With the announcement on Wednesday that the B.C. government will file its reference case on the ability of the province to regulate the transport of diluted bitumen in the Court of Appeal by April 30th, it’s finally official: the much-debated constitutional question will be put to the test.
Alberta Premier Rachel Notley has repeatedly said that B.C.’s intention to regulate the transport of diluted bitumen will “break the rules of Confederation,” but provinces have strong jurisdiction over the environment according to Jocelyn Stacey, an assistant professor specializing in environmental law at UBC’s Peter A. Allard School of Law.
“[B.C.] can enact constitutionally valid legislation when it comes to protecting the environment, as long as it’s not specifically targeted at a federal project like the Kinder Morgan pipeline,” Stacey told DeSmog Canada.
“A court’s going to have to take a look at that to make sure that that legislation is actually with respect to the environment, not in relation to a federal undertaking,” Stacey said.
“The question that arises after that is: well what happens if that provincial legislation, even if valid, conflicts or would impair the pipeline?”
This is the question the courts will try to answer with B.C.’s reference case.
“The court needs to have the actual content of those regulations so that it can discern whether those regulations are valid and then, assuming they’re in relation to the environment, being able to assess whether or not they would impair the pipeline project,” Stacey said.
The specifics of the regulations are not yet available, but in January B.C. announced a proposal to restrict the transport of diluted bitumen until a scientific inquiry into the impacts of a spill could be completed alongside a proposed new proposed regulations under B.C.’s Environmental Management Act to improve oil spill response and recovery.
‘The constitution at work’
Stacey echoed comments made to DeSmog Canada last week by Jack Woodward, who drafted Section 35 of the constitution on aboriginal rights.
“They’re not getting how the constitution works,” Woodward said in response to statements by Alberta Premier Rachel Notley and Prime Minister Justin Trudeau implying B.C.’s actions are illegal or unconstitutional.
“It’s true that Canada could authorize a pipeline, but it’s also true that B.C. could probably govern safety aspects of that pipeline within B.C. including regulation of hazardous products, such as diluted bitumen,” Woodward said.
Stacey called the debates over the pipeline “the constitution at work.”
“Every major development project is subject to both federal and provincial legislation, as well as local bylaws and in some cases Indigenous law as well,” she said.
Most things regulated by multiple levels of government
Most things in Canadians’ daily lives are regulated by multiple levels of government and pipelines like Kinder Morgan Trans Mountain are no different.
Stacey points to pesticide use as an example of something that is regulated by all three levels of government in a compatible way.
“The most restrictive level of regulation in many cases is at the local level, where many municipalities have bylaws that prohibit the use of cosmetic pesticides,” Stacey said. “And because that doesn’t conflict with any higher level of government, all three levels of regulation are still allowed to exist and operate harmoniously.”
But what happens when different levels of governments are feeling less harmonious?
The billion-dollar question now is: what kind of regulations can B.C. come up with that don’t cross the line into “impairment” of the pipeline?
One example would be implementing additional permitting requirements.
“So in order to increase the transport of bitumen, any prospective transporter would have to submit certain documentation and fulfill certain reporting requirements about emergency response for example before the province would grant an approval,” Stacey said.
That type of legislation would build on the B.C. Supreme Court’s decision in the Coastal First Nations case against the Enbridge Northern Gateway pipeline, where the court recognized that the pipeline disproportionately affected B.C.’s interests.
In that case, the province of British Columbia and Enbridge Northern Gateway were ordered to pay $230,000 in court costs to both the Gitga’at First Nation and Coastal First Nations. The B.C. Supreme Court found the province erred when it signed an agreement that granted environmental decision-making authority for the pipeline to the federal government.
The concern over bitumen spills was also addressed in the National Energy Board’s conditions for the approval of Trans Mountain.
“One of the conditions … that Kinder Morgan has to comply with under the NEB approval is it has to satisfy the NEB that it can and is prepared to clean up a bitumen spill in any environment under any conditions before the pipeline is allowed to start operation,” Stacey noted.
“This isn’t something that B.C. is coming up with out of thin air. This is actually a problem that’s been recognized by the NEB and has been agreed to by Trans Mountain in moving forward with this project.”
Which leads us to the next billion-dollar question: can Kinder Morgan prove it can clean up a bitumen spill, given the lack of basic research on the issue?
“Even if B.C. can’t impair the operation of the pipeline, it might be that by moving forward with some conditions, it can access information that it doesn’t otherwise have access to that would allow B.C. to better prepare for a spill response.”
During the National Energy Board review, Kinder Morgan refused to provide its oil spill response plan to the B.C. government, citing security concerns.
“It goes back to a dissatisfaction with the NEB’s process in evaluating the pipeline and I think a concern that the NEB is not going to be a regulator that sufficiently protects B.C.’s environmental interests,” Stacey said.
“B.C. likely wants to have a little bit more control and insight over pipeline operation.”
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