OIL TANKERS ASIDE, B.C.’S ‘TOOL BOX’ TO BE TESTED

The B.C. New Democrats admitted Thursday their much-vaunted regulatory “tool box” does not include the power to stop tanker traffic in B.C. waters, increased or otherwise.

This after NDP vows in the last election to use “every tool in the tool box” to stop expansion of the Trans Mountain pipeline and an accompanying sevenfold increase in tanker traffic.

The latest backdown on the supposed tool box is in the proposed legislation being referred to the B.C. Court of Appeal to test provincial powers to regulate the movement of heavy oil from Alberta.

The amendments to the provincial Environment Management Act apply only to movement of bitumen by rail and pipeline. Specifically excluded from the obligation to secure permits to move increased amounts of bitumen are ships, including tankers.

Asked about the exclusion at a morning press conference, Attorney General David Eby said the reasons were both jurisdictional and practical.

For one thing, tankers are regulated federally, said Eby. For another, the province does not have the capacity to issue permits for shipping.

As well, the permitting requirement would not apply to the estimated 60,000 barrels of bitumen that move every day through the existing Trans Mountain pipeline nor the 450,000 barrels moved every year by rail.

Instead, permits would be needed only for increased shipments of bitumen, notably the added 590,000 barrels a day that would flow through the twinned Trans Mountain line.

The focus on increased shipments prompted Alberta Premier Rachel Notley and others to ask why B.C. isn’t regulating the existing flow of bitumen if it finds the substance so hazardous and unhealthy.

Premier John Horgan said the province concluded it would be “unfair” to impose permitting on existing flows because those were, in effect, approved by the federal government.

The latest narrowing of the province’s jurisdictional claims follow on the one admitted by Environment Minister George Heyman in the legislature earlier this month.

He disclosed that on his first day on the job as environment minister last July, the premier told him that:

“He had been given the legal advice that stopping the project was beyond the jurisdiction of B.C., and to talk about it or frame our actions around doing that, as opposed to defending B.C.’s coast through a variety of measures that were within our jurisdiction, would be inappropriate and unlawful. He advised me to not do that.”

No more talk about stopping the project.

No going after tankers or the existing flow of bitumen by rail or pipeline.

What does that leave in the B.C. government tool box?

Just the proposed legislative amendments, seeking to regulate bitumen as a hazardous substance and requiring pipeline operators and railway companies to obtain permits for increases above and beyond peak amounts moved in 2013-17.

Permits to be dispensed by a provincial regulator, who would have power to attach conditions regarding capacity to prevent spills and detect, respond promptly, clean up and pay compensation for any that occur.

Only bitumen is set out in the accompanying schedule of hazardous substances. But the amendments give cabinet the power to add substances and vary the composition, definitions and amounts regulated.

Then the three questions to the court:

Is the legislation within provincial jurisdiction to enact?

Could it apply to bitumen brought into B.C. via an interprovincial pipeline or railway?

To what extent, if any, would federal legislation limit or override the provincial legislation?

The case goes to the B.C. Court of Appeal on a timetable to be set by the court. Among matters still to be determined are the number of interveners and the time allowed for them to prepare responses.

Ottawa will surely intervene in defence of federal jurisdiction.

Quebec, ever protective of provincial powers against federal encroachment, would likely intervene on the side of B.C.

Given the stakes, the major pipeline companies and railways will probably make an appearance. I’d also expect interventions from First Nations.

Alberta will be there arguing against B.C., Premier Notley announced Thursday.

“The powers that they are seeking through this court reference are a recipe for economic gridlock,” she told reporters.

“If B.C. has the power to regulate the increased flow of bitumen based on environmental concerns, then that power would be extended into every province.”

She may well be right that if B.C., under the guise of environmental management, has the power to regulate or even slow the flow of bitumen via a federally-regulated rail line or oil pipeline, then other provinces could do the same.

Alberta could try to restrict natural gas piped in from B.C., or materials shipped by rail or even, in the name of health and safety, interprovincial trucking.

But for all Notley’s insistence that “the courts will see right through” the B.C. action, the reference case is grounded in a serious, if debatable, plea for the courts to define a middle ground in the shared federal-provincial jurisdiction over environmental regulation.

Besides, if the Albertans are so sure the federal power will prevail in this jurisdictional scrap, she ought to have supported the B.C. pitch to make this a reference case to the Supreme Court of Canada.

Only Ottawa has the power to go directly to the high court. If the federal government were to go that route, the proceedings would be expedited, the answers final and the whole country would know sooner whether B.C. has a valid claim or not a legal leg to stand on.

The reference case is grounded in a serious, if debatable, plea for the courts to define a middle ground in the shared federal-provincial jurisdiction over environmental regulation.