The Supreme Court of Canada has unanimously dismissed an appeal that would have allowed the B.C. government to regulate heavy oil flowing through its territory on the Trans Mountain pipeline.
The swift decision from the bench was a stunning end to a daylong slugfest where justices grappled with questions surrounding where genuine environmental protection should fit when considering issues of legal jurisdiction.
It means B.C. can’t move ahead with new rules that would have regulated the heavy Alberta oilsands product called bitumen to be sent down the completed Trans Mountain expansion project to a terminal in metro Vancouver.
“The Supreme Court of Canada has upheld the rule of law and put an end to the British Columbia government’s campaign of obstruction against Alberta energy," declared Alberta Justice Minister Doug Schweitzer, reacting to the decision.
Environmental law charity Ecojustice said the Supreme Court's decision leaves the environment and communities vulnerable to toxic spills.
Lawyer Kegan Pepper-Smith said he was "deeply concerned that the court refused to confirm that governments at all levels have both a right and a constitutional duty to protect the environment."
Oil lobby 'pleased, but not surprised'
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Lawyers representing Canada, as well as oil and gas and transportation companies, argued that only the federal government should have final say over how products can be transported across provincial borders, and that it can still take environmental concerns into account as part of its overall assessment of pipeline projects.
Canada and others had argued the Constitution does not allow a province to decide whether and how goods can be transported, even in cases of protecting the environment. Ottawa said that if the B.C. rules were found to be valid, it would only apply to four businesses: the Trans Mountain corporation, now owned and operated by the government, as well as three railway companies.
Natural Resources Minister Seamus O'Regan welcomed the ruling on Thursday, saying it was a "core responsibility" of the federal government to help move natural resources like oil to markets where they can be sold. "We know this is only possible when we earn public trust and work to address environmental, Indigenous peoples' and local concerns, which we are doing every step of the way on TMX," he said.
Paul Chiswell, a lawyer representing the Explorers and Producers Association of Canada, an industry group of small and mid-sized oil and gas companies, told the Supreme Court that “if a province can effectively limit or veto the federal government’s approval of a pipeline, then certain provinces won’t be able to get their natural resources to market, my clients won't be able to get their products to market."
As long as the oil stays inside the pipeline, it is within exclusive federal jurisdiction, argued lawyer Brad Armstrong, representing the Canadian Association of Petroleum Producers, the country’s largest oil and gas lobby group.
CAPP president and CEO Tim McMillan said the organization was "pleased, but not surprised" at the decision. "It is time to unite behind the completion of this nation-building project so Canadians can start to benefit from selling our responsibly produced resources to global markets," he said.
Environmental protection and the rule of law
Many environmental groups, First Nations, municipalities and provinces all intervened in the case that pitted the attorney general of British Columbia against the attorney general of Canada.
Joseph Arvay, external counsel for B.C., had tried to demonstrate that the new rules can coexist with other laws and that its main purpose was not to enforce a ban on pipelines, but to protect the environment by establishing conditions to prevent oil spills.
“Don't let the tail of the enforcement provisions wag the dog of the substantive provisions,” Arvay had warned the justices.
From the beginning, it appeared Justice Malcolm Rowe was suspicious of B.C.’s approach.
When Ecojustice lawyer Harry Wruck argued that environmental protection has now reached “quasi-constitutional status,” Rowe almost immediately challenged him.
“Where do these underlying constitutional principles come from? Did we just cook them up?” he thundered.
“Without a viable environment, we cannot have a Constitution, we cannot have a nation based on laws. We cannot have a society, in effect,” Wruck replied.
Rowe would also say B.C.’s proposed rules were “about taking away the ability of the government of Canada to effectively approve interprovincial pipelines.”
He would imply in a later statement that commerce would be negatively affected. “The uncertainty will kill the business case," he said.
At another moment, Justice Rosalie Abella asked what was different in B.C.’s rules, which would be amendments to existing legislation, from what was already legislatively mandated.
Arvay replied that while it does cover spill response, the rules were designed to be “much more specific.”
“About pipelines?” Abella asked. “About bitumen,” Arvay replied. “It’s designed to be a more specific way of protecting the environment... it happens in this circumstance to have a disproportionate and perhaps a sole effect on a pipeline.”
Heiltsuk discusses 2016 diesel fuel spill
Lawyers for Saskatchewan and Alberta focused on the importance of getting fossil fuels to markets offshore as landlocked provinces. In that respect, they were able to focus attention away from environmental issues.
“We don't dispute that B.C. has legitimate environmental concerns,” said Peter Gall, the lawyer for the government of Alberta. “But in this case, in this situation, the dominant characteristic is the obstruction and interference with the pipeline. In our submission, that's the basis that this case should be decided on.”
Lawyers for Kitigan Zibi Anishinabeg, the Heiltsuk Nation Tribal Council, the Haida Nation and the Little Shuswap Lake Indian Band also made comments Thursday about strengthening the nation-to-nation relationship.
For the Heiltsuk Nation, environmental protection has always been a core value, its counsel said, as it is fundamental to Heiltsuk laws.
It remains particularly sensitive to this after the Nathan E. Stewart barge ran aground in Heiltsuk territory in 2016, spilling 110,000 litres of diesel fuel and other petroleum products into an important Heiltsuk food and cultural area.
Editor's note: This story was updated at 5:47 p.m. Eastern on Jan. 16, 2019 to include reaction from CAPP and the Alberta and federal governments.
"We know this is only
"We know this is only possible when we earn public trust and work to address environmental, Indigenous peoples' and local concerns, which we are doing every step of the way on TMX," said the Minister.......
.... with the obvious exception of British Columbia which just happens to be the "greenest" province in the country in spite of any and all other opinions to date. What a ridiculous statement to make!
“The uncertainty will kill
“The uncertainty will kill the business case," he said..... What business case?
The Supreme Court ruled
The Supreme Court ruled against Canada and the climate. They will argue that it was all about a "point of law" and that the Feds get to do whatever they want. Its in the law. Of course this totally misses the "point of the whole debate". I am not sure how the justices sleep at night given this narrowly focused decision on a point of law because it just means the pipeline which will encourage the spewing of CO2 and will definitely pollute the environment with oil spills will go ahead and contribute to our doom as a species. Thanks Justices.
I don't disagree. But how
I don't disagree. But how do we best fix this? Is there anything in the Charter of Rights that protects the environment, that protects us from poisoning ourselves? If not, should there be?
It's not the Supreme court's job to write the laws, but can we leave big, existential stuff like this to wavering political will?
The Supreme Court decision
The Supreme Court decision seems to have been made before the day began. This "rule of (bad) law" (a phrase so beloved by business when it suits them) along with all the subsidies and TINA (there is no other way) is going to end civilization as we know it. Fire in Australia, drowned islands, disappearing ice, the hottest years on record and a bleak future in SO many ways, but still we double down on fossil fuels. Utter madness.
Federal jurisdiction was the
Federal jurisdiction was the only issue left on the table after the judges knocked all other issues onto the floor. What an extraordinarily myopic basis for a ruling. So many other issues are tied to this, from Indigenous rights, economic justification, ownership (BC owns the coast and seabed to the open Pacific; First Nations never ceded their territory) through to all-consuming climate change.
What kind of confederation forces one province to be a doormat for others when it is expected to assume the brunt of environmental and economic risk from oil spills?
I will be writing a letter to
I will be writing a letter to BC Premier Horgan encouraging him to move up the deadlines under his prescient Clean BC program. The current policy encourages the sale of electric vehicles up to an 80% share of all new vehicle sales by 2040. With Alberta now loudly crowing about the Supreme Court decision, the policy should now be amended to 2030, with a follow-up plan for renewable generation and transmission through BC Hydro.
This will neatly dovetail with the dramatic $300 billion (and climbing) investment by Volkswagen, Toyota and a number of other major carmakers to retool for EVs. Tesla is now making a profit and plans to build a rapid-charging network of stations across Canada, likely available to all makes of EVs. The BC policy will also harmonize with the anti-internal combustion engine policies of the EU and China, a marketplace for 1.7 billion people.
As the result of the investment intentions underway, world oil demand is destined to decrease faster than what historically inaccurate IEA estimates state. BC should strengthen its vital role as a leader ahead of the curve in Canada to follow that demand, like a toboggan down the slope, and displace its unfortunate historic dependency on Alberta oil with BC electricity. TMX may still get built if the currently active Indigenous appeals are negated in the Federal Court of Appeal. But with Keystone and Enbridge both opening pipelines to the US within months, TMX will not be needed. That fact will be illuminated should BC succeed in drastically lowering its demand for Alberta bitumen over the next decade, currently running through the existing pipe that is nearing 65 years of operations.
There are many steps that could be taken to further realize energy independence. One step could encompass a wide-spread switch in emergency, transit and commercial diesel-powered vehicles from liquid petroleum to BC gas, or diesel (gas) hybrid electric. And there are now diesel-electric hybrid marine engines coming on stream. BC Ferries has already ordered two small ferries with this technology.
The Supreme Court decision is a slap in the face to BC's place in confederation. The coast and provincial rivers are threatened by oil spill risk. Climate risk is increasing dramatically. And Indigenous rights are being ignored. With just five million people associated with these issues, it is impossible to incite a separation movement, and any attempt to try would be on par with the pathetic 'Wexit' bluster in Alberta. If our population was an order of magnitude larger, then 35 million people on the coast voting to separate would have great power to establish a boundary and impose regulatory permits to access the coast.
I know, that is just a fantasy. But that shouldn't stop BC from attaining energy independence through Climate Transition Plan that is more powerful than anything posed in Canada before.
A revised Clean Energy BC
A revised Clean Energy BC program would also be empathetic with Washington State Governor Jay Inslee's policies to act on climate change. BC Premier John Horgan and Inslee are on very good terms and are both opposed to TMX due to the threat to the shared Salish Sea ecosystems.
This implies that it is entirely feasible that Victoria BC and Olympia Wa could work together on that. Washington does have a Trans Mountain branch line and they currently refine a lot of the bitumen that BC consumes as refined products (in addition to a refinery in Burnaby). So it's not too far-fetched to think they can come up with a joint policy to dramatically lower their dependence on Alberta oil by lowering emissions in both jurisdictions primarily by replacing gas tanks with electric motors.
This could also benefit BC greatly as it has a huge capacity to expand its renewables and sell clean power across the border as a replacement for oil.
Narrow and thoughtless
Narrow and thoughtless decisions like this by the worlds' supreme courts are corrosive of respect for a true and deeply felt rule-of law-ethos in we the demos. The inevitable and frightening cumulative result is widespread lower-case (the worse kind) contempt of court. Kudos to Ecojustice lawyers and others who essentially (if unsuccessfully for now) argued the obvious point that constitutions exist within the biosphere, not the other way around.