there were signs that the message was getting through to Heyman. During debate on the ministry budget, the Liberals again tried to ask about the legal advice and the mandate letter.

In reply, an exasperated Heyman sounded less and less inclined to field more questions on that score. Too late. He’d already said more than enough to show up the unlawfulness of the NDP threat to stop the project.

It became clear…that we did not have the authority to stop a project that had been approved by the federal government within its jurisdiction..

GEORGE HEYMAN, Environment Minister