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Lawyers at Ecojustice plan to argue in front of the Supreme Court this week that environmental protection is an underlying principle of the Constitution, just like democracy, human rights and the rule of law.

The environmental law charity is one of many intervenors making arguments on Jan. 16, in a hearing that will decide whether the B.C. government can block heavy oil from flowing through the expansion of the Trans Mountain pipeline.

But while the case has important ramifications for the fate of that fossil fuel project, Ecojustice’s approach has much more profound implications.

If the constitutional status of the environment is recognized, that could ensure its protection beyond the whims of the government of the day. In other words, like issues surrounding human rights, future governments could be constrained in what they could do to the environment.

“The Supreme Court has said over and over again that these sort of matters are so fundamental to our existence, to our society that, even though they’re not written explicitly in the Constitution, they still exist and they inform the analysis that’s before the Court,” said Ecojustice staff lawyer Kegan Pepper-Smith, in an interview Jan. 15 in his Ottawa office.

“And we say, although environmental protection isn’t written into the Constitution, it’s so fundamental that it should also be considered one of those principles.”

File photo of the Supreme Court of Canada in downtown Ottawa. The Court will hold a hearing Thursday on the right of the B.C. government to decide what flows through the Trans Mountain pipeline. Photo by Alex Tétreault

Pepper-Smith, who has been with Ecojustice since 2016, said it’s rare for cases with such significant environmental impact to get to the Supreme Court, so it presents a unique opportunity. He will be joined by his colleague, lawyer Harry Wruck.

The two lawyers are prepared to defend against accusations that they are asking the Supreme Court to step on the toes of duly elected governments. The decision on assisted suicide, said Pepper-Smith, provides a recent example where it took the Court to find that illegal assisted suicide violated the Charter.

Ecojustice has gone through 30 years’ worth of Supreme Court jurisprudence and has found what Pepper-Smith calls a “common thread” through each decision that touched on the environment — a respect for environmental protection as a fundamental value to society.

In a 1997 decision, for example, the Court described the “all-important duty of Parliament and the provincial legislatures” to protect the environment. That word, “duty,” implies that such protection is more than just a right of Canadians, argued Pepper-Smith.

"We say now that, in recognition of that jurisprudence, over and over recognizing how fundamental it is to society and to Canadians and what that truly means, is that it has this constitutional status, and it should be finally recognized as such."

Ecojustice staff lawyer Kegan Pepper-Smith in Ottawa on Jan. 15, 2019. Photo by Andrew Meade

What’s more, Canada’s courts have often respected what’s known as the “living tree doctrine,” which says the Constitution must be reinterpreted as the times change and society evolves.

In a 1985 decision on Manitoba language rights, for instance, the rule of law was described as a “fundamental principle of the Canadian constitutional order.”

More famously, its 1998 decision on Quebec secession states that the Constitution “is more than a written text,” and in fact “a superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading.”

The case on Thursday will hear the federal government defend its constitutional authority over transportation projects that cross provincial boundaries. Ottawa says that letting a province regulate what flows through the pipeline is tantamount to tearing up that constitutional authority.

B.C. had asked the provincial court of appeal to decide whether it can regulate the flow of heavy oil with a permit system. The panel unanimously ruled that it was not within the authority of the legislature to throw up those boundaries — that it went beyond provincial jurisdiction.

In this photo dated Dec. 5, 2019, a worker in Alberta takes measurements for the Trans Mountain pipeline expansion. Trans Mountain Photo / Facebook

Jan. 16 is the only day for submissions in the case, officially called Attorney General of British Columbia v. Attorney General of Canada. Ecojustice will be making arguments alongside First Nations, municipalities, industry representatives and others. The Supreme Court could then take six months to a year to come to a decision.

If the Court doesn’t recognize that environmental protection is an underlying principle of the Constitution, said Pepper-Smith, then the status quo prevails. What that really means, however, is that Canadians are increasingly at risk.

“With the existential issue of climate change and environmental degradation, there is this underlying foundation, this architecture, a lifeblood, of environmental protection. Without that...none of the other enumerated powers in the Constitution matter,” he said.

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This is a rather strange argument to make, it seems to me. Even if the SC would agree that environmental protection is a constitutional duty, it does not follow that therefore BC has the right to regulate it. Environment is a shared jurisdiction so the burden can be put on the federal government as well (and, in the interest of efficiency, that would be the better place since it has the undisputed right to build and operate the infrastructure). But whether it is doing enough is not the question before the court. It's remarkable that the SC accepted to hear this case, given the unanimous decision by the Court of Appeal.

Many people are increasingly coming to understand that "the environment" (e.g. everything) is supra-jurisdictional and that our hubristic assertions of dominion by this or that are spurious; our institutions and disputes puny within the far broader jurisdiction of planetary climate and ecological systems, once referred to by terms such as "Providence", "God", "Fate", etc. It would be good to recognize this indisputable fact in law, if only for form's sake.

It is no surprise that the Supreme Court finds this appeal not just worthy of consideration, but legally challenging and therefore professionally and ethically interesting.

Consideration of the environment must form part of the resulting decision. It must also resolve the basis of many inter-provincial disputes, not dissimilar to the recent case concerning the transport of alcoholic beverages from Quebec to New Brunswick. The SC left open the concern that no harm should befall any province in the transport of materials or goods. The physical characteristics and potential impact of the material should be on the table; transporting zero-emission electricity or clean water across provincial boundaries is completely different than transporting oil products. It will be interesting to see how that decision applies to highly toxic diluted bitumen delivered in the hundreds of thousands of barrels a day by the federal government, no less, via the proposed pipeline to BC’s south coast for export purposes.

It is incorrect to state or imply that BC is trying to “stop” the pipeline. It has requested from now no less than two courts to make a decision on what exactly it can do legally to protect the environment and economy within its own jurisdiction. There has been no adequate professional-level, in-depth risk assessment conducted by the TMX proponents, notably in a marine environment characterized by very complex and specific ecosystems, strong tides and widely varying seasonal weather conditions, and where 3.5 million people live and create nearly two-thirds of the province's wealth.

The false assumptions, misinterpretations of BC’s intentions, rhetoric, threats, childish bullying and condescension directed at BC and its government from beyond its borders over two years took BC’s collective breath away. The BC government responded like an adult and asked the courts to define the parameters, if any, within which it could work with toxic substances sent its way, and to regulate the flow and conduct tests. One court so far provided its decision, and it was widely seen as a poor and simplistic judgement by the BC Court of Appeal that purposely ignored two of the three questions posed in the reference case:

“The BC government, elected in May 2017 due in part to its opposition to the TMX project, acknowledged that it has no jurisdiction over interprovincial undertakings, but nevertheless sought legal advice to determine its options to protect BC from some of the effects of the pipeline that caused concern among BC voters, such as spills (EMA Reference, para 36). In April 2018, the BC government proposed an amendment to the Environmental Management Act [EMA], which included a “hazardous substance permitting scheme,” a law designed to give the provincial government the power to implement regulations and conditions over crude oil in the province through permits.”

Further, an opinion by a legal firm that represented one of the Indigenous intervenors in a submission to the BC Court of Appeal reiterated how their submission was ignored:

“During the reference hearing, the court heard from a wide range of Indigenous intervenors, all of whom, while differing in their support for the proposed amendments, were alike in their asserting indigenous sovereignty. Unfortunately, the Court’s final decision was strikingly bare of any discussion about the arguments of the Indigenous intervenors.

“Heiltsuk First Nation, for whom we were honoured to act, submitted that Indigenous governments are part of Canada’s evolving system of cooperative federalism. Heiltsuk reiterated the importance of all levels of government, including indigenous governments, having the ability to enact environmental protections. For Heiltsuk, these were timely arguments – in 2016, Heiltsuk experienced, first hand, the devastating effects of gaps in Canada’s oil spill response and compensation regime, when the grounding of an articulated tug-barge in Heiltsuk traditional territory resulted in a catastrophic fuel spill, leading to inadequate spill response, and an inability of Canada and BC to force the polluter to conduct a robust environmental impact assessment in the wake of the spill.

“Court references provide occasion for the court to opine on key issues that shape the very constitutional foundation of Canada’s legal framework. In this Reference, the court could have addressed fundamental questions about the role of indigenous governmental authority under Canada’s constitution. By failing to engage with the submissions of the Indigenous intervenors, the court missed a valuable opportunity to speak about the constitutional status of Indigenous governments that have existed for thousands of years, and their role in protecting the environment.”

Regarding the three questions the B.C. government asked the B.C. Court of Appeal to resolve in its reference case, the judges focussed on only one, the jurisdictional authority of the federal government on projects it owns or that cross provincial boundaries. No other consideration was considered. One judge actually came out and said this authority allowed them to “ignore the other questions," and hence the basis for and appeal to a higher court was immediately made by the Attorney General of BC.

“On May 24, 2019, the BC Court of Appeal released a much-anticipated decision in the Reference re: Environmental Management Act (British Columbia), 2019 BCCA 181. BC asked the Court of Appeal to address BC’s constitutional authority to amend the Environmental Management Act and impose conditions on the flow of “heavy oil” in the province. Unfortunately for the province, the Court of Appeal found against BC on the first of three issues, namely if BC’s proposed amendments were environmental protection laws within BC’s constitutional jurisdiction. In a unanimous 5-0 decision, the Court determined that the “pith and substance” (or “dominant purpose”) of the proposed amendments was to place conditions on, and if necessary, prohibit, the carriage of heavy oil via federal projects, and in particular the proposed Trans Mountain pipeline expansion project. Since the federal government has sole constitutional authority over the construction and operation of interprovincial “works and undertakings”, including interprovincial pipelines, the court opined that the proposed amendments would not valid. British Columbia has since appealed to the Supreme Court of Canada.”

In addition to these points of appeal, there are the prior precedences of the SCC and the Federal Court of Appeal. There is, of course, the recognition of the protection of Indigenous rights under the Constitution, and that was brought to the surface under the SCC in the Delgamuukw case (1997). This forms the background today for many cases where traditional Indigenous lands are under potential threat by industrial projects.

The FCA heard several appeals of pipelines in BC over the years, usually deciding in favour of First Nations opposed to pipeline development within their unceded territory. The latest appeal to the FCA, led by the Coast Salish T’sleil-waututh, is currently being deliberated after the second go-around of federal consultation was felt to be inadequate, namely in addressing the specifics of the protection of marine, riparian and ground water ecosystems and economies.

There is also the 1984 SCC decision that places ownership of the seabed and coastline surrounding and under BC’s inland seas, which essentially covers the entire marine tanker route from the pipeline terminus to the open Pacific Ocean:

“… British Columbia owns the waters and submerged lands of the Strait of Juan de Fuca, the Strait of Georgia, Johnstone Strait and Queen Charlotte Strait and the waters and submerged lands between major headlands (bays, estuaries and fjords). […]”

In addition to these legal and ethical issues are the questionable economics behind TMX as so well reiterated by economists and investigative journalists published in the National Observer and elsewhere.

And, of course, there is the overriding issue of climate change which rightfully questions the foundational reasoning underpinning our subservience to fossil fuels. Just where is the Transition so many leaders talk about but utterly fail to define? What is the Plan? If they continue to fail to act, then the people will likely act at the ballot box, in their personal and business economies, and in the opinion columns in mainstream and social media. And not a moment too soon.

BC will suffer most of the ‘pain’ of this project and not sufficient, if that is even possible, gain to make this viable. I hope the court recognises this right in the Constitution. Do we want this planet to survive as anything other than a barren wasteland.? Look at Australia to see the acute reality of climate change!