The BC pipeline reference case in context

George Hoberg
May 24, 2019

The fascinating thing about the Trans Mountain case is that it raises all sorts of questions  about what kind of country Canada is, and in particular who gets to decide what issues? Today’s issue is about how much say a provincial government has about a pipeline that crosses provincial boundaries, specifically whether the Province of British Columbia can regulate what flows through the pipeline.

In a decision released today, the BC Court of Appeal gave a resounding “no” to BC’s efforts to prevent increases in the amount of diluted bitumen flowing through the province. In a unanimous decision, the court ruled that BC proposed regulation was “targeted legislation that in pith and substance relates to the regulation of an interprovincial (or “federal”) undertaking”, specifically the Trans Mountain Expansion Project. As a result, it is unconstitutional.

This decision is a significant blow to the Horgan government’s efforts to block the Trans Mountain Expansion Project. The province has already announced that they will appeal. But it is just one piece of larger Trans Mountain conflict, which is itself only one level of a three-level struggle going on over pipelines and related issues.

A conflict at 3 levels

For most careful observers of the issue, the BC reference case was never considered the biggest risk to the viability of the Trans Mountain Expansion Project. That remains how courts will deal with the issue of respecting Indigenous rights after the federal government gives its likely approval to the project. In other words: what say do Indigenous groups have on projects affecting their traditional territories?

And remember, even if those constitutional issues get resolved in the project’s favour, the project will still be facing a protracted and divisive civil disobedience campaign.

Oil vs. the Environment

At the second level, the Trans Mountain conflict is directly tied to a larger issue about oil sands expansion and environmental protection in in Canada. Both the oil sector and the province of Alberta are firmly committed to increasing oil sands production, and desperately need greater access to markets to increase revenues. But Canada has yet to construct a plan that puts us on a path to meeting our greenhouse gas emission reduction targets pledged to the United Nations. Trudeau’s plan that got us part of the way there is under threat by defections from the Conservative governments now controlling the country’s two largest emitting provinces. We’ve yet to reconcile growing emissions from the oil sands with Canada’s requirement to reduce emissions significantly.

This second level is of course all tied up with the drama of the federal election coming up in October. Energy and climate policy will be central to the battle between Scheer’s Conservatives and the three parties to their left.

Who decides? What kind of country is Canada?

The third level of this conflict is who gets to decide what in Canada. Courts have now made it quite clear that neither municipal or provincial governments cannot take actions that have the effect of thwarting,  frustrating, or stopping an interprovincial pipeline. Unless this BC reference is reversed by the Supreme Court of Canada, the next big question is how much say Indigenous groups get on the issue of projects affecting their traditional territories.

The second, oil vs environment level of the conflict overlaps with this third level about what kind of country Canada is. The premier of Alberta has gone so far as to threaten secession if the province doesn’t get at least one new oil pipeline to new markets.

Today was a significant, but not surprising, setback for opponents of the Trans Mountain Expansion Project. But it’s just another stage in a long and protracted battle about pipelines, reconciling oil sands expansion with Canada’s environmental commitments, and the decision rules for governing Canada.

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