Both Alberta and B.C. can regulate pipelines… just not the way they want to: expert
An expert in Canadian constitutional law says both B.C. and Alberta do have the power to make laws about what goes inside pipelines… but neither can do it for political purposes.
It comes as the bitumen battle between the neighbouring provinces reaches new levels of bitterness.
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On Monday, Alberta introduced legislation that would enable it to restrict exports of oil and gas products, a move perceived by many as “turning off the taps” to B.C. In January, B.C. threatened to restrict the flow of bitumen through the Trans Mountain pipeline until more is known about how it would behave in a marine spill.
Speaking on CKNW’s The Jon McComb Show, York University associate law professor Bruce Ryder said B.C. does indeed have the constitutional jurisdiction to pass environmental laws that apply to pipelines.
That right was most recently affirmed by the B.C. Supreme Court in a case relating to the Northern Gateway Pipeline, he said.
“The court said that provincial environmental laws can apply to — that was also an inter-provincial pipeline — can impose further conditions on its construction and operation,” he said.
“But the court did note that the province can’t use environmental laws to block the pipeline.”
That last point is key, Ryder said. Any environmental regulations must be made in good faith, and B.C.’s tough talk around stopping the pipeline could land it in hot water if it tried to pass such a law, he added.
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That’s exactly the same problem Alberta Premier Rachel Notley faces with her Bill 12, the Preserving Canada’s Economic Prosperity Act, according to Ryder.
The legislation gives Alberta the power to restrict energy exports through a series of licenses — something Ryder said is well within Alberta’s constitutional jurisdiction.
However, Ryder said the law is very clear that Alberta may not specifically discriminate against another province.
Notley has said specifically that the measure isn’t to punish B.C., but has also been very public in discussing her province’s potential responses to B.C.
Ryder said Alberta could run into trouble in court over that factor.
“You know it reminds me a little bit of the legal disputes about Trump’s travel ban, where he’s — or at least his lawyers are — in court saying, ‘We’re not discriminating against Muslims,’ and Trump’s busy tweeting away, ‘Yes we are, that’s exactly what we’re doing.”
For now, both cases remain a hypothetical.
Alberta has not yet passed Bill 12, and if it does, it’s still uncertain whether the province will actually make use of it.
B.C. says it’s still finalizing a reference question for the courts about the exact limits of its provincial jurisdiction over pipeline matters, but says it should be making its formal submission some time this week.
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