CAN B.C. REGULATE OIL FLOW?
Province to ask Appeal Court for ruling
VICTORIA B.C.’s attorney general says a reference question about the province’s powers to limit oil flow in the province will be sent to the B.C. Court of Appeal by the end of April.
David Eby said the question, which must be approved by cabinet before being made public, will bring finality to questions about the province’s jurisdiction to regulate and curtail oil through pipelines.
However, there’s no guarantee the case could be decided upon by the courts before a May 31 deadline set by Kinder Morgan to cancel its $7.4-billion Trans Mountain pipeline expansion project unless it receives assurances against delays and opposition.
“When we file in court, we also have to give notice to the federal government,” Eby told reporters Wednesday. “They will have an opportunity to file an appearance, as will other provinces, and we expect that they will be interested in doing that. Once that happens, the court will be setting dates for hearings.
It’s up to the court when the matter is heard and how long it takes for them to determine the question. I think everyone understands … about having an answer to this as soon as possible.”
Eby noted First Nations can also intervene in the case, as can the petroleum industry.
The B.C. government mused publicly in February about regulating the inflow of bitumen from pipelines, as part of its continued opposition to the Kinder Morgan project, which would twin an existing pipeline from Alberta’s oilsands to B.C.’s coast. Alberta and the federal government argued such a move would be unconstitutional.
Alberta Premier Rachel Notley hit B.C. with a ban on the import of B.C. wine in response. B.C. then announced it would proceed with a court reference question to see if had the power to make such regulations.
The situation remained at a stalemate until Kinder Morgan announced this month it would withdraw the pipeline project without more certainty against delays and opposition.
Alberta has since introduced retaliatory legislation that, if passed, could curtail oil and gas exports to B.C. and drive up the price of fuel for Lower Mainland motorists.
Ottawa and Alberta have proposed investing in the Kinder Morgan pipeline with public funds to backstop it against uncertainty, while continuing to fight B.C.
The B.C. Court of Appeal is the province’s highest court. Only the federal government can send a reference question to the Supreme Court of Canada. Eby said Ottawa showed no interest in filing a joint question to that court.
“As far as what we’re able to do in law, we’re only able to go to the Court of Appeal, and that’s what we’re doing,” he said.
If B.C. loses its case, Eby wouldn’t say whether he would try to then appeal to the Supreme Court of Canada.
“We’ll cross that bridge when we come to it,” he said.
Premier John Horgan said Wednesday the issue is about properly asserting B.C.’s ability to protect the coast from oil spills.
“If we’re going to be transporting potentially hazardous materials through British Columbia, I think British Columbians want to have the ability to defend themselves,” said Horgan.
“Our expectation is the reference question will clarify jurisdiction,” Horgan added.
“We believe we have jurisdiction to protect the interest of British Columbians. Our neighbouring province disagrees with that. Our federal government disagrees with that.”
B.C. could also have gone to a lesser court, the B.C. Supreme Court. But Eby said that was also rejected.
“Typically when you go to the Supreme Court, as the B.C. government did in the polygamy reference, it’s because you are anticipating they are going to have to call a lot of testimony from individuals and it will be more like a trial process,” he said.
“When you go to the Court of Appeal, typically you’d have a more paper-based record for the court. In this case, one of the big factors informing our decision to go to the Court of Appeal was our desire to get finality around this as soon as possible. This is the highest level of court to which we could go in British Columbia.”