NDP REBUFFED IN COURT CRUSADE OVER PIPELINE
Case against Alberta government tossed, deemed ‘premature’ by the presiding judge
The B.C. New Democrats have lost an embarrassing legal round in the fight with their Alberta counterparts over petroleum and pipelines.
B.C. filed a constitutional challenge to an Alberta law allowing that province to restrict fuel supplies to this province in retaliation for opposition to twinning the Trans Mountain Pipeline.
But the challenge was tossed out in a Calgary courtroom because the legislation, though passed by the Alberta legislature, had never been proclaimed into force by their provincial cabinet.
“I am of the view that a claim seeking a declaration as to the constitutionality of an act that has not yet been proclaimed is premature,” said Justice R.J. Hall in a written decision released Friday. “The claim of the Attorney- General of B.C. is premature, because the act is not in force in Alberta. The statement of claim is hereby struck.”
His five-page written judgment cited ample precedents for the courts not involving themselves in hypotheticals, like ruling on the constitutionality of legislation not in force. One might have expected B.C. Attorney General David Eby to have familiarized himself with those precedents before mounting an expensive court challenge. A simple check of Alberta cabinet orders would have established whether the offending legislation was actually in force.
But when pressed during question period in the legislature Monday, an unapologetic Eby insisted that the reversal was no big deal.
“The entire claim was not struck out,” he said, taking refuge in the court having said that it was merely premature.
“We thought we had a principled argument to make when Alberta brought forward legislation that they were going to turn off oil and gas supplies to British Columbia,” he said to Opposition Leader Andrew Wilkinson.
In an affidavit filed in court, the New Democrats conceded B.C. is dependent on Alberta refineries for 55 per cent of its gasoline and 71 per cent of its diesel, most of it shipped via the Trans Mountain Pipeline.
“The affidavit goes on to say that British Columbia cannot replace that supply from viable sources,” as Hall noted in passing. “It says that reductions in supply from Alberta will cause shortages in British Columbia and that the result could be increased prices, lack of supply and civil unrest in British Columbia.
“The affidavit makes interesting reading as to B.C.’s supply of gasoline and diesel fuel, and its dependence upon Alberta,” continued the judge, confirming B.C. fears were anything but groundless.
Back to Eby: “We thought we had good reason to go to the court as early as we could to raise this issue and say that that would have devastating consequences, certainly, for British Columbia and we believed the action was illegal.”
Outside the house, Eby was more pithy. “Why do we have to wait to get punched in the face before we complain about being punched in the face?”
Otherwise Eby said the government is studying the Alberta court decision and will decide whether to file an appeal.
The judge suggested a more sensible course of action: “Should the Alberta government proclaim the act in force, the Attorney- General of B.C. may recommence a claim.”
But such advice misses the point of the legal grandstanding by governments opposed to the pipeline expansion. Burnaby spent untold thousands of dollars on court challenges, never mind that there was no precedent for a municipality to overturn a federal government-approved project.
The B.C. New Democrats famously vowed to use “every tool in the tool box” in their fight against the pipeline expansion.
Eby initially suggested that B.C. would only be going to court over the threatened fuel restrictions if the Alberta government actually made use of the legislation.
“Clearly the legislation is a bluff,” Eby told the legislature in April 2018 when the Rachel Notley government tabled the bill. “We think they are very unlikely to use this and we think they know it and it is a bill for political purposes only.”
In the unlikely event that the Notley government did try to use it, Eby continued, “we would be in court immediately seeking an injunction to stop them from using it. But we would probably have to get in line behind oil companies that would be concerned about contracts that they have with companies in B.C. to deliver product.”
But after the Alberta government passed its legislation in May, Eby decided that, bluff or no bluff, B.C. was going to court.
“We believe it would be reckless in the extreme and therefore highly unlikely that Alberta will actually attempt to use the powers they granted themselves,” he told reporters, repeating his earlier take on the bill.
Nevertheless, he proceeded to hire legal heavyweight Joe Arvay to file the constitutional challenge that has now been rebuffed.
However Eby decides to proceed in that case, the government will be back in court next month on a different aspect of the pipeline fight.
In a reference case starting March 18, the NDP government is asking the B.C. Court of Appeal whether the province has jurisdiction to regulate the shipment of heavy oil through B.C. by pipeline or rail.
Though interprovincial pipelines and railways are federal jurisdiction, B.C. believes it has a legal opening because of provincial responsibility over the environment.
But even if that line of argument fails, the case will have served the NDP’s larger purpose of sparing no legal expense in fighting the pipeline.
A simple check of Alberta cabinet orders would have established whether the offending legislation was actually in force.