B.C. turns to courts to regulate diluted bitumen from Alberta

The B.C. government is asking the courts to decide whether the province can legally regulate the transportation of hazardous substances like diluted bitumen through the province.

This legal reference, referred to B.C.’s Court of Appeal today, is the latest action in the dispute between B.C. and Alberta about the $7.4-billion Kinder Morgan Trans Mountain pipeline, which is expected to triple the flow of heavy oil from Alberta to B.C. and create a seven-fold increase in tanker traffic.

Both sides claimed today that the economy and jobs are at stake, no matter which way the conflict is resolved.

Kinder Morgan has threatened to abandon the pipeline project by May 31 if stakeholders cannot resolve the concerns in B.C. Alberta and the federal government have said they may invest in or financially back the pipeline.

B.C. wants to change the Environmental Management Act, to regulate any additional liquid petroleum transportation through B.C. by pipeline, rail or truck. This way, B.C. could require permits and limit the amount of additional petroleum products transported through the province. The proposed changes do not address tanker traffic.

“Our actions are aimed at taking certainty over our rights and obligations to control substances coming into the province that could potentially cause devastating environmental and economic harm if they are spilled,” B.C. Attorney General David Eby said at a news conference. “We believe B.C. has the legal authority to regulate the movement of such substances through the province by permit. This is a question that deserves an answer and certainty.”

The legal reference asks the court to decide three questions: does the province have the jurisdiction to enact the new rules, would the new rules apply if the substances are brought into the province by an inter-provincial pipeline, and would any federal legislation overrule the proposed law.

B.C.'s jurisdiction over environmental protection

Premier John Horgan said he believes the province has jurisdiction over environmental protection, including protecting the province against a diluted bitumen spill.

“We have a responsibility, in my opinion, to do our best to protect this place that is so important to all of us, to protect the environment that means so much to our economy – tens of thousands of jobs and billions of dollars of GDP depend on a clean and pristine environment,” Horgan said. “My government stands ready to defend that coast and to defend those interests and that’s the intent of the reference today.”

Alberta Premier Rachel Notley said Alberta will apply to be a party to the case to oppose B.C.’s position.

“We will aggressively stand up for Alberta and frankly for Canada’s economic interests,” Notley said in a news conference. “The powers that they are seeking through this court reference are a recipe for economic gridlock. That’s the bottom line and that is why I’m confident – at the end of the day – that this application will be dismissed by the court.”

Notley said if B.C. is granted the power to regulate and restrict the increased flow of bitumen based on environmental concerns, that power would be extended to all provinces. She said B.C. exports like natural gas or coal could be affected.

“It’s not good for Canadian jobs, Canadian industry, or our economic union,” Notley said. “It’s frankly not good for the country.

“B.C. wants the power to unilaterally throttle our resources and hurt the Canadian economy. I would suggest they should be very careful of what they ask for.”

Notley said talks with the federal government are ongoing.

“I am pleased with the progress we are making, working with the federal government, very rigorously right now, to de-risk the project from all of this uncertainly and legal silliness, assert federal jurisdiction and begin construction,” Notley said, adding if the provinces can’t agree, the country could become “10 competing jurisdictions at war with each other over inter-provincial trade.”

If those talks are not successful, the Alberta ban on B.C. wine or other measures could be back on the table by the end of May, Notley said.

Horgan: "I don't work for Kinder Morgan."

It is “highly unlikely” the court could decide on the case before Kinder Morgan’s May 31 deadline, Eby said. First, the court must give notice to the federal government and other interested parties of the case. Time would pass before a hearing is scheduled and held, let alone before a decision is reached.

“I don’t work for Kinder Morgan. I work for the people of British Columbia,” Horgan said. “We have set ourselves on a course to protect and defend the interests of the people of British Columbia and I’m going to continue to do this.”

The decision could then be appealed to the Supreme Court of Canada, though Horgan said he will wait until the case is decided before committing to an appeal if the court decides against the province.

People responsible for oil spills need to be held accountable, said George Heyman, Minister of Environment and Climate Change Strategy.

“British Columbians have a deep personal connection with our coast, a deep connection with our fish, with our wildlife, it’s our responsibility to defend the interests of British Columbians and that’s what we propose to do and that’s the question that we’re referring to the court,” Heyman said.

Green Party leader Andrew Weaver said he is pleased to see the government’s court reference. In a statement, he referred to a story broken by the National Observer, which found that the approval process for the Kinder Morgan Trans Mountain pipeline was “deeply flawed.”

“It’s clear that the federal approval of this project was based on political calculation, not on evidence or the best interests of the public,” Weaver said. “There are significant gaps in scientific knowledge regarding the effects of a diluted bitumen spill. British Columbians are rightly concerned that a dilbit spill could significantly harm their health and safety, their local economy and their environment.”

The regulations also include new rules, such as the development of spill contingency plans, a requirement that practice drills be held, and a requirement for plans for recovery in the event of a spill.

Nearly 200 people have begun appearing in court for defying a court injunction preventing opponents from disrupting construction on Burnaby Mountain.

Tracy Sherlock writes about B.C. politics for the National Observer. Send news tips and story ideas to [email protected].