Clarity from the court - The Orca

Clarity from the court

Suzanne Anton

Suzanne Anton: the BC Court of Appeal’s ruling was clear, decisive, and instructive.

Well, that was easy.

At least 15 lawyers paid for by grateful taxpayers; 29 or so additional lawyers paid for by various entities (lawyers love a good constitutional case); five judges of the BC Court of Appeal, including the Chief Justice of BC; a good clear description of constitutional principles; and one straightforward unanimous judgement by Madam Justice Newbury – a succinct 105 paragraphs.

The conclusion: Everything about the TransMountain pipeline is federal jurisdiction. In every way.

In addition, a bucket of very cold water was poured over the Coastal First Nations v. British Columbia (Environment) (2016) case, which had vastly increased the environmental authority of BC over interprovincial pipelines. That’s now gone.

The issue before the court was not exactly the TransMountain pipeline, but ostensibly how much authority could the province claim under the Environmental Management Act.

The court did not take too much time:

 “I have already suggested that although [the legislation] is framed as a law of general application, it is intended, and (more importantly) its sole effect is, to set conditions for, and if necessary, prohibit, the possession and control of increased volumes of heavy oil in the Province. Heavy oil will enter the Province only via Trans Mountain’s interprovincial pipeline and railcars destined for export.”

BC’s argument centered on the fact that environmental regulation is both federal and provincial (correct), therefore the province has authority to regulate the pipeline (not correct).

BC relied in part on the Coastal First Nations case mentioned above. That case, which seemed dubious at the time, but which was not appealed, said that BC needed to perform its own environmental assessment of the proposed Northern Gateway project. The difficulty was that it is impossible to tell what the province could do in its assessment without impairing federal jurisdiction.

Unlike Coastal First Nations, this current decision is as clear as it gets:

“In my view, [the legislation] does cross the line between environmental laws of general application and the regulation of federal undertakings. Even if it were not intended to ‘single out’ the TMX pipeline, it has the potential to affect (and indeed ‘stop in its tracks’) the entire operation of Trans Mountain as an interprovincial carrier and exporter of oil. It is legislation that in pith and substance relates to, and relates only to, what makes the pipeline ‘specifically of federal jurisdiction.’”

BC is standing in the way of Canadian prosperity by standing in the way of the TransMountain Pipeline, which should have been nearing operation by now. We lose tens of millions every day by our inability to ship Canadian oil to international markets. We are losing a friend in our neighbouring province of Alberta.

We pay ultra-high gasoline prices, which Premier Horgan says he is concerned about.

The Premier lost his key ally and friend in the west, former Alberta Premier Notley, over his opposition to the pipeline. Now he’s picking a fight with the Prime Minister, which can’t be good for BC.

He wants to line up the same 44 lawyers again in front of the Supreme Court of Canada, in an appeal which is sure to be futile.

And I don’t even believe the public is with him – most British Columbians understand international trade and its importance to Canada.

Time to get out of the way, to help rather than hinder, and let the pipeline be built.


 Hon. Suzanne Anton QC is a former Minister of Justice and Attorney General of British Columbia and a former Vancouver City Councillor