BC Appeals Court reserves its decision on Trans Mountain pipeline

On Friday, a panel of five judges for the British Columbia’s Court of Appeal reserved its decision regarding the hearing on proposed provincial legislation that would impact the Trans Mountain pipeline expansion, which would triple the capacity of the existing line from near Edmonton to Burnaby, B.C., and increase tanker traffic in Burrard Inlet seven-fold. The province had filed the reference case to ask the court whether it can create a permitting system for companies that wish to increase the amount of heavy oil they are transporting through the province.

The federal government says Ottawa, not the provinces, has jurisdiction over inter-provincial projects such as the Trans Mountain pipeline expansion. In court documents, the federal government said the proposed amendments to B.C.’s Environmental Management Act must be struck down because they give the province a “veto” over such projects. The governments of Alberta and Saskatchewan, as well as Trans Mountain Corp., Enbridge Inc., and the Canadian Association of Petroleum Producers, have filed documents in support of the federal government.

Lawyer Jan Brongers said the Canadian government agrees that environmental protection is of critical importance and that there’s a need for robust regulatory regimes. Mr. Brongers said the proposed changed are not merely benign environmental legislation, but a “Trojan Horse” that gives B.C. greater power over projects, including the Trans Mountain pipeline expansion.

Joseph Arvay, a lawyer representing British Columbia, said proposed changes to an environmental law won’t allow the province to refuse to provide a permit to a pipeline operator for no reason, and the amendments only allow the province to refuse to issue a permit or revoke one in cases where the operator fails to follow conditions imposed upon it.

While in opposition, Premier John Horgan said he would use “every tool in the toolbox” to stop the expansion. The court has heard that after his minority NDP government took power in 2017, it received legal advice that it could not block the project. When BC Premier John Horgan announced the proposed changes last year, Alberta Premier Rachel Notley accused him of breaking the rules of Confederation and declared a short-lived ban on B.C. wines.

B.C. has argued it’s not trying to block Trans Mountain or any other resource project but is aiming to protect against ecological harm and require companies to pay for damages. However, the new rules would allow a provincial public servant with expertise in pollution management to apply conditions to permits, which B.C. says would be intended to address concerns posed by a company’s proposed activities.

Peter Gall, representing the government of Alberta, said the permitting scheme is a “vague, amorphous” process that gives wide-ranging discretionary powers to a government official to do whatever he or she thinks is necessary to protect the environment. Mr. Gall said the court should not ignore the “reality of the situation” — that the B.C. government is committed to stopping the project.

The government of Saskatchewan, the Lax Kw’alaams Indian Band and the Beecher Bay, Songhees and T’Sou-ke First Nations also delivered arguments opposing B.C.’s proposed rules. Thomson Irvine, a lawyer for Saskatchewan, said the federal environmental assessment process is rigorous and Trans Mountain has already had to jump through many hoops.

Lax Kw’alaams lawyer Christopher Harvey said the band on B.C.’s north coast is facing dismal economic prospects and has developed a pipeline proposal that would bring oil from Alberta to a marine terminal on its territory or to a refinery in Alaska. The proposed legislation threatens to kill that proposal, Harvey said, adding, “The band objects to its needs, aspirations, rights and options in its traditional territory being thwarted by legislation, such as the amendments, without any band input.

First Nations Heiltsuk Nation and the Council of the Haida Nation, cities of Vancouver and Burnaby, and environmental group Ecojustice delivered arguments in support of the proposed amendments because they would ensure greater resources for spill prevention and response. Assembly of First Nations lawyer Julie McGregor called on the court to ensure that its ruling respects and incorporates the rights of Indigenous Peoples to make decisions about their territories. She said it’s time the federal, provincial, and territorial governments adopt the United Nations Declaration on the Rights of Indigenous Peoples, which calls for free, prior, and informed consent.