Alberta fights on
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Wins right to complete Trans Mountain expansion, but revamps ‘turn-off-the-taps’
Gary Park for Petroleum News
Alberta’s right-of-center Premier Jason Kenney apparently does not believe his left-of-center neighbor, British Columba Premier John Horgan has learned a hard, costly lesson.
Either that or Kenney, leader of the United Conservative Party in his province, just wants to reinforce a high-court victory by further humbling Horgan and his New Democratic Party loyalists.
Up to this point, the spat between the two provinces over new energy pipelines has cost both sides undisclosed millions of dollars in legal fights.
The focal point of the latest showdown involved Trans Mountain’s plan to triple capacity of its pipeline system, targeting the shipment of 890,000 barrels per day of crude bitumen from the Alberta oil sands across British Columbia, with tanker exports out of Vancouver.
It was Horgan who, in his campaign to arrest climate change and protect his residents from a possible line spill, dragged Trans Mountain (owned by the Canadian government) and indirectly Alberta crude producers, through provincial and federal courts, short of seeking a hearing before the Supreme Court of Canada.
He came to the end of that road in late April when the Federal Court of Appeal ruled that Alberta had the constitutional right to control the volume and destination of its oil flowing across other provinces to domestic or overseas markets.
The ‘turn-off-the-taps’ legislation That came two years after a lower court suspended Alberta’s Preserving Canada’s Economic Prosperity Act and granted B.C. a temporary injunction blocking that act, which was labeled the “turn-off-the-taps” legislation that Alberta would have used to restrict or shut off shipments of natural gas, oil or refined fuels to destinations outside the province.
It was an act that was introduced by the Alberta government of Premier Rachel Notley, under pressure from Kenney’s United Conservative Party.
Notley’s New Democratic Party administration never formally enacted the legislation during its remaining few months in office, but Kenney, at his first cabinet meeting two years ago, proclaimed the act into law, with a sunset clause of April 30, 2021.
For most observers, the Alberta-B.C. fight seemed to be over when Horgan conceded he had used all of the tools available to him.
But Kenney seemed unwilling to accept that Horgan had waved the surrender flag.
In May, he introduced a revamped version of the legislation, excluding refined products such as gasoline and diesel in a bid to sidestep any future constitutional challenges.
Alberta Environment Minister Jason Nixon said his government wanted to have the law in place only as a last resort in any future disputes over his province’s ability to export its raw energy resources.
“Using this legislation will continue to be the final and not the first step in protesting Alberta’s interests,” he told reporters. “Like a fire extinguisher that you only use in case of an emergency.”
Constitutional issues The Alberta government argues that the Canadian Constitution gives provinces the power to export natural resources across other domestic territories.
While some take the view that jurisdictional disputes over that right have come to an end, some matters remained unresolved in British Columbia’s view.
It argued in its court filings over the original “turn-off-the-taps” legislation that the law was unconstitutional because it assumed Alberta was giving itself the right to punish another province.
University of Alberta constitutional law professor Eric Adams argued the new law remains constitutionally dubious, despite its modifications, suggesting that any future court might view Alberta’s actions as unfairly punitive.
Nixon stressed that that the amended legislation “is not just about B.C.”
In fact, he said, Alberta is encouraged by progress on the Trans Mountain expansion adding the cross-border relationship “has gone very well as of late.”
However, many have accused Kenney of engaging in showboating by extending the life of legislation they think is never likely to be used.
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