B.C. government asking courts to rule on new permitting system to restrict bitumen flow

Click to play video: 'B.C. attorney general announces reference question submitted to court'
B.C. attorney general announces reference question submitted to court
Attorney General David Eby announces the reference question being submitted to the B.C. Court of Appeal to regulate impacts of diluted bitumen in the province – Apr 26, 2018

The B.C. government is asking the B.C. Court of Appeal to determine whether it can pass legislation that would require companies to get permits from the provincial government before increasing the flow of bitumen through the province.

If the appellate court approves, the new provincial rules would derail the Trans Mountain pipeline expansion project.

LISTEN: B.C.’s pipeline dispute is finally heading to court
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“We have asked the courts to confirm B.C.’s powers within our jurisdiction, to defend B.C.’s powers within our jurisdiction, to defend B.C.’s interests, so that there is clarity for today and for the generations to come,” said B.C. Premier John Horgan.

“Our government will continue to stand up for the right to protect B.C.’s environment, economy and coast.”

Watch below: Opposition shadow minister for natural resources – and Alberta MP – Shannon Stubbs joins us from Ottawa to talk about what should be done immediately to resolve the Trans Mountain pipeline dispute.

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Conservative federal MP Shannon Stubbs on pipeline dispute

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The British Columbia government filed reference case in the Court of Appeal on Thursday. The government is asking the court to review proposed amendments to the Environmental Management Act that would give the province the power to regulate impacts of heavy oils, like bitumen, when spilled. The province is also asking the court to determine whether the effects of a spill will endanger human health, the environment or communities.

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WATCH: More video from Thursday’s press conference

“We have been clear from the outset that the appropriate way to resolve disagreements over jurisdiction is through the courts, not through threats or unlawful measures to target citizens of another province,” said Attorney General David Eby.

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“This reference question seeks to confirm the scope and extent of provincial powers to regulate environmental and economic risks related to heavy oils like diluted bitumen.”

WATCH: B.C. government wants control over oil flow

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BC government wants control over oil flow

But speaking for the Opposition BC Liberals, Mike de Jong called the reference question a sham.

“[The] transportation minister… has already conceded, in the house, in a detailed exchange, there is nothing the government can do to prevent increase shipments of bitumen by rail,” he said.

De Jong said if bitumen is dangerous by pipeline, it’s just as dangerous by rail, and just as dangerous in the amounts now not just increased amounts in the future.

The B.C. Court of Appeal will determine who will be able to speak before the court. Other provincial governments, the federal government, Kinder Morgan, other companies, First Nations and stakeholders could all be eligible to be involved in the reference case.

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LISTEN: B.C. will ask court to affirm right to control flow of heavy oils

The provincial government currently has a permitting process linked with construction, but there is no permit process in place now that would allow the province to withhold a permit because of an increase in bitumen movement through the province.

There is no timing on how long the court may take to receive submissions, schedule a hearing, then release a decision.

Kinder Morgan has imposed a May 31 deadline on the federal government to ensure that B.C. is on board with the $7.4-billion Trans Mountain pipeline expansion. The expansion would nearly triple the volume of bitumen flowing through the pipeline to Burnaby, B.C., from north of Edmonton.

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Eby says it is “highly unlikely” the court’s decision will be made before the May 31 deadline.

There are three formal questions the government has placed before the Court of Appeal regarding the draft legislation. The questions are:

  1. Is it within the legislative authority of the Legislature of British Columbia to enact legislation substantially in the form set out in the attached Appendix?
  2. If the answer to question 1 is yes, would the attached legislation be applicable to hazardous substances brought into B.C. by means of interprovincial undertakings?
  3. If the answers to questions 1 and 2 are yes, would existing federal legislation render all or part of the attached legislation inoperative?

The B.C. government decided to hire lawyer Joseph Arvay in February in the midst of the trade dispute between Alberta and British Columbia to prepare the reference case.

WATCH: Global News coverage of Trans Mountain pipeline expansion 

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The province’s decision to send the issue to the courts prompted Alberta Premier Rachel Notley to end the ban on importing B.C. wines into the province. Alberta and the federal government decided not to join the B.C. reference case.


Constitutional expert and UBC Law Professor Joel Bakan said it is unlikely this fight will end at the B.C. Court of Appeal.

“If the province loses at the Court of Appeal, they I’m sure will appeal to the Supreme Court of Canada,” he said. “If it goes the other way then I’m sure the federal government will appeal to the Supreme Court of Canada.”

Bakan also said B.C. may stumble on the third question, regarding whether existing federal legislation might top the province’s own new laws.

He said the principle of paramountcy, which dictates that in any clash between federal and provincial legislation, federal legislation prevails.

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