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Appeals court rules against B.C. on oil case; matter headed to Supreme Court


Score one for the TransMountain pipeline project.

The British Columbia Court of Appeals ruled this morning the Province of B.C. cannot restrict the flow of oil through the province. The province, in a reference case, was asking the courts to rule on whether it had the authority to create a permitting regime for companies that wished to increase their flow of diluted bitumen, i.e. the proposed expansion of the TransMountain pipeline project.

“The protection of the environment is one of the driving challenges of our time,” wrote Madam Justice Newbury. “No part of the world is now untouched by the need for such protection; no government may ignore it; no industry may claim immunity from its constraints. This reference is not about whether the planned Trans Mountain pipeline expansion should be regulated to minimize the risks it poses to the environment — that is a given. Rather, this reference asks which level or levels of government may do so under our constitution, specifically ss. 91 and 92 of the Constitution Act, 1867.”

British Columbia asserted that it may regulate the pipeline in the interests of the environment — not exclusively, but to the extent that it may impose conditions on, and even prohibit, the presence of ‘heavy oil’ in the province unless a director under the Environmental Management Act issues a hazardous substance permit.

The five justices who sat on the case didn’t agree.

“At the end of the day, the National Energy Board is the body entrusted with regulating the flow of energy resources across Canada to export markets, stated the appeals court ruling. “Although the principle of subsidiarity has understandable appeal, the TMX project is not only a ‘British Columbia project’. The project affects the country as a whole, and falls to be regulated taking into account the interests of the country as a whole.”

David Eby
Attorney General David Eby

Attorney General David Eby said the province is disappointed with the ruling.

“Our government said from the outset that we would stand up for British Columbia’s environment, economy and coast,” he said in a statement issued after the ruling was issued. “Thousands of jobs and billions of dollars in economic activity would be put at risk by a diluted bitumen spill. While we are disappointed with the decision, our courts have an important role to play in upholding the rule of law. That is why we referred this question to the courts in the first place.”

The province will now take the case to the Supreme Court of Canada.

“Our government always said this case would likely be heard before the Supreme Court,” said Eby. “In fact, we asked the federal government to join us in a joint reference to the Supreme Court of Canada. We continue to believe that we have the authority and the responsibility to defend our environment and economy, so we will exercise our right to appeal to the Supreme Court of Canada.”

Andrew Wilkinson
Andrew Wilkinson

BC Liberal leader Andrew Wilkinson said the province should drop the matter completely.

“Today’s unanimous decision by the B.C. Court of Appeal has sent a message loud and clear to John Horgan and the NDP: Stop blocking progress,” Wilkinson said.  “While British Columbians spend the summer paying the highest gas prices in North America, John Horgan and David Eby will keep spending tax dollars to file more lawsuits trying to block a federally-approved pipeline that will increase supply and create jobs. The NDP needs to finally start respecting our constitution.”

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