Courts won't let Alberta turn off the taps, say legal experts

B.C. has a very strong argument against Alberta’s move to limit the flow of oil into the province, and Ottawa’s decision to buy the Kinder Morgan Trans Mountain pipeline is unlikely to change that, three constitutional experts agree.

In May, Alberta passed legislation — bill 12 — that would allow the province’s energy minister to require licenses for the export of crude oil, natural gas, and refined fuels. B.C. is suing Alberta over the legislation, saying it is unconstitutional because it discriminates against and is intended to punish B.C., and would cause irreparable harm to the province.

National Observer asked three constitutional experts from across the country for their opinion on the validity of B.C.’s case — Joel Bakan, a University of British Columbia law professor and constitutional law scholar; Ryan Hurl, a professor who teaches constitutional law and political science at the University of Toronto; and Eric Adams, an associate professor in the faculty of law at the University of Alberta who researches constitutional law and theory.

Bakan says the case is so straightforward in favour of B.C. that he wouldn’t even use it as a question on an exam.

“I like to give exams where there is some ambiguity and there are two sides and you can argue both of them. This is a very one-sided case,” Bakan said. “It’s fairly slam dunk.”

Hurl and Adams both agreed that B.C.’s constitutional argument is very strong.

The law says provinces cannot regulate interprovincial trade, but it makes an exception with respect to some non-renewable resources. However, refined fuels are not included in that exception and the exception cannot be used to discriminate against any one province, Bakan said.

Adams concurred: “That is because the drafters of the Constitution anticipated circumstances like this one, which they wanted to avoid; which is that you wouldn’t want a particular province to leverage its own law-making authority to create trade wars or economic harm on its partners in confederation.”

Further, B.C.’s got a good argument that the bill was designed to harm the province, Adams said. “(B.C.) cites the government’s own words against them, which is that this bill is intended to inflict economic harm on British Columbia.”

Ottawa’s decision to buy the pipeline makes no difference

All agreed Ottawa’s decision to buy the pipeline doesn’t change the facts of the case.

“Either Alberta has the power to engage in a trade war against B.C., or it does not; either B.C. can use its regulatory powers to obstruct the channels of inter-provincial commerce, or it (cannot),” Hurl said. “Ownership of the pipeline is irrelevant. In a rational world, neither constitution-bending law would be acceptable, but this is Canada in 2018.”

All three scholars noted that Alberta's law isn’t discriminatory on its surface because it doesn’t even mention B.C. This may make B.C.’s case premature, but the province didn’t want to wait and risk having its oil supply cut off.

“We believe it would be reckless in the extreme and therefore highly unlikely that Alberta would actually use the powers that they granted to themselves in bill 12, especially when there is an ongoing constitutional challenge to the legislation,” B.C.’s Attorney General David Eby said.

Bakan says the courts will take context into consideration.

“The Supreme Court has been very, very clear in recent judgments that when you’re trying to assess the purpose and intent of a piece of legislation you don’t just look at the surface of the act, you look at its timing, what was said in the legislature, (and) what was said outside the legislature,” he said. “When you look at all of that, the Alberta energy minister and premier have not been in any way shy about saying, ‘we are doing this to inflict pain on B.C.’”

Hurl noted that the recent Comeau decision, which allows New Brunswick to limit the amount of beer an individual can bring into the province from Quebec, shows that the Supreme Court can be unpredictable when it comes to inter-provincial trade.

“We’ve gone away from the vision of a nation as essentially a free trade zone and instead, we have provincial autonomy — we call it cooperative federalism — but it’s basically squabbling federalism, cartel federalism, protectionist, beggar-thy-neighbour federalism and we’ve managed that for a long time and people have become comfortable with it, but now we’re starting to see some of the serious consequences,” Hurl said.

B.C.’s other case not so clear-cut

Our three legal experts were not as supportive of B.C.’s constitutional reference case, in which the province is asking the courts to determine whether it has the jurisdiction to regulate the transport of diluted bitumen through the province.

“What’s good for the goose is good for the gander,” Adams said. “There are ironies that run through all of this legislation — and much of the political fight — because all of the same principles which render Alberta’s bill 12 constitutionally invalid, those same principles will cause difficulties to the B.C. government in having an open-ended environmental jurisdiction within their province.”

Adams said it's clear B.C.’s proposed law is in relation to the Trans Mountain pipeline.

“It’s clear B.C. has jurisdiction to pass laws about the environment, and it’s clear that it even might be able to pass laws that have some impact on shipment and transportation of oil,” Adams said. “But what is not possible is for B.C. to pass laws that are really about targeting pipelines when they cross borders.”

But Bakan said B.C. is likely to get a favourable result.

“(That’s) because the court is not likely to say you have no regulatory jurisdiction and the court is not going to say you have sufficient regulatory jurisdiction to stop the whole thing,” Bakan said. “They’re going to say something in between.”

Whatever the verdict in either case, it is likely to be appealed to the country's highest court.

Eby said his government has urged Alberta and the federal government to take all outstanding matters between Alberta and B.C. directly to the Supreme Court, but they haven’t listened.

“This would fast-track resolution of the inter-provincial dispute, it would bring finality, and it would bring certainty,” Eby said. “Unfortunately, both Alberta and Canada refused our proposals.

“Regardless, we will continue to stand up for our coast, our economy, and the people of British Columbia — and we will continue to do so responsibly and within the confines of the law.”

Some have criticized B.C. for a seemingly contradictory legal stance — fighting against the restriction of oil in one court while fighting for restriction in another court. But Eby says the two cases are very different.

“In terms of the difference of the content of the two laws, (it) is that B.C. is seeking to ensure that we have adequate environmental protection to prevent a spill in the event that there is an expansion in the shipment of heavy oil in British Columbia, and also if there is a spill, to clean it up. It is not to stop the pipeline; it is not to prevent it,” Eby said.

“Alberta is proposing to stop fuel from flowing to B.C. as punishment apparently for our reference case. We believe it’s unconstitutional, and our approach is different and the legal basis of the two laws is dramatically different.”

Legal battle like a healthy debate between roommates

The battle in the courts doesn’t represent a constitutional crisis and is actually the way things should play out in such a conflict, Bakan said.

Hurl looks at the battle through a political science lens.

“If the federal government makes a decision that does not adequately take into account the interests of B.C., then they will be hammered for it at election time, so there is a real constraint on what they can do,” Hurl said. “The government of B.C. has no need to take into account the interests of Alberta, and Alberta has no need to take into account the interests of B.C., and when their interests conflict, that’s why you have a federal government. It’s literally why Canada exists.”

For Adams, it’s like a healthy debate between roommates, in which both sides are probably going to have to compromise, at least a bit.

“There are going to be unhappy people. That’s sometimes the case within modern, complex democratic society in which interests can and do conflict,” Adams said. “What I think is the case about Canada is that our constitutional instruments do a reasonably good job, although not a painless job, of navigating these inevitable tensions … and leading us to legitimate outcomes.”

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