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)

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

Flight with COVID
Another Kelowna flight with COVID-19 exposure

Westjet flight on April 5 from Kelowna to Edmonton

Lori Jantz snapped this picture of a fight between a bald eagle and an osprey above Osoyoos Lake on Friday. (Lori Jantz photo)
Battle in the sky erupts above South Okanagan lake

Bald eagle and osprey fight mid-air in Osoyoos

This illustration provided by the Centers for Disease Control and Prevention in January 2020 shows the 2019 Novel Coronavirus.[CDC]
More COVID-19 exposures reported at schools in Kelowna

Interior Health added additional schools and dates to their list of exposures

Royal LePage Arena was an addition to West Kelowna championed by Len Novakowski. (File photo)
West Kelowna community leader Novakowski dies

Former Westside regional district director Len Novakowski dies after lengthy health battle

B.C. Health Minister Adrian Dix and Premier John Horgan describe vaccine rollout at the legislature, March 29, 2021. (B.C. government)
1,262 more COVID-19 infections in B.C. Friday, 9,574 active cases

Province’s mass vaccination reaches one million people

A second case of COVID-19 has been confirmed at Vernon’s BX Elementary School. (Kerry Hutter photo)
Second COVID case confirmed at Okanagan elementary school

Exposure at Vernon’s BX Elementary happened April 6 and 7

People walk past the Olympic rings in Whistler, B.C., Friday, May 15, 2020. Whistler which is a travel destination for tourists around the world is seeing the effects of travel bans due to COVID-19. THE CANADIAN PRESS/Jonathan Hayward
Adults living, working in Whistler, B.C., eligible for COVID-19 vaccine on Monday

The move comes as the province deals with a rush of COVID-19 and variant cases in the community

RCMP crest. (Black Press Media files)
UPDATE: RCMP investigating after child, 6, dies at motel in Duncan, B.C.

The BC Coroners Service is conducting its own investigation into the circumstances around the child’s death

Highway 97 being converted to four lanes in April 1990. This photo taken in Lake Country. (Greater Vernon Museum and Archives Photo #14025)
HISTORY: How the old Highway 97 in Lake Country got new name

Pelmewash Parkway recognizes the First Nations history in Lake Country

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

RCMP display some of the fish seized from three suspects who pleaded guilty to violating the Fisheries Act in 2019, in this undated handout photo. THE CANADIAN PRESS/HO - RCMP
3 banned from fishing, holding licences after overfishing violations near Vancouver Island

Mounties seized the group’s 30-foot fishing vessel and all equipment on board at the time

Most Read