B.C. court case seeks new provincial powers over Trans Mountain

Any hope of a reasonable resolution to the Trans Mountain pipeline impasse dimmed Thursday, when a defiant British Columbia Premier John Horgan followed through with a lawsuit to confirm his province has jurisdiction to restrict an increase in bitumen shipments.

In other words, Horgan, sounding like a lot like a South American strongman dealing with reckless foreign profiteers, isn’t backing down on his opposition to the federally approved $7.4 billion project, despite: Prime Minister Justin Trudeau’s plan to back it through legislation and financial help, federal environment Minister Catherine McKenna’s offer to set up a joint scientific panel to enhance oil spill research, Alberta’s threat to cut off oil shipments, escalating gasoline prices in the Lower Mainland that are a prelude of things to come if Alberta turns off the oil taps, increasing support for the project by British Columbians, pleas from many First Nations to keep it alive so they can reap benefits negotiated with proponent Kinder Morgan Canada Ltd.

“By issuing this reference today, we are confirming that we believe that we have jurisdiction to ensure that if there was a catastrophic diluted bitumen spill we have the ability to take steps to protect our economy and our environment,” Horgan told reporters in Victoria. “The fact that a press release was issued from a Texas boardroom giving a deadline to parties in British Columbia, stakeholders as they call them, is entirely their business. And I have no quarrel with that. We have set ourselves on a course to protect the interest of the people of B.C.”

As previously threatened, Horgan, who heads a minority government clinging to power with the support of three Green MLAs, directed his government to file a reference case at the B.C. Court of Appeal to affirm its right to protect the coast. Specifically, the government asked the court to review proposed amendments to B.C.’s Environmental Management Act that would give it the authority to require a permit of its own – on top of the one the project has obtained from federal regulators — before allowing “hazardous substances” into the province.

The case would clarify whether the province has authority to prevent and manage releases into the environment of substances like diluted bitumen that could endanger human health, the environment or communities, even on federally regulated infrastructure like inter-provincial pipelines or railways.

Horgan’s power play raised concern for the only remaining Canadian pipeline still in progress — and for the future of the  Canadian economy.

“I see this as close to a constitutional crisis,” said Robert Peabody, president and CEO of Husky Energy Inc. “The question is ‘how does this country work?’ Are provinces free to stop free economic movement of goods and services across the country? If Canada goes down that route it’s a very disturbing route for it to go down as a country,” Peabody said on the sidelines of his company’s annual meeting in Calgary.

Alberta Premier Rachel Notley said “the whole economy would grind to a halt” if the B.C. court rules the province has the authority to regulate the flow of oil from the pipeline expansion.

The court case is discriminatory and redundant, said the Canadian Association of Petroleum Producers.

“What Premier John Horgan and his government are doing is a sham,” said CAPP president and CEO Tim McMillan. “They are not acting in the best interests of Canadians, or British Columbians, but instead advancing their own political agenda.”

The B.C. Government’s activist-driven agenda against Kinder Morgan is sending chills through the investment community across Canada and beyond, warned Chris Gardner, president of the Independent Contractors and Business Association.

The court is expected to take longer to issue a decision than the May 31 deadline imposed by Kinder Morgan to resolve the jurisdictional impasse, said B.C. Attorney General David Eby.

The reference case wouldn’t even be the end of it. Horgan said his government could appeal.

In addition, he said, “We will have to see what other jurisdictions do, what our neighbours have to say about this, what other provocative actions they may be taking. We will have to see what other people do and respond accordingly. I don’t want to say this is the beginning or the end, this is another step.”

You’d never know from the fighting language used by the B.C. premier that the pipeline has been safely transporting oil through the province for more than 60 years.

Or, as pointed out by the federal environment minister McKenna in a letter Thursday to B.C. environment Minister George Heyman, that Canada already has a mountain of regulation to ensure a world-leading regime to transport oil and products, including: the Railway Safety Act, the Pipeline Safety Act, the National Energy Board Act, the Canada Shipping Act, 2001, the Marine Liability Act, the Fisheries Act, the Canadian Environmental Protection Act, 1999, and that Ottawa has pledged to spend an additional $1.5 billion to protect its coasts and marine environment.

So far, the only catastrophe related to a B.C. pipeline is Horgan’s handling of the Trans Mountain expansion.