Former Attorney-General Suzanne Anton on the legal arguments and Supreme Court’s decision on Trans Mountain: When BC said ‘every tool in the toolbox,’ the Justices took them literally.
When the Supreme Court of Canada (SCC) requests that the lawyers wait in the room while they deliberate, the upcoming decision may be quick and painful. Or not, depending on your point of view.
On January 16, after about 20 minutes of deliberation, the SCC dismissed the appeal in BC’s bitumen reference case for the unanimous reasons given last year by the BC Court of Appeal [Reference re Environmental Management Act (British Columbia) 2019 BCCA 181].
I can’t imagine the BC government had realistically thought they had much chance of success.
Still, bottomless lodes of taxpayer dollars were deployed, sending armies of lawyers to Ottawa to argue for BC’s ability to regulate heavy oil as it flows through a pipeline.
BC had very limited support in its submissions. Quebec liked the idea. Vancouver and Burnaby had weak arguments in support. (Burnaby has already lost every challenge it has mounted.)
First Nations argued that they too may wish to make environmental regulations in the future, but their arguments were more placeholders than support. EcoJustice made an untenable constitutional argument.
Lined up against BC: Alberta, of course; the federal government; and multiple industry groups room including shippers, train companies, energy suppliers, and pipeline owners. Each had highly persuasive arguments as to why BC’s proposal was utterly beyond the powers of a province.
Their arguments had the law behind them. The federal and provincial division of powers are set out in sections 91 and 92 of the Constitution Act of Canada. Over 100 years of litigation has provided clear principles for these kinds of cases. Among them: a province and the federal government can choose to cooperate, but the province cannot purport to stop something which is clearly within federal jurisdiction.
An interprovincial pipeline is clearly within federal jurisdiction.
The government of Premier Christy Clark, many will recall, had five conditions for supporting the Trans Mountain pipeline. We got those five conditions satisfied and agreed to support the project. The two parties worked together until a mutually satisfactory arrangement was reached. That is an example of cooperative federalism.
But when a province tries to get in the way of a project, as in this case, where BC wanted to be able to issue hazardous substance permits for the oil in a pipeline, there’s clearly not much cooperation in the works.
No doubt seeing which way the wind was blowing, BC tried a Hail Mary argument at the end of the day, saying that the court should accept that BC would act in good faith. It failed utterly. Echoing clearly throughout the courtroom all during the hearing were the words of Premier Horgan that BC was going to use “every tool in the toolbox” to stop the pipeline.
So when BC’s lawyer suggested that the court shouldn’t worry, it would all be fine, Justice Rowe of Newfoundland and Labrador, who clearly knows the smell of a bad fish, couldn’t restrain himself. “How can I believe they won’t stop the pipeline when that’s what they said they were going to do! I believe them!” [paraphrasing slightly]
Canada’s economy suffers because of the uncertainty resource projects face. The Trans Mountain pipeline has been in the works for a very long time. Other litigation is still underway concerning First Nations consultation.
In the meantime, we are currently losing about $24.50 a barrel in the discount we give to oil purchasers in the US. That’s a nice Canadian subsidy of millions of dollars a day for American consumers.
This bitumen regulation case, brought by BC specifically and explicitly to get in the way of the project, was doomed from the start. I don’t believe it was ever a serious threat, but all these things consume time and resources. Good on the SCC for making a quick decision.
Time to get the pipeline built.
Hon. Suzanne Anton QC is a former Minister of Justice and Attorney General of British Columbia and a former Vancouver City Councillor
- Suzanne Anton also broke down the BC Court of Appeal decision on TMX in June.
- In September, Caroline Elliott proposed the federal election gave John Horgan an opportunity to get what BC needs out of Trans Mountain.
- In June, Maclean Kay and Jordan Bateman considered the winners and losers of (that) TMX decision.