B.C. RAISES ANTE IN PIPELINE FIGHT
Government asks court to rule on right to regulate flow of heavy oil
The Horgan government upped the stakes in its battle with Alberta on Thursday, formally asking B.C.’s highest court whether B.C. can regulate the flow of heavy oil.
The B.C. government sent draft legislation Thursday to the B.C. Court of Appeal, asking it to rule whether the province has the right to put restrictions on companies, such as Kinder Morgan, which moves diluted bitumen to Burnaby through the Trans Mountain pipeline.
Premier John Horgan called the reference a way for his party to protect the province and its coastline from an oil spill. Horgan promised during last year’s election campaign to fight Kinder Morgan’s proposed $7.4-billion tripling of the capacity of the Trans Mountain line, which would mean as many as 350 more trips a year by loaded oil tankers through the Burrard Inlet and the Salish Sea.
Supporters of the project call B.C’s move as a delaying tactic aimed at stopping the project, which will provide Alberta the west coast access it wants for increased ocean shipments to the U.S. and new markets in Asia.
“B.C. should have a say over whether we put our coast, streams, rivers, and tens of thousands of jobs, in harm’s way,” said Horgan.
B.C. asked the court to review specific proposed amendments to its Environmental Management Act that would give the province the authority to regulate the effects of heavy oils, including diluted bitumen.
The proposal would add a hazardous substance permit section to the act.
Before issuing a permit, a company would have to satisfy the province that it had sufficient capacity, including dedicated personnel and equipment, to respond effectively and within a specified time to a heavy oil spill. Companies would also have to post security or have access to financial resources to respond to spills and to provide compensation to individuals, the B.C. government, local governments and First Nations affected by a spill.
Legal experts said Thursday that the jurisdictional question will not be answered before a Kinder Morgan-imposed May 31 deadline for receiving certainty that it can build the project through B.C. Citing the B.C. government’s opposition, Texas-based Kinder Morgan earlier this month suspended all non-essential spending and said if it doesn’t get that certainty it will walk away.
Kinder Morgan said Thursday it has not wavered on its demands. “The comments and proposed legislation put forward by the province of B.C. today signal the province’s continued intention to frustrate the project,” spokeswoman Ali Hounsell said in writing.
Alberta Premier Rachel Notley lashed out at the B.C. government. She said the B.C. government is trying to exploit a constitutional loophole around the environment to target and harass the pipeline project.
But legal experts said the question was well-prepared and clearly defines the issue B.C. wants the court to examine. “I think it’s a smart and fair opportunity for B.C. to sort out the question in terms of the legal parameters,” said Margot Young, a professor at the University of B.C.’s Allard School of Law.
Young said the core issues of jurisdiction will be fully engaged by the court: Does B.C. have the authority to enact the legislation? Can the legislation apply to hazardous substances brought into B.C. from another province? And does existing federal law override the proposed B.C. law.
Jason MacLean, an assistant professor of environmental law at the University of Saskatchewan, said he believes B.C. has a good chance of succeeding. “I think British Columbia can make a very good legal argument that its proposed legislation is limited to its own territorial lands and waters and is designed not to contravene the federal government’s authority, but rather to complement it,” he said.
Both Young and MacLean say the question will likely end up before the Supreme Court of Canada, where judges have stipulated a form of co-operative federalism where power is to be shared where possible.
Andrew Wilkinson, B.C.’s Liberal Opposition leader, said the NDP’s court reference questions and proposed legislation doesn’t make any sense because it excludes tanker traffic. The NDP should have waited a few weeks to see if Ottawa tables legislation to exert clear federal power over the Kinder Morgan pipeline, said Wilkinson.
Andrew Weaver, leader of the B.C. Green party that supports the NDP minority government, said he was pleased the government is standing up for British Columbia, adding that the approval process for the pipeline expansion was deeply flawed.
Business groups were dismayed by B.C.’s move. Chris Gardner, the president of the Independent Contractors and Businesses Association, called B.C.’s reference a desperate attempt to delay and kill the project.
Gardner said B.C.’s concerns over this project were already heard during an exhaustive four-year review process and is concerned investors are losing confidence in Canada’s ability to complete significant projects.
The Canadian Association of Petroleum Producers also called the reference case another stall tactic of a project approved 18 months ago by the federal government.
“Enough is enough — it’s time to build Trans Mountain or risk the livelihood of thousands of Canadians and Canada’s reputation as a fair place to do business,” said CAPP president Tim McMillan.