Martyn Brown: Whose law is really an ass in the Kinder Morgan dispute?

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      “Well, I think he’s breaking the law. I think he is doing something unconstitutional,” former B.C. Liberal premier Christy Clark said last weekend, on CTV’s Question Period

      She was referring to B.C. NDP leader John Horgan’s announced intention to consult on a proposed second phase of regulations to improve oil spill prevention, preparedness, response, and recovery.

      “What he’s doing is, he’s trying to set up a system where [the Kinder Morgan pipeline] cannot get to yes, and is deliberately frustrating it, so that the project will get cancelled. He doesn’t have the constitutional right to do that.

      “[Alberta premier] Rachel Notley, I think…is in the right in this. British Columbia doesn’t have the right. The courts have said so, the constitution says so, to stop Alberta’s oil getting to market, just because they feel like they don’t want to let it get there.”

      So sayeth B.C.’s most renowned constitutional “expert”, whose vast knowledge on the subject has no doubt got Thomas Berger, QC, OC, OBC second-guessing his legal strategy and advice, as the B.C. government’s external counsel.

      It was a charge she initially leveled the day before, at the Manning Networking Conference. A conservative lovefest, proudly sponsored by—ahem—the Canadian Association of Petroleum Producers, its “Canada’s Energy Citizens” initiative, Enbridge, Suncor, and others.

      What, if anything, those sponsors might have paid their former B.C. cheerleader-in-chief, to lure her out of her post-resignation hidey-hole and speak to that adoring crowd, is anyone’s guess.

      Perhaps she did it purely out of her love for Canada’s dysfunctional family.

      What strange frenemies the Kinder Morgan spat has made of supposed ideological opposites.

      Suddenly, it’s got that so-called “Liberal”, Clark, and Alberta’s tiniest Tory, Jason Kenney, both singing NDP premier Notley’s praises.

      It’s got Canada’s Liberal prime minister in bed with Alberta’s NDP and Conservatives alike, all beholden as they are to Big Oil—if you can believe it, in part, to fight climate change.

      Without Kinder Morgan’s Trans Mountain pipeline expansion, Justin Trudeau now tells us, there will be no national carbon tax, no $1.5-billion ocean protection strategy, and no way that Canada can meet its Paris Agreement commitment to cut our nation’s carbon emissions by 30 percent by 2030.

      Yup, he really said that. More filthy tar sands oil for a less polluted planet, please.

      Miracle workers of the world unite! You have nothing to lose but your principles, values, and ideological chains.

      But as new frenemies fall in, old friends fall out.

      The Kinder Morgan dispute has also got former BFFL’s Notley and Horgan now nipping at each other. Or more accurately, it has the former beating the royal snot out of the latter.

      It also finds Preston Manning’s beloved “Iron Lady”—former lifelong Liberal Clark—at odds with former Alberta Liberal leader Kevin Taft.

      His recent book hits her argument for Big Oil's “deep state” right where it hurts, illuminating as its central premise is, on “how the petroleum industry undermines democracy and stops action on global warming”.

      No matter. Notley’s on a roll, thanks in no small measure to the oil industry’s champions at Postmedia, the Globe and Mail, Corus Entertainment, Bell Media, Shaw Communications, and Rogers Media.

      Indeed, it is almost impossible to find a single voice in Canada’s mainstream media that isn’t smitten by the Kinder Morgan project or persuaded by Alberta’s outrageous actions to stop B.C. from trying to put new environmental obstacles in its way.

      Notley won’t be mollified by Horgan’s post-throne speech “peace offering” to ratchet down the rhetoric and avert Alberta’s escalating boycotts and bully-boy campaign to “keep Canada working”.

      She is now threatening to escalate her tactical ballistic attack on B.C. to an all-out nuclear assault if the Horgan government doesn’t tug its forelock and do as she says. It’s next week, or else, she warns.

      “Albertans are only so patient. We do have other tools at our disposal, and… you’ll be hearing more on that next week if we see no evidence of progress.”

      Will she launch her “A-bomb” on B.C.’s “B-day”, to steal the thunder from Horgan’s budget and ensure that the Kinder Morgan “distraction” dispute—as he calls it—overwhelms his good news “affordability” measures?

      Bear with me, if you dare and really care. But be forewarned, what follows is an extraordinarily long exploration of this issue.

      This dissertation is not intended for casual readers with only a passing interest in the pipeline controversy that now threatens to do so much harm. It is rather intended to put comments, quotes, and arguments on the record that I believe are material to a deeper understanding of the moral, legal, and political considerations warranting serious discussion.

      Consider it a long-winded and hopefully helpful resource to provoke new scrutiny of this inflammatory dispute that is spreading like a Deepwater Horizon oil spill.

      It is a trade war and constitutional crisis-in-the-making that is as hard to fathom or stop in its inexorable course as a heavy oil spill in the Kalamazoo River.

      Behold, Canada’s great shame: the Kinder Morgan pipeline battle for constitutional supremacy that is being waged primarily to pad the pockets of Big Oil with higher prices for its planet-choking crud.

      It promises to be the “mother of all constitutional battles”.

      One that pits provincial governments’ environmental protection rights—and Aboriginal rights and title—against the federal government’s right to ram through oil pipeline projects in the “national interest”, over the objections of the communities and people they most directly affect.

      It is a battle that is now raging as a domestic trade war of unprecedented proportions, which Notley has started and escalated, aided and abetted by the Trudeau government.

      A battle compounded by a December 7, 2017, National Energy Board ruling authorizing Kinder Morgan to bypass the City of Burnaby’s bylaws and immediately begin construction work at the company’s Burnaby and Westridge Marine terminals. A decision that the City of Burnaby and the B.C. government have now applied for leave to appeal before the Federal Court Appeal.

      It is a battle that is also being played out in the Federal Court of Appeal, with 15 consolidated cases challenging the validity of the flawed National Energy Board review process.

      Trudeau himself pledged to “redo” that process before making any decision—a promise the Liberal MP for Burnaby North-Seymour, Terry Beech, reiterated after the election.

      Instead, the prime minister relied upon that “farcical” process in approving the Kinder Morgan project, in flagrant contempt of his election promise.

      Contrary to what Notley, Clark, and their mainstream media mouthpieces for Big Oil have so wrongly and irresponsibly alleged, neither Horgan nor his government has done anything whatsoever illegal, let alone “unconstitutional”.

      Christy Clark (seen with then environment minister Mary Polak) came out in support of the Kinder Morgan's Trans Mountain Pipeline Expansion project in early 2017.

      Simple speculation draws massive Alberta response

      A bit of background about the controversy is in order for any of you readers who may not be quite up to speed on what it is all about.

      About two weeks ago, the B.C. government issued a news release announcing its intention to seek public feedback in developing new regulatory measures to better protect B.C.’s environment from oil spills.

      It hasn’t even yet tabled its “intentions paper”—scheduled for release later this month—that will provide an overview of those proposed regulations, as a basis for public engagement.

      Of the five areas identified for discussion, one has Alberta’s and Canada’s knickers in a knot.

      “The Province will create an independent scientific advisory panel to help address the scientific uncertainties outlined in the report, The Royal Society of Canada Expert Panel: The Behaviour and Environmental Impacts of Crude Oil Released into Aqueous Environments. The recommendations of the advisory panel will inform future regulatory development and approaches to spill response.

      “In order to protect B.C.’s environmental and economic interests while the advisory panel is proceeding, the Province is proposing regulatory restrictions to be placed on the increase of diluted bitumen (“dilbit”) transportation.”

      The “fire and fury” that last single bullet generated from Notley started as a tactical scud, targeting B.C.’s wine industry. It was easy enough for Horgan to ignore.

      Yet Notley’s government now threatens to go fully ballistic, with an all-out trade war that is somehow OK with the powers that be in Ottawa, and that the mainstream media lays squarely at the feet of its supposed protagonist—the Horgan government. 

      But what has the latter really done? Nothing.

      At most, it has only speculated about a possible new regulatory regime that B.C.’s premier has assured won’t be introduced while the consultation process is underway.

      Contrary to what its critics have alleged, echoed by the mainstream media, the B.C. government has not said that it plans to stop or delay the pipeline’s construction through its so-called “offending” regulatory manoeuvere.

      It has only speculated about restricting the increased transportation of diluted bitumen (heavy tar sands oil) above present volumes “until the behaviour of spilled bitumen can be better understood and there is certainty regarding the ability to adequately mitigate spills”.

      Without that added Trans Mountain pipeline capacity, which now isn’t scheduled to come online until at least 2020, any regulations that the Horgan government might adopt, to restrict increased bitumen volumes, would not necessarily stop work on the new pipeline from proceeding.

      Indeed, those regulations might only be meant to apply to any increased volumes of diluted bitumen moved through the existing pipeline, by rail, or via the province’s highway system.

      Without even seeing the government’s intentions paper, it is impossible to know how it might propose to “restrict” increased bitumen transportation, as distinct from other oil transports.

      Moreover, the word “restrict” does not necessarily imply preventing the increased transportation of heavy oil as envisioned by the Trans Mountain pipeline expansion project.

      Indeed, such restrictions might only be meant to regulate the ways in which increased bitumen volumes are permissible.

      And only then, pending the federal and provincial governments’ concurrent research processes to better understand the behaviour of spilled bitumen and to provide greater certainty regarding the ability to adequately mitigate spills.

      Those regulations could, and perhaps should, be voluntarily referred to the courts to establish their constitutional legality.

      If Alberta, the federal government, and Kinder Morgan’s shareholders are as certain about their legal position as they purport to be, they should not be skittish about that eventuality. Rather, they should welcome and insist upon it.

      If anything, it should lead to greater legal certainty on resource developments that is today sorely lacking in Canada, because of the grey areas of constitutional authority that are obviously still open questions.

      Potentially, as the Vancouver Sun’s Vaughn Palmer has observed, the province’s new regulations regarding the increase in diluted bitumen transportation might be brought in before its scientific advisory panel completes its work.

      Heavens knows, much more research is required to understand the added environmental risks posed by bitumen shipments to our terrestrial and marine ecosystems, to their dependent species, and to British Columbia’s economy, working families, brand, and global marketability.

      The unique hazards of that product identified by the National Academies of Sciences, Engineering and Medicine should surely be known and addressed.

      Not after the fact, only after that new pipeline is operating, shipping up to 890,000 barrels per day of that product from Alberta to the Pacific Ocean, up from the 300,000 barrels per day the existing pipeline already transports.

      But rather, before opening the taps to triple the volume of bitumen pouring through pipes across our environment and spilling out across the Pacific, loaded onto the backs of super tankers bound mostly for Asia.

      The time to gain that missing scientific information is now, before a major spill is unwittingly invited by virtue of that project’s associated seven-fold increase in tanker traffic.

      Surely that was the lesson of the recent Iranian oil tanker calamity in the East China Sea.

      It led to all sorts of surprises about the unique hazards of condensate spills and contamination, especially in regard to clean-up and their immediate and long-term effects on fish and other foods. To say nothing of the economic costs of that environmental disaster.

      Indigenous protests over the Kinder Morgan pipeline will make this demonstration over fish farms seem pretty tame, by comparison.
      Sea Shepherd Conservation Society

      Trudeau's plan includes "Kinder" surprises 

      A cautionary approach is the only sensible course of action in newly regulating the risk of increased diluted bitumen transportation while that scientific information is being collected. Before Kinder Morgan’s expanded pipeline ever becomes operational.

      Yet remarkably, the Trudeau government is now suggesting that its much ballyhooed $1.5-billion ocean’s protection plan is actually contingent on the Kinder Morgan project proceeding as planned.

      Which also means, so is its $80-million sub-component in “new science funding for new partnerships, improved knowledge and new technologies that will help mitigate and prevent marine incidents such as oil spills”.

      It is an appallingly coercive threat by the Trudeau government that essentially purports to hold the health of oceans hostage to the fate of the Kinder Morgan project.

      Turns out, that entire $1.5-billion plan is an exercise in deception.

      It is to be spent over five years and will only go forward, according to Trudeau, if the Trans Mountain pipeline goes forward as approved by his government.

      Ditto for his government’s national carbon pricing scheme and for its solemn commitments to cut Canada’s greenhouse gas emissions, which he now says are actually linked to the Kinder Morgan project.

      A project that would dramatically increase Canada’s GHG emissions, by some 13 to 15 megatonnes of carbon dioxide equivalent per year, according to Environment and Climate Change Canada.

      And that doesn’t even include the extra 100 million tonnes in estimated global emissions that would result as that unrefined oil is shipped and burned to power some of the world’s most polluted cities and countries. 

      That $1.5-billion plan is effectively only $300 million a year, to fund scientific research that should have been done long ago.

      It isn’t much, considering it will apply to Canada’s three oceans, three seas, and myriad bays and salt waterways.

      Only $16.8 million of that five-year funding is earmarked for understanding how oil behaves and degrades in different conditions.

      And that research will not even be conducted in British Columbia. Rather, it will be conducted in Halifax, Nova Scotia, at Canada’s Centre of Offshore Oil, Gas and Energy Research.

      Quite the “Kinder surprise” to British Columbians who might have at least hoped their province would lead that research effort.

      Hence the need for British Columbia to conduct its own scientific research, in establishing a prudent and long overdue regulatory regime to better safeguard B.C.’s environment from oil spills.

      Especially given that other whopping Kinder surprise: that Trudeau’s ocean protection plan is entirely contingent on the Kinder Morgan project.

      Whether or not that project is ever ultimately built, the Horgan government rightly determined that it needs to immediately get to work in doing the due scientific diligence that the federal government has failed to do, and now says it only will do if the new pipeline is completed.

      As it is, diluted bitumen is already making its way to tidewater through the existing Trans Mountain pipeline, and also might be moved in greater volumes by rail or other motorized forms of transport.

      It only makes sense to restrict the increased transportation of that product with reasonable added regulatory protection as the B.C. government gains the scientific knowledge that its federal counterpart now holds out to ransom.

      Hundreds of birds, including these geese, were soaked in oil when an Enbridge pipeline ruptured, spilling diluted bitumen into the Kalamazoo River in 2010.
      U.S. Fish and Wildlife Service

      If the Federal Court of Appeal finds that the National Energy Board (NEB) and/or the federal government failed in its obligations to Indigenous peoples, or to the environment, it could yet kill the Kinder Morgan project.

      If so, Trudeau’s $1.5-billion ocean protection plan would go out the window, along with his “comprehensive plan” for “sustainable development” and “climate action”.

      At least it would if that plan is all founded as Trudeau now says it “always was”, conditional on moving more of Alberta’s dirtiest oil to Pacific tidewater via a new Trans Mountain pipeline.

      It only makes sense for the B.C. government to safeguard against that risk: by engaging with its citizens, as the Horgan administration proposes; and by acquiring new scientific knowledge that can inform its strengthened regulatory regime for oil spill prevention, response, clean-up, and compensation.

      Until that knowledge is obtained, B.C. is obliged to prescribe its own restrictions on the increased transportation of “dilbit”, to the extent that those restrictions do not conflict with the federal government’s purpose, or negate its jurisdiction over interprovincial pipelines.

      Which is to say, only to the extent that the B.C. government believes its regulatory measures are constitutionally permissible, in asserting its shared jurisdiction over the environment and its exclusive jurisdiction over the powers delineated under sections 92 and 92(a) of the Constitution Act (1867).

      Others including West Coast Environmental Law have offered the Horgan government lots of legal advice, strategies, and potential tactics to legally assert its regulatory authority in ways that might pass constitutional muster.

      Notley might want to mock B.C.’s efforts in that regard, as she did on Twitter.  

      But just because she, of all people, says Horgan’s law is an ass doesn’t mean she’s right.

      Indeed, she is dead-wrong in counting her constitutional chickens before they are hatched. A point that she is apparently scared to test in court.

      Former B.C. premier Christy Clark took Alberta's side on last weekend's CTV Question Period show.

      Christy Clark laid foundation for NDP's action

      "In this country, we set rules. We set goal posts. And you can't change them halfway through," Christy Clark also chided in her CTV interview.

      That argument is compromised by the fruit of her government’s own poisonous tree, as it were.

      No, I am not referring to the evidence gathered through the federal NEB review process, which was so central to the Trudeau government’s case for approving this project.

      Though in a figurative sense, some might argue, that evidence was sought and seized through an inherently coercive process that grows more galling by the day.

      From that flawed NEB process that has been so widely assailed, to the Trudeau government’s countless “carrots” and “sticks” that it has held out ever since, the subtext is painfully clear.

      Read between the lines and you will see it silently screams at all British Columbians, get on with Kinder Morgan “or else” and “if you know what’s good for you”.

      “Make it easy on yourself,” the feds urge B.C. “It’s this or nothing” and “saying ‘no’ is a capital offence”. “Only if” you confess you were wrong, B.C., and accept your punishment, will you get the goodies that go with the sentence.

      But I digress. Back to the Clark government’s “poisonous tree”.

      I am referring to its own conduct in respect of both the now defunct Northern Gateway project and also the 37 conditions that its environmental assessment certificate imposed in conferring provincial approval for the Trans Mountain pipeline project.

      Exhibit one, your honour: the Northern Gateway project.

      The Clark government had no problem with asserting its “five requirements for B.C. to consider support for heavy oil pipelines”.

      It effectively leveraged its constitutional authority to extract environmental and economic benefits from at once rejecting that contentious pipeline and then approving the Kinder Morgan project.

      It pleaded with the Joint Review Panel to reject the unpopular Northern Gateway pipeline with this argument, which is equally applicable to the Trans Mountain pipeline project:

      “The project before the JRP is not a typical pipeline”, the B.C. government argued.

      “For example: the behavior in water of the material to be transported is incompletely understood; the terrain the pipeline would cross is not only remote, it is in many places extremely difficult to access; the impact of spills into pristine river environments would be profound.

      “In these particular and unique circumstances, [Northern Gateway] should not be granted a certificate on the basis of a promise to do more study and planning once the certificate is granted.

      “The standard in this particular case must be higher. And yet … [Northern Gateway] has not met that standard. ‘Trust me’ is not good enough in this case.”


      Yet the province then went on to issue Trans Mountain’s environmental assessment certificate on that very same basis.

      It approved that project largely on the basis of a “trust me” promise to do more study and planning about the behaviour of transported bitumen.

      Work and research that should have been done before a decision was rendered by both levels of government.

      Scientific information that is lacking and that is critically needed in properly regulating any proposed increase in the transportation of diluted bitumen in British Columbia.

      That is the flaw that the Horgan government aims to correct with its proposed new regulations.

      Because “trust me” isn’t good enough.

      Not for Northern Gateway. Not for the Kinder Morgan project.

      Not for the increased flow of that hazardous product across our province via any means of transportation, including pipelines. Not for the increased volumes of that dirty, heavy, incredibly sticky oil, that the federal government hopes to ship from the Burrard Inlet across the Salish Sea to world markets.

      Our governments owe it to all Canadians, and especially to B.C. residents, to get that scientific knowledge first.

      They owe it to B.C.’s citizens to consult them in developing an appropriate regulatory regime governing the transportation of bitumen that is not in place today. Prior to accepting any increases in the transportation of diluted bitumen across B.C.’s land and water that would compound existing risks of heavy oil spills.

      Moreover, the B.C. government is actually obliged to consult and accommodate First Nations in acquiring that scientific knowledge, and in developing that new regulatory framework, as matters of provincial jurisdiction and constitutional necessity.

      Not by saying “trust me”, as the federal government proposes, but by restricting the increase of bitumen transportation until that knowledge is gained and that consultative work is done.

      The Northern Gateway project was ultimately rejected by the Trudeau government after the Federal Court of Appeal quashed the Harper government’s order in council that would have allowed that project to proceed.

      Happily, the court found that the government had failed to properly consult Aboriginal peoples or adequately consider their constitutional rights.

      It remains to be seen whether the Trudeau government will suffer the same verdict in respect of the Kinder Morgan project, whenever the Federal Court of Appeal issues its judgment on that issue in respect of the NEB process.

      Research suggests there's a 24 to 50 percent risk of Salish Sea southern resident orcas going extinct this century, according to the David Suzuki Foundation.

      Don't forget Northern Gateway ruling  

      You want a wild card, Notley and Trudeau? How about this.

      What if the Horgan government’s proposed new regulatory restrictions on increased bitumen transportation envisioned a fundamentally new role for impacted First Nations, aimed at honouring its commitment to the United Nations Declaration on the Rights of Indigenous Peoples?

      One that viewed environmental protection of B.C.s’ sensitive land and marine ecosystems through that document’s lens of “free, prior and informed consent”?

      One that gave real immediate teeth to the Trudeau government’s supposed new commitment to accepting the existence of Indigenous people’s asserted constitutional rights as a starting point for any government decisions, actions or negotiations?

      Without requiring them to first prove their claims in court. And without them having to wait years and years to realize that new basis for reconciliation in respect of pipelines and bitumen shipments.

      What if Horgan’s proposed regulations established a new co-managed environmental stewardship regime with Aboriginal people?

      To advance real reconciliation and to honour B.C.’s constitutional obligations to consult and accommodate their rights and title as necessary with new governance in regulating diluted bitumen.

      To respect and protect Indigenous people’s section 25 and section 35 charter rights that might be seriously and permanently impacted by those shipments and spills.

      To affirm and safeguard Aboriginal title rights in respect of pipelines that traverse First Nations’ traditional territories—some of which are now subject to negotiation under the B.C. treaty process.

      That new regulatory regime would sure put a whole, new constitutional wrinkle on B.C.’s efforts to exercise its shared responsibility for environmental protection.

      It would sure create some interesting immediate challenges for the federal government—and also for Alberta and other provinces—in managing their own fiduciary and constitutional obligations to Indigenous peoples.

      How might the courts weigh those overlapping constitutional goals and obligations in deciding whether any provincial regulations enacted in those respects are consistent with the federal government’s constitutional responsibilities, purposes, and actions?

      Notley and Trudeau should perhaps read what the Supreme Court of British Columbia said in its January 16, 2016 ruling on the Coastal First Nations’ successful challenge of the Northern Gateway environmental review process.

      It ruled that the B.C. government breached its duty to consult and accommodate in respect of impacted rights and title.

      The Clark government might think it remedied that fault in respect of its consultation efforts on the Kinder Morgan project. But whether that proves to be so or not, it does not diminish the province’s authority or obviate its responsibility for doing more, to properly consult and regulate environmental protection in regard to the transportation of heavy oil within B.C.

      The issue is not whether that can be done, but rather how that must be done in a way that is constitutionally sound and defensible.

      This is what the Supreme Court said in its Northern Gateway judgement:

      “This Project is clearly distinguishable from past division of powers jurisprudence dealing with aviation or telecommunications; the proposed Project, while interprovincial, is not national and it disproportionately impacts the interests of British Columbians. 

      “To disallow any provincial environmental regulation over the Project because it engages a federal undertaking would significantly limit the Province's ability to protect social, cultural and economic interests in its lands and waters. It would also go against the current trend in the jurisprudence favouring, where possible, co-operative federalism.”

      Justice M. Marvyn Koenigsberg went on to say this:

      “While I agree that the Province cannot go so far as to refuse to issue an [Environmental Assessment Certificate] and attempt to block the Project from proceeding, I do not agree with the extreme position of [Northern Gateway (NGP)] that this invalidates the EAA as it applies to the Project.

      “The Province has a constitutional right to regulate territorial environmental impacts. Since it is established law that regulation of the environment is shared jurisdiction among all levels of government, it flows logically that the EAA, whose purpose is to regulate environmental concerns in British Columbia while advancing economic investment in the Province, is valid legislation, even where it applies to an interprovincial undertaking.

      “The fact that … the EAA affects a federal undertaking is not enough to demonstrate that the provision is unconstitutional; NGP must establish that the legislation's effects on federal powers render it inapplicable or inoperable. To establish inter-jurisdictional immunity, NGP must prove that the 'core' of a federal legislative power has been 'impaired' by the provincial enactment. 

      “To make out the doctrine of paramountcy the respondents must show either a conflict between the provincial and federal legislation such that ‘compliance with one is defiance of the other’, or, if dual compliance is possible, that provincial legislation frustrates the purpose of the federal statute.

      “The mere existence of a condition does not amount to a prohibition. The conditions placed on the Project by the NEB are imposed in accordance with environmental protection legislation in an effort to balance the economic interests of the Project with important environmental protection concerns. Further conditions imposed by the Province that seek to advance environmental protection interests would therefore fall squarely in line with the purpose of federal environmental protection legislation governing the Project.

      “This is not to say that any or all conditions would be permissible. This is just to say that on its face there are no obvious problems with the imposition of provincial environmental protection conditions...While the federal law says ‘yes with conditions’, the provincial law, if conditions were issued, could also say ‘yes, with further conditions’.

      “Therefore, no further finding can be made unless and until specific conditions are imposed. The questions of ‘impairment’ in the case of inter-jurisdictional immunity and ‘operational conflict’ in the case of paramountcy cannot be effectively answered without an examination of any specific conditions imposed by the Province under…the EAA.

      “Given that the dominant purpose of the EAA is regulation of the environment within British Columbia…the statute represents a valid exercise of provincial power even inasmuch as it may affect certain aspects of an interprovincial pipeline.”

      So it is with the province’s stated intent to exercise its authority for protecting B.C.’s environment by regulating the transportation of bitumen.

      Until it establishes those regulations in law, it is impossible for anyone—including Notley, Trudeau or Clark—to know if they are “illegal” or “unconstitutional”.

      The province has every right and arguably a constitutional obligation to act as it is proposing to do in the interests of its citizens and First Peoples. Provided its new regulatory regime respecting the transportation of bitumen and its associated environmental safeguards for spill prevention, response planning, remediation, and compensation are consistent with the jurisprudence governing constitutional overlaps.

      A key case in that regard was the Supreme Court of Canada’s 2015 judgment on Alberta (Attorney General) v. Moloney.

      Ironic, considering it found that the Alberta government had exceeded its constitutional authority, in trying to effectively usurp the federal government’s exclusive authority over bankruptcy and insolvency.

      Courts have addressed overlapping jurisdiction

      Now Alberta wants to give British Columbia lectures about impinging on federal jurisdiction. Hypocrites.

      Perhaps Notley should read what Canada’s highest court said in that case about the doctrine of federal paramountcy, in regard to overlapping provincial and federal laws that come into conflict with one another.

      The court said this:

      “[That] doctrine ‘recognizes that where laws of the federal and provincial levels come into conflict, there must be a rule to resolve the impasse’ … When there is a genuine ‘inconsistency’ between federal and provincial legislation, that is, when ‘the operational effects of provincial legislation are incompatible with federal legislation’, the federal law prevails ... The question thus becomes how to determine whether such a conflict exists.

      “First and foremost, it is necessary to ensure that the overlapping federal and provincial laws are independently valid … This means determining the pith and substance of the impugned provisions by looking at their purpose and effect…

      “Once a provision’s true purpose is identified, its validity will depend on whether it falls within the powers of the enacting government ... If the legislation of one level of government is invalid, no conflict can ever arise, which puts an end to the inquiry. If both laws are independently valid, however, the court must determine whether their concurrent operation results in a conflict.

      “A conflict is said to arise in one of two situations, which form the two branches of the paramountcy test: (1) there is an operational conflict because it is impossible to comply with both laws, or (2) although it is possible to comply with both laws, the operation of the provincial law frustrates the purpose of the federal enactment.

      “What is considered to be the first branch of the test was described as follows in Multiple Access, the seminal decision of the Court on this issue:

      "In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says 'yes' and the other says 'no'; 'the same citizens are being told to do inconsistent things'; compliance with one is defiance of the other.

      “…the burden of proof rests on the party alleging the conflict. Discharging that burden is not an easy task, and the standard is always high. In keeping with co-operative federalism, the doctrine of paramountcy is applied with restraint. It is presumed that Parliament intends its laws to co-exist with provincial laws. 

      “Absent a genuine inconsistency, courts will favour an interpretation of the federal legislation that allows the concurrent operation of both laws … Conflict must be defined narrowly, so that each level of government may act as freely as possible within its respective sphere of authority.

      “In sum, if the operation of the provincial law has the effect of making it impossible to comply with the federal law, or if it is technically possible to comply with both laws, but the operation of the provincial law still has the effect of frustrating Parliament’s purpose, there is a conflict. 

      “Such a conflict results in the provincial law being inoperative, but only to the extent of the conflict with the federal law … In practice, this means that the provincial law remains valid, but will be read down so as to not conflict with the federal law, though only for as long as the conflict exists.”

      It seems entirely possible that the B.C. government could enact legally valid new regulatory measures governing environmental protection in respect of increased bitumen transportation that do not actually frustrate Canada’s purpose in approving the Trans Mountain pipeline, per se.

      The latter’s purpose is ostensibly to build a pipeline that anticipates moving greater volumes of diluted bitumen and other oil to Pacific tidewater, for export to other countries.

      Much as I strongly oppose that proposed pipeline and hope to stop it, the B.C. government cannot use its regulatory powers to overtly frustrate the federal government’s purpose.

      It can, however, put new measures in place that Kinder Morgan’s shareholders might feel are indirectly aimed at the same end, as long as they are constitutionally defensible.

      That might well be done in a way that “restricts” (i.e. not “prevents”) the increased flow of that diluted tar sands oil with new regulatory requirements: for better protection against spills, for appropriate spill response and planning, for enhanced clean-up capacity, and for better remediation and compensation.

      Those goals and objectives do not necessarily contradict the federal government’s purpose in approving the project by effectively saying “no” to its “yes”.

      The new environmental regulations the province proposes might be more onerous than the ones mandated by the federal government and anticipated in its attached conditions for building that project.

      What is important is that the province’s regime does not effectively negate the federal government’s regime, or supersede its intent.

      As I suggested above, the province’s new restrictions might also anticipate new obligations in respect of the province’s application of the UNDRIP’s commitment to the doctrine of “free, prior and informed consent”, in advancing reconciliation with Aboriginal peoples.

      That constitutional overlap may also come into play in determining whether B.C.’s actions are independently valid and are operationally compatible with the federal government’s purpose in respect of its goal of fostering reconciliation with Canada’s Indigenous peoples.

      Indeed, those provincial regulatory restrictions might well be framed to not only comply with federal laws, but to also support Canada’s ostensible purpose in approving the Trans Mountain pipeline in a manner that is inherently consistent with its constitutional obligations to Indigenous Canadians.

      Bottom line is, until those regulations are developed—and tested in court, if need be—their legality and constitutional validity are at best an open question.

      Essentially, Notley and Trudeau are suggesting that B.C. should be precluded from passing laws and regulations that they fear might unduly intrude on federal jurisdiction and that they assume are unlawful.

      And worse, that it is somehow OK to use illegal trade sanctions to frustrate B.C.’s purposes in asserting its rightful jurisdiction, even before those regulations have even been developed, let alone codified or negated in court.

      The law is an ass if it can be so easily frustrated and compromised by such unlawful trade sanctions aimed at preventing duly elected governments from enacting new measures to protect its people and environment, even if they do test the limits of provincial constitutional authority.

      Intense opposition to Kinder Morgan's plans has come from residents of Burnaby, where new pipeline infrastructure is slated to go through some heavily populated areas.
      Stephen Hui

      Clark government's conditions called for a report 

      Exhibit two: the Kinder Morgan project.

      Clark’s contention that the rules of engagement and goalposts can’t be altered “halfway through” are defied as well by her own government’s actions on that project.

      As the Calgary Herald’s resident dean of oily politics, Don Braid, opined, “That’s a bit rich from Clark, who moved the goalpost herself in the deal signed with Kinder Morgan on April 6, 2017.”

      Be that as it may, the project’s environmental assessment certificate issued by the Clark government arguably provides ample room for the Horgan administration to reconcile its announced intentions in respect of bitumen research and transportation.

      That government attached 37 conditions for approval of the Trans Mountain pipeline project, some of which may also be relevant to the Horgan administration’s intent to newly regulate bitumen transportation.

      Condition #35 deals with the “Fate and Behaviour of Bitumen Research”.

      It specifies the following:

      “The Holder [i.e. Trans Mountain] must provide a report regarding the current and future research programs that [it] is leading, jointly leading, supporting, or otherwise involved in regarding the behaviour and recovery of heavy oils spilled in freshwater and marine aquatic environments, including research programs having the objective of providing spill responders with improved information on how to effectively respond to spills.

      “The report must be developed in consultation with the MOE, MNGD, OGC, ECCC, Canadian Coast Guard and Aboriginal Groups.

      “The Holder must provide the report to EAO, MOE, MNGD, OGC, ECCC, Canadian Coast Guard and Aboriginal Groups prior to the commencement of Operations, and must provide progress updates … at both one year and five years after commencement of Operations. EAO may amend these timelines and may request additional reports at any time by providing written notice to the Holder.” [Emphasis added.]

      The Horgan government’s new regulations might well direct how that condition is to be met and conducted. Potentially, with amended timelines and additional reports that do not in themselves frustrate the pipeline’s construction or the federal government’s purpose.

      The government’s consultation process and scientific advisory panel process might be integrally linked to the development of that required report.

      It might be central to any “restrictions” that are placed on the increased transportation of bitumen pending its completion and acceptance by B.C. government, including through such new processes with First Nations as I speculated about above.

      Condition #1 of that certificate further says this:

      “If EAO advises … that changes are required to a plan, program, or other document, then the Holder must follow the instructions of EAO in that regard.

      “The … EAO may require the Holder to, revise any plan, program or other document if the Holder or EAO determines that the implementation of the plan, program or other document is not:

      1. a)  Meeting one or more objectives of the plan, program or other document set out in the relevant condition of this Certificate;
      2. b)  Having the effects contemplated or intended, as set out in the plan, program or other document itself;
      3. c)  Consistent with the Certificate; or
      4. d)  Consistent with changes in industry best practices or technology. [Emphasis added.]

      That condition and others offer the government plenty of room to research and regulate as it is proposing in respect of bitumen, as an integral component of also facilitating Trans Mountain’s environmental assessment certificate.

      Might that cause delays? Might that impose new obligations on Kinder Morgan?

      Might that make it more difficult for the project’s report and plan to satisfy the province’s regulations to safeguard against bitumen spills?

      They may well.

      But that does not mean those regulations or requirements in meeting the certificate’s conditions are illegal or unconstitutional.

      It is not the province’s duty or job to expedite that project’s development. Nor is it the province’s duty to fast-track research and reports that are required as conditions for that project’s operation.

      Notley may not be concerned about the other four points in the government’s announced regulatory review and consultation process. But I suggest that they, too, may well prove to be material in how they interact with or directly impact Trans Mountain’s obligations to meet the conditions of its environmental assessment certificate.

      Thank you, Christy Clark.

      Your government provided yet another important avenue for the Horgan administration to legally advance its stated objectives in potentially regulating and restricting the increased transportation of bitumen in B.C.

      The Trudeau government refuses to rule out dispatching soldiers to quell future pipeline protests in B.C.

      What role might Canadian Armed Forces play?

      In any case, at this point, the B.C. government has done nothing whatsoever to warrant the very hurtful and unlawfully retaliatory trade response that the Alberta government has initiated with the Trudeau government’s active blessing.

      On Monday, the federal natural resources minister, Jim Carr, was forced to acknowledge that “all British Columbia has tangibly done at this point is signal its intention to consult with the people of its province.”

      Quite so. But he nevertheless felt obliged to send this warning in the same breath:

      "What we have clearly said is that the federal government holds authority over the pipeline and we will clearly not entertain non-jurisdictional delays intended to stall or stop the project. That is simply not an option," Carr said in Parliament.

      "If that is the goal of any province, we will take the necessary action to ensure that federally approved resource projects proceed."

      And what, exactly, might that “necessary action” entail?

      New laws and/or legal action?

      Some other punitive measures? Perhaps weaponizing the big stick of federal funding?

      Or maybe sending in the army to “secure” the 1,150-kilometre route of that proposed project that Grand Chief Stewart Philip has vowed “will never see the light of day”?

      That should be everyone’s worst nightmare. It is mine. Yet it seems more plausible now than ever.

      Worse yet, the Trudeau government has refused to rule out the use of military force to ram through that project. It refused to slam the door on that unthinkable option in answer to the challenge put to Carr in Parliament by Burnaby South MP Kennedy Stewart.

      Regardless of what Horgan does in respect of any new regulatory measures, Trudeau’s vow that “that pipeline will get built” and his ministers’ tough talk is only amping up resistance that seems destined to provoke new acts of civil disobedience.

      They won’t be easily countered by Ottawa. And I don’t think that the Trudeau government, Notley government, Kinder Morgan’s shareholders, or most Canadians have the faintest clue about the level of conflict they are inviting and seemingly hell-bent on creating.

      At this point, the Trudeau government seems fixated on reassuring Big Oil that nothing, but nothing, will stand in the way of its cherished pipeline to “liberate” higher prices and richer profits.

      And what of Alberta’s full-blown illegal trade war with B.C.?

      Canada takes no position on that.

      Apparently, Ottawa has no issue with Alberta’s bully-boy efforts to prevent the B.C. government from even consulting its citizens on an initiative that Notley has tarred as “unconstitutional” and worthy of a trade tantrum.

      All because of a single bullet in a single news release.

      By its silence about that patent attack on the national interest, the Trudeau government is effectively condoning it.

      Worse, it is now threatening B.C. with new unspecified sanctions, in meek deference to Alberta’s overt threats and material breaches of the New West Partnership, the Trade, Investment and Labour Mobility Agreement, and likely also international trade law.

      Oh, Canada. Your law is an ass, in Trudeau’s incompetent hands.

      What ass-of-a-law is this that allows the federal government to sanction one province for even consulting with its citizens on ways to defend its shared constitutional responsibility for the environment?

      That also allows the federal government to turn a blind eye to the only province that is actually breaking the law. So as to prevent its perceived “antagonist” from even entertaining such public engagement, or from upholding its rights and interests in court?

      This was how Notley’s twisted take on the law that she now holds out in defending her government’s outrageous trade attack, as expressed in an interview with Terry Milewski on CBC’s Power and Politics:

      “If the government of B.C. can threaten, regularly, to engage in behaviour that is clearly outside the rule of law, such that we have to run off to court, over and over and over again to remind them that what they are doing is outside the law, then it creates uncertainty and it creates delay. And it amounts to a form of government harassment of a project in order to effectively undermine the authority of the federal government to make the decision that it did.

      “He [Horgan] can say what he wants, he can pass regulations. And then we are forced to go to court in order to have that declared illegal. And that whole process creates uncertainty and it creates delay and it slows down the process. And so, that is what we cannot have…we can’t be doing a revolving door through the courts, constantly having to remind people what their rights are, what their obligations are. That is a form of harassment. And that’s the kind of thing that we can’t allow to kill this project.”

      “I believe that the B.C. NDP can represent their folks—including those who are opposed to the pipeline—by objecting to the pipeline, within the rule of law. Not by flagrantly thumbing their nose at it...”

      Say, what?

      Because she doesn’t want B.C. to do anything that might create investor uncertainty, delay, or slow down the project, she thinks it’s OK to launch illegal trade actions aimed at stopping B.C. from consulting with its citizens about even contemplating strengthened regulations in an area of shared constitutional jurisdiction?

      Because she doesn’t want to have to prove in court that any potential future regulations that B.C. may adopt are necessarily “unconstitutional”, as she asserts, she thinks it is OK to start trade wars aimed at precluding B.C. from developing those regulations in the first place?

      Apparently, she thinks that B.C. should not even be allowed to test in court the constitutional limits of any future regulatory initiatives that it may wish to adopt, judicial due process be damned.


      Wow. Just wow.

      As if consulting with British Columbians about environmental regulations potentially restricting any increase in diluted bitumen transported across its land is somehow akin to pretending B.C. is a “separate country”.

      As if purporting to consider legal ways for potentially strengthening regulatory protection in an area of shared constitutional jurisdiction is somehow tantamount to actually passing laws “with no regard for the constitution or the views and rights of other Canadians”.

      As if escalating clearly hurtful and unlawful trade attacks specifically aimed at influencing and diminishing the views and rights of Canadians, including British Columbians, is in any sense an appropriate means to achieve Big Oil’s desired ends.

      As if an intention to create a legal framework that may or may not prove to be constitutionally valid is itself a crime. One that warrants a punitive and illegal trade response, to prevent it from ever being set out in law and perhaps tested in court.

      It is the Notley government’s bizarre view of Canada’s highest law that is the real ass.

      It is really aimed at denying new laws or regulations and at preventing even the prospect of testing those legal instruments in court.

      All to expedite Alberta’s wish to get its filthiest product in greater volumes to Pacific tidewater, to soothe nervous investors, and to score cheap political points at the expense of national unity.

      Yet Canada’s prime minister says nothing about that.

      He only amplifies Alberta’s specious argument by lending currency to Notley’s threats. And by now backing her government’s active trade assault against B.C.’s innocent businesses and citizens.

      His nose is now so far up Big Oil’s ass that he is openly accusing Horgan “of ‘trying to scuttle’ Canada's national plan on fighting climate change”.

      “By blocking the Kinder Morgan pipeline, he’s putting at risk the entire national climate change plan, because Alberta will not be able to stay on if the Kinder Morgan pipeline plan doesn’t go through,” Trudeau told the National Observer.

      How far we have drifted under his shaky leadership from his father’s ideal of a “just society”.

      A society predicated, above all, on the rule of law. A society that ensures the courts—not politicians—ultimately interpret what is and is not constitutional.

      B.C. premier John Horgan has turned the other cheek to Rachel Notley's attacks, but that position won't remain tenable if she adds more provocations this week.

      John Horgan must stand up for B.C.

      If that wasn’t hard enough to swallow, Notley doubled down on her attack this week.

      “…if B.C. continues to insist they have rights to attack Alberta’s economy, which they don’t have, we will have no choice but to respond,” she threatened on Twitter.

      The premier of the only province that is now breaking any law went further, in other media appearances.

      She said that Horgan & Co. can either follow the law, "or they can dig in their heels and pretend they are a separate country with powers to make whatever laws they want, with no regard for the constitution or the views and rights of other Canadians.

      “It’s in British Columbia’s power to put this issue to rest,” she stressed, effectively demanding Horgan reward her government’s unconscionable trade sanctions by abdicating his responsibility to protect B.C.’s environment from bitumen spills.

      Notley further placed the blame for failing to resolve the dispute—that her government intensified—squarely at the feet of the federal government.

      "When I say we're going to give them a little bit of space, we're talking days, not much more than that," she said.

      So far, Notley has been handily beating the crap out of Horgan.

      He still looks shell-shocked from the force and velocity of her government’s economic and public relations assault.

      He is rapidly running out of other cheeks to turn.

      Sooner or later, he will be obliged to respond: legally, politically, and perhaps in kind.

      B.C. can ill afford to sit idly by while Alberta wages war on its economy with measures that will inevitably really start to hurt.

      Laying down and wishing an assault away is never a wise response to a bully.

      Especially when that individual is being cheered on by the media to lash out even harder in “retaliation” for a first strike that was never committed by the party now crumpled over in suspended disbelief and denial.

      Does Horgan have an end game, or a strategy to respond as need be? Beats me.

      I can only hope he won’t “turtle” in trying not to “be distracted” by the trade war that Notley’s government is illegally waging against B.C., openly supported by the Trudeau government.

      Time to buck up, Premier Horgan. Fast.

      Just because you are right in what you are doing doesn’t mean you will win the fight.

      Your government needs to get some serious professional help, but quick, just as Notley has done with her new “blue-ribbon” advisory group.

      In a word, your government needs to grow a pair, and fight back. With a tactical response that gives all British Columbians more confidence in its capacity to push back and come out on top.

      It needs to lay out its constitutional arguments for its actions, to expedite the release of its “intentions paper”, and to demonstrate in no uncertain terms for all Canadians that its understanding and use of the law is not an ass.

      It needs to do that with a clear, winning strategy, which is so crucial for maintaining and building public support.

      And it needs to do that without giving an inch on its laudable initiative to better protect B.C.’s environment and people from the Trudeau and Notley governments’ reckless devotion to Big Oil.

      Martyn Brown was former B.C. premier Gordon Campbell’s long-serving chief of staff, the top strategic adviser to three provincial party leaders, and a former deputy minister of tourism, trade, and investment. He also served as the B.C. Liberals' public campaign director in 2001, 2005, and 2009, and in addition to his other extensive campaign experience, he was the principal author of four election platforms. Contact him via email at