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BC out of tools
Government of Premier John Horgan loses final court battle to prevent TMX expansion Gary Park for Petroleum News
When John Horgan was elected premier of British Columbia less than three years ago, he boasted that his government would use every tool at its disposal to stop expansion of the Trans Mountain pipeline.
The nine judges of the Supreme Court of Canada acted with dazzling speed on Jan. 16 when they delivered a unanimous verdict that emptied out the administration’s once touted toolbox.
They stunned court observers by taking less than 30 minutes to reach a decision, dismissing the B.C. government’s bid to regulate the flow of Alberta heavy crude across its territory to an export terminal in Vancouver.
In effect it upheld Canada’s Constitution that gives the federal government and its regulatory agency the power to control the movement of natural resources across inter-provincial borders.
Justice Malcolm Rowe noted that the B.C. New Democratic Party government made it clear before the 2017 provincial election that it was committed to stopping the Trans Mountain expansion, TMX, to 890,000 barrels per day from its current 300,000 bpd.
“Because that’s what they said they were going to do, I believe them,” he said as Canada’s top court endorsed a B.C. Court of Appeal ruling last May which said the province could not impose restrictions on the pipeline’s contents.
Environmental concerns Horgan said in a statement that his government was “clearly disappointed by the decision, but this does not reduce our concerns regarding the potential of a catastrophic (bitumen) spills on our coast.”
B.C. Attorney General David Eby echoed Horgan’s pledge to fight to protect the B.C. environment.
“It’s important to remember this was one of a suite of regulations the province put in place around toxic substances that can be brought into our province by train or pipeline or truck,” he said, without being more specific.
However, Eby said his government had no plans to join Indigenous communities in a legal challenge claiming that First Nations have not been properly consulted by the Canadian government, which owns the Trans Mountain system and expansion project.
Andrew Wilkinson, leader of the Liberal opposition in B.C., said Horgan “knew the federal government held clear jurisdiction over the pipeline but he spent millions of dollars just in political posturing. When will the NDP stop the political games and let British Columbians get to work on a project supported by the majority of people in our province?”
He demanded to know much was spent on waging the legal fight, but Eby, who put the cost at C$1 million by last March 31, said the bills were a fraction of those the province would face in the event of a TMX spill.
Clearing the way Alberta Premier Jason Kenney and Canada’s Natural Resources Minister Seamus O’Regan said the Supreme Court ruling clears the path for completion of TMX by late 2022.
Tim McMillan, president of the Canadian Association of Petroleum Producers, said it was time for Canadians to “unite behind this nation-building project (so that they can) benefit from selling our responsibly produced products to global markets.”
Alberta Energy Minister Sonya Savage delivered a thinly disguised shot at B.C., saying the court decision was a “real slap-down of one province that was trying to block a project that has been determined to be in the national interest. It was a clear and decisive decision that sets out a clear message to all governments that they need to stay in their lane.”
TMX attorney Maureen Killoran told the Supreme Court that it was time to “restore certainty” to a project that had faced years of opposition and obstruction which forced the original owner Kinder Morgan to sell the Trans Mountain assets to the Canadian government for C$4.5 billion in 2018.
One of three hurdles The court has removed one of three hurdles standing in the way of the government selling the project to bidders from three First Nations organizations, giving them a chance to reap economic benefits from the pipeline.
But a spokesman for Finance Minister Bill Morneau said the government will remain the sole owner of the pipeline as long as any risk remains to completion of the expansion.
“We have been clear, however, that it is not our intention to be long-term owners of the project,” he said.
Until two court challenges - one claiming inadequate consultation with Indigenous communities and one examining the impact of TMX on marine life off the B.C. coast - have been dealt with the government said it would not officially accept any offers.
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