A aerial view of Kinder Morgan’s Trans Mountain marine terminal, in Burnaby, B.C., is shown on Tuesday, May 29, 2018. (THE CANADIAN PRESS Jonathan Hayward)

Appeal Court to decide on B.C. pipeline law that would impact Trans Mountain

The hearing has concluded and a panel of five judges has reserved its decision

A British Columbia Court of Appeal hearing on proposed provincial legislation that would impact the Trans Mountain pipeline expansion has concluded and a panel of five judges has reserved its decision.

B.C. filed the reference case to ask the court whether it can create a permitting system for companies that wish to increase the amount of heavy oil they are transporting through the province.

The system would allow a provincial public servant to impose conditions on permits, which B.C. says would help it protect its environment and ensure that companies agree to pay for accident cleanup.

Canada says the proposed amendments to B.C.’s Environmental Management Act are unconstitutional because Ottawa — not the provinces — has jurisdiction over inter-provincial infrastructure.

READ MORE: National Energy Board approves Trans Mountain pipeline again

Federal government lawyer Jan Brongers told court the amendments are clearly intended to impede additional oil shipments through B.C. because they only target heavy-oil transporters that want to increase capacity.

Joseph Arvay, lawyer for B.C., said in his reply on Friday that the goal of the legislation is not to block Trans Mountain and the court should not presume the law would be used inappropriately in the future.

“There’s no evidence to support that theory at all,” he said.

Arvay added B.C. already has environmental assessment legislation that applies to inter-provincial projects, and a ruling that found the proposed amendments interfere with federal jurisdiction would also mean that law doesn’t apply.

The Canadian government has purchased the Trans Mountain pipeline and related assets for $4.5 billion. The expansion would triple the capacity of the line that runs from the Edmonton area to Metro Vancouver and increase tanker traffic in Burrard Inlet seven-fold.

B.C. Premier John Horgan campaigned in 2017, while in opposition, on a promise to use “every tool in the toolbox” to stop the expansion. But after his minority NDP government took power, it received legal advice that it cannot stop the project but it could impose conditions upon it, court heard.

This is a “distinction without a difference,” given that the proposed legislation is unconstitutional, said William Kaplan, representing a consortium of energy producers including Suncor Energy Inc., Imperial Oil Ltd., Husky Oil Operations Ltd. and Cenovus Energy Inc.

When Horgan announced the proposed permitting regime last year, Alberta Premier Rachel Notley accused him of breaking the rules of Confederation and announced a ban on B.C. wines, which she later reversed.

A lawyer for Alberta told the Appeal Court that the permitting scheme is a “vague, amorphous” process that gives wide-ranging discretionary powers to a government official. Peter Gall said B.C. believes the only way to protect its environment is to stop the pipeline expansion.

Trans Mountain ULC also said the legislation is targeting the project and will “directly and significantly” impact it.

Justice Harvey Groberman questioned lawyers who argued the goal of the legislation was to stop the project, asking why such a declaration was necessary if the argument that it impedes federal jurisdiction holds up.

The National Energy Board conducted a years-long review involving dozens of interveners before recommending the federal government approve the project with 157 conditions. After the Federal Court of Appeal quashed the approval last summer because the board failed to consider marine shipping impacts, the board recently looked at the topic and added another 16 conditions.

However, Arvay said the energy board has been found to do inadequate followup with companies to ensure that conditions are being met. He added that B.C.’s proposed regime and that of the NEB are “complementary and interlocking” and can be harmonious.

The government of Saskatchewan, several First Nations, Enbridge Inc., the Canadian Association of Petroleum Producers and the Railway Association of Canada also delivered arguments opposing B.C.’s proposed rules at the five-day hearing this week.

The cities of Vancouver and Burnaby, environmental group Ecojustice, the Assembly of First Nations and the Heiltsuk Nation presented cases in support of B.C., with the Indigenous groups asserting that First Nations governments have the right to make these types of rules in their communities as well.

Laura Kane, The Canadian Press

Like us on Facebook and follow us on Twitter

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Are you sending your children back to school?

The weekly web poll for the 100 Mile Free Press

Parkside Art Gallery reopens to the public on June 2

Claudia Rings raises $2,500 from mask sales for Parkside Art Gallery

Boat stolen, funds extorted from elderly neighbour

The weekly police report for the South Cariboo area

From the archives of the 100 Mile Free Press

39 YEARS AGO (1981): RCMP and Search and Rescue co-ordinator John Delves… Continue reading

Lions extend organ donation campaign

Organ donation something to consider

NDP getting COVID-19 wage subsidy ‘indirectly,’ B.C. Liberal leader says

Andrew Wilkinson says he’s heard no concerns from public

Love flourishes at Peace Arch Park, but COVID-19 concerns loom

South Surrey park becomes only place for international couples to meet

UPDATE: B.C.’s Central Kootenay issues evacuation orders for hundreds of residents due to flooding

An evacuation alert covers all areas except the Cities of Castelgar and Nelson

PHOTOS: Thousands gather at Vancouver Art Gallery to protest racism

Rally is in response to the deaths of black Americans and a Toronto woman

Number of students returning is a wild card as B.C. schools reopen Monday

A common model will see other teachers work four days a week in class then the fifth remotely,

Toronto Raptors’ Ujiri says conversations about racism can no longer be avoided

Thousands have protested Floyd’s death and repeated police killings of black men across the United States

Most Read