COURTS TIRING OF NDP’S PIPELINE COMPLAINTS
Horgan’s ‘tool box’ of objections to Kinder Morgan is looking pretty bare
The NDP vow to use every tool to stop the Trans Mountain pipeline expansion got another reality check this week, this time in a casemanagement conference at the B.C. Court of Appeal.
“What you seem to be asking for in terms of dates is too ambitious,” presiding Justice David Frankel advised the B.C. government legal team. “There are some assumptions built into your material that I do not necessarily agree with.”
He challenged the government reading of the Constitutional Question Act, the provincial law under which New Democrats are asking the court to validate their attempt to regulate shipments of Alberta bitumen.
“You know, actually it’s interesting, if you read the act, you don’t appear to have a right of audience (in court), either,” observed the judge. The comment drew titters from a public gallery composed mainly of lawyers representing other interests in the case, according to the account by Ian Mulgrew of The Vancouver Sun.
Frankel then set the end of the month as a deadline for would-be interveners to file notice as to why they should be permitted to participate and what they could contribute. Only then will the court begin to consider the next stage.
By May 31, the deadline, set by pipeline owner Kinder Morgan for deciding whether to proceed with the expansion, will have passed. In declining to accept the government timetable and other assumptions, Justice Frankel may have been reflecting the usual reluctance on the part of judges to be drawn into disputes with a major political component.
Nor was it the first occasion where the NDP political agenda on the pipeline was at odds with legal, judicial and constitutional reality:
• July 18, 2017: On taking office, Premier John Horgan advised new Environment Minister George Heyman to drop further mention of the NDP election vow “to use every tool to stop” the Trans Mountain expansion.
“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 would be inappropriate and unlawful,” Heyman confirmed later.
• July 25: New Attorney General David Eby warned the province could not unreasonably hold up or stall permits for the Trans Mountain project. To do so would leave B.C. open to a lawsuit: “We’ll end up paying hundreds of millions of dollars that should be going to schools and hospitals to an oil company.”
• Aug. 29: The New Democrats gained intervener status in a challenge to the project in the federal courts, but not without first enduring a public spanking from the presiding judge.
“British Columbia does not appear to understand the basic ground rules of the complex proceeding it is seeking to enter,” ruled Justice David Stratas of the Federal Court of Appeal. He then tossed out the broad constitutional and political issues the province tried to raise in an everything-butthe-kitchen-sink, last-minute submission. “This court is a court of law that grapples with legal arguments; larger political issues that do not bear on the legal issues are irrelevant and distracting, and, thus, inadmissible.”
He restricted the province to a single 15-page submission and a brief oral presentation, both confined to the narrow matters relevant to the case.
“B.C. must be vigilant in complying with these conditions,” he warned. “If any are breached, the panel hearing the appeal may revoke B.C.’s status as an intervener.”
• Jan. 30, 2018: The activists were briefly in the driver’s seat as the New Democrats announced restrictions on increased shipments of bitumen from Alberta pending review by a scientific panel. Spearheading the move was Environment Minister Heyman, who celebrated that evening over dinner with a group of activists.
• Feb. 22: In the face of an Alberta boycott of B.C. wine, Premier Horgan walked back the threat to unilaterally restrict bitumen. Instead, B.C. would ask the courts if the province has jurisdiction to regulate the movement of bitumen and if so, to what extent.
• April 26: The New Democrats took the wraps off their reference case and again they were forced to lower their horizons. For all the handwringing about increased tanker traffic, missing from the brief to the courts was any suggestion of regulating tankers.
B.C. has neither the jurisdiction nor the practical ability to regulate shipping, conceded Eby. Likewise the province gave up on any notion of restricting existing shipments of bitumen, estimated at 22 million barrels of the stuff every year.
Instead it came down to asking the B.C. Court of Appeal to rule on proposed amendments to the provincial Environmental Management Act to regulate “increased shipments” by pipeline and/or rail.
It was that case drawing the cautionary response from the court earlier this week.
So to recap, the New Democrats have already had to admit they can’t stop construction of the Trans Mountain expansion, can’t stall permits, can’t stop tankers, and can’t restrict existing shipments of bitumen.
All that is left in the tool box is asking the courts if the province can put reasonable restrictions on increased movement of bitumen by pipeline and rail. The answer may be “yes,” so long as the provincial regulations don’t overrule federal regulations or impair the viability of the project.
Even if the New Democrats win on that narrow front, their repeated overreaching of the case to date suggests it was more about pandering to their environmental wing than clarifying a legitimate jurisdictional issue.
You know, actually it’s interesting, if you read the act, you don’t appear to have a right of audience (in court), either.
JUSTICE DAVID FRANKEL, Court of Appeal