PHOTOS: B.C. Environment Minister George Heyman, foreground, with members of his environment and climate change strategy council last fall (Photo: Province of British Columbia). Below: Alberta Premier Rachel Notley, Canadian Prime Minister Justin Trudeau and B.C. Premier John Horgan (Photo: Wikimedia Commons).

I’m not going to try to go all legal scholarly on you, dear readers, but I’ll tell you one thing about the B.C. Government’s announcement yesterday on how it would control how much bitumen can flow down the pipelines and rail lines through the province and Alberta’s response to it: It’s about 90 per cent politics and 10 per cent law.

That is to say, I don’t think British Columbia’s NDP-Green coalition government has much hope in the long run of succeeding with a legal defence of its plan to implement oil transportation restrictions on increases in the amount of diluted bitumen that can be shipped by rail or pipeline, despite the sincere hopes of many people on the West Coast.

After all, we’re talking about interprovincial trade, international trade, water and oceans, all of which are federal responsibilities under Canada’s Constitution, as well as a resource that comes from Alberta, over which it would be hard for British Columbia to assert a legal argument for control. So from that perspective, the B.C. Government’s chances of success in court seem small.

In other words, Alberta’s NDP premier was likely right when she responded to the plan announced by B.C. Environment Minister George Heyman yesterday by asserting it is ultra vires and therefore unconstitutional.

Rachel Notley was also certainly correct when she said in an official statement, “therefore, the action announced today by the B.C. government can only be seen for what it is: political game-playing.”

But when she accused the B.C. Government of “grasping at straws,” she may have been ignoring the point of the British Columbians’ strategy. Ms. Notley is no dummy, of course. She understands what Mr. Heyman was up to, and why. So her omission was intentional.

That’s the point, though, isn’t it? Politics matter. And politics matter because they get results, sometimes when the law says otherwise.

And this is a complex political fight that, while it appears to pit two NDP governments ironically against one another, actually involves a lot more players – including the Liberal federal government, right-wing opposition parties in Ottawa, Victoria and Edmonton, large blocks of voters determined to block pipelines or push them through no matter what the costs to the country depending upon where they live, and a powerful industry that may be in a far more precarious financial position than many of us imagine.

The NDP governments in Victoria and Edmonton would both like to stay in power. They have electorates who essentially take opposite views of the question at issue. They have Legislative oppositions that want to exploit their differences without tripping over the same hazards.

The B.C. Government of Premier John Horgan in particular, having just backed away from cancelling the Site C hydroelectric project on the Peace River, needs desperately to shore up its environmental credibility with voters on the Coast who feel betrayed by that decision. If they don’t succeed, their precarious government’s Green partners could pull the plug on their governing agreement.

And pipelines look like the B.C. Greens’ hill to die on – or perhaps the one on which they can cobble together a historic victory.

Meanwhile, if the oil industry, as some environmentalists and business analysts think, is shakier than we’ve been led to believe, it may not take much to make pipeline investors run away from a project like Kinder Morgan Inc.’s Trans-Mountain Pipeline expansion project, which is extremely unpopular in the Vancouver area and is the proximate cause of Mr. Heyman’s announcement yesterday.

So that’s an incentive for the B.C. Government to stall – even if they know their legal case is a long-shot – and for protesters to fight as hard as possible as long as possible.

Then there are the federal Liberals, who have 18 seats in British Columbia, more than any other party and with most of them in the Vancouver area, but only four, at least two of which are now very shaky for other reasons, in Alberta. Their electoral arithmetic is an incentive to take B.C.’s side in this fight.

They also know that Canada was turned into not much more than a big petro-state under the decade Conservative Stephen Harper was prime minister, and the national economic impact of not risking their B.C. seats, as Ms. Notley said, “could have serious consequences for the jobs and livelihoods of millions of Canadians.” So that’s an incentive to take Alberta’s side.

What will Prime Minister Justin Trudeau do? His government will probably continue to try as long as possible, as we used to say in the days when there were still payphones on street corners, to put off having to either make a call or get out of the booth.

All three governments know there are Opposition parties salivating at their prospects – the ones in Edmonton and Ottawa both convinced that while the tough-guy approach they advocate may not actually work, it will play well with voters. They may be right about that.

How will it end? Without a strong political strategy, British Columbia’s government could still win this fight despite the weakness of its constitutional case. Or Ms. Notley could turn out to be tougher on this file than anyone anticipates. Or Mr. Trudeau could turn out to be decisive and say, “Just watch me!”

Whatever happens, expect fireworks.

Join the Conversation


  1. I wonder if the BC government ever considered the differences between negotiating with an NDP Alberta or a Jason Kenney UCP Alberta.

    Maybe they should start accepting Rachel Notley and showing some party support across provinces?

    1. I’m sure they have. What we forget – because we understand that the Alberta NDP and the B.C. NDP have similar social goals – is that in many ways a Kenney Government would be superior from the B.C. NDP’s perspective (just as, for rather different reasons, A Christy Clark “Liberal,” that is conservative, government in B.C. was easier for the Alberta NDP. Rather than go on about this here, I think I’ll write a blog post on the topic. DJC

  2. While performing for his red meat base and Postmedia scribes yesterday, Jason Kenney couldn’t resist the opportunity to flail away at the NDP while simultaneously thumping his chest like a salivating unhinged gorilla in the wild, threatening all sorts of unseemly action — illegal and otherwise. (The Kenney soapbox is alive and well in case Albertans ever had any doubts.)

    The number of well-paying jobs, the beneficial economic factors that would accrue to all Canadians and the political good will involved dictates that the Trudeau government deal with this new hiccup expeditiously. Anything less than unmitigated success by the feds will be seen as dereliction of political duty to most Canadians and Albertans. I’m taking Justin Trudeau at his word that he will get this pipeline completed — sooner rather than later.

  3. There’s been a lot of talk in the past few years about “social license”, that oft-maligned term indicating at least reluctant acceptance, if not enthusiasm, of oil-transport pipelines to “tidewater”, ostensibly obtained by taking credible action to reduce carbon emissions. It was used by the Premier back in the day when the Climate Leadership Plan was first announced, and it has been used as a club by conservatives to attack the carbon tax, as various pipeline proposals get torpedoed in one way or another.

    But here’s another form of social license that has gotten little attention: that required to convince a reluctant Alberta to gradually wean its economy and its government off of fossil fuels. Phasing out coal for power generation, supporting renewable energy sources, and using a market-based incentive to drive reductions in fossil fuel consumption, are only part of the answer. While there are environmental extremists that would happily close down the oilsands tomorrow morning, and then shut off every pumpjack and gas compression station on Friday, there are far too many Alberta families that are dependent on the industry to avoid putting thousands out of work if we did that. The prospect of getting our product to markets overseas and perhaps keeping the industry viable in the short and medium term, while at the same time working to shift to a non-fossil fuel economy in the long term, in ways that support transion of employment, are the carrot, where the carbon tax is the stick. After all, the world hasn’t stopped using oil yet, so until it does, why can’t we sell it ours?

    So, all BC is doing, is handing the next Alberta election over to Jason Kenney and the UCP, who will undo everything the NDP has done on the climate file, probably in an omnibus Bill 1 as soon as they take office. I don’t see how that’s could possible advance the cause of combating climate change, since a significant portion of his base thinks it’s a hoax. As for a federal carbon tax? Count on Kenney et al to join Saskatchewan in court action to stop it.

    Remember, also, BC is not a sovereign nation (and, of course, neither is Alberta), except in those areas of exclusive provincial jurisdiction specified in the Constitution. The Constitution also provides that “residual powers”, i.e. those not specifically assigned to one level of government or the other, are vested in the federal government. So, the federal government has both the authority and the duty to regulate interprovincial commerce and the import & export of commodities.

  4. … another day in paradise …

    Speaking of “legal’ – it’s White Wednesday in Iran, where women are protesting the laws that fine and incarcerate them for not wearing a hijab or not wearing it properly.
    Point being; just because it’s a law doesn’t make it just.

    Back here in Ralph’s Wonder Kingdom where anything is permissible if it increases profits and everything is permitted if it furthers a petro-corps interests (and we’ll pass any kind of law to make the opposite illegal), the natives are restless.
    The almost 40 year era of corporate rule and ‘responsible corporate citizen’ BS may be coming to an end. It’s long past time for corporations to begin to accept the same responsibilities and restrictions placed on citizens; namely, you can’t just destroy other people’s property without paying for it and you have to pay your fair share of running the country, ie: taxes.
    The days of the-only-good-gov’t-is-a-small-gov’t are hopefully coming to an end. This case shows the small, ineffective gov’t in Alberta (and Saskatchewan) are too easily captured by special interests. A large, well-funded, informed and aggressive democratic gov’t is much more likely to represent and defend the interests of citizens over those of powerful self-interested corporations.

  5. Just as the “license plate” war to the east winds down, the pipeline battle to the west is heating up. It seems like the BC government, like the government to the east, has over stepped its bounds here, but as was said this is 90% political. I suppose it is easier to justify political considerations with regards to the minority BC government than it was with the one in Saskatchewan, which was nowhere close to an election or a minority. Just like the Saskatchewan battle, the Alberta government has nothing to lose by standing up forcefully for the province. Mr. Horgan should not mistake Premier Notley’s normal pleasant manner and courtesy to a colleague so far as a lack of resolve. Wars are often lost on a miscalculation of the other side’s resolve. If Alberta wins this battle too, will Albertan’s to paraphrase a certain foreign politician “get tired of all this winning”?

    Perhaps the strategy of BC is to try wear down the pipeline company so it just gives up, but with the price of oil going up the economics of the project must be becoming stronger and stronger. Also, even if this project does not go ahead with an established route and through a mainly populated area, BC also runs the risk of either another project using another route popping up. There is a saying about winning the battle, but losing the war. As well, Alberta may not quickly forget how BC tried to stymie this project. Should you ever doubt there are very long memories in this province, just mention the NEP. There are already threats of Alberta blocking various shipments from BC (or blocking shipments to BC), so if BC can play this game, they should not forget Alberta can too. We may be landlocked, but anything that moves between BC and the rest of Canada has to go through Alberta. Hopefully it will not come to this.

    I am sure the Federal government really, really wishes this problem would just go away and Alberta and BC would somehow just work something out. Politically the Federal Liberals certainly can get by without the seats in Alberta and maybe the ones in BC too if necessary, although I am sure they would prefer for that not to happen. Most likely the Federal government will step back and let the courts slap down BC on this one.

    Lastly, there is BC politics here which might not be as straightforward as one thinks. It is true the pipeline is unpopular in the lower mainland, but not so much in the rest of BC. If the BC NDP wishes to form a majority government, it needs to get more support in the rest of BC. This might partly explain why the BC Greens (who have no seats in northern BC) and the BC NDP have parted company on the issue of the Site C Dam in northern BC. Of course, the previous BC government also did their best to make sure the project was to the point where it would be uneconomical to stop it.

  6. Perhaps, what is the most important issue, in the big picture here, is ‘when’ there will be an oil/bitumen spill, not ‘if.’ I’m not sure I would trust that there is a “plan, or system” in place to deal with a disastrous spill as was the
    case with the Kalamazoo River bitumen spill. I think, that if we don’t think it could happen in the B.C. west coast, Fraser River, etc. areas, we can think again.
    Perhaps this could be an explanation:
    “Why Canada needs to codify Bill C-48, the Oil Tanker Moratorium Act. Testimony to the House of Common’s Standing Committee on Transport, Infrastructure and Communities.”
    After all, despite all of the rhetoric about getting fossil fuel exports to the coast, economic security, employment,etc., if there is a spill, what will be said? “Oh dear?”
    It could end up being the case as stated so aptly in the Joni Mitchell song, “You don’t know what you have ’til it’s gone,” and at what cost, not only financially, but more importantly, environmentally. Is it worth the risk?

  7. What Alberta, BC and Ottawa forget is that they are trying to make deals with resources that do not legally belong to them. If UNDRIP were implimented renewables would win abive the worlds dirtiest fossil fuel.
    Land and water protections would have preference over renewables. Technological and intillectual knowledge and applications of sustainable power and food sources would provide an economic edge. Right now governments see doolar signs. All politicians can walk away (4 year terms) from their bad decisions. They get to keep their illgotten pensions. The public has to live with the fallout forever. It is the publics decision, not governments.
    Implimenting UNDRIP and honour all the Treaties is the first step. It is not about dollars anymore. It is about saving the world from the folly of blind politicians who CAN WALK AWAY.

  8. Bloomberg report (cited by AB’s Parkland Institute)

    excerpt: “Alberta’s oil sands industry is a carbon bubble—a petroleum-oriented economy that has a high risk of instability, crisis, and even collapse,”

    excerpt: ‘The five largest producers in the Alberta oil sands are failing to take meaningful action in line with the targets Canada has agreed to under the Paris Agreement on climate change, creating billions of dollars in economic and environmental risk in a world increasingly recognizing the need to transition away from fossil fuels.’

    excerpt: ‘Despite the fact that all of the Big Five except for Imperial Oil have acknowledged the Paris Agreement, Hussey says that none have set targets or implemented material actions in line with the emissions reductions required to limit global temperature rise to 2°C. On the contrary, all five corporations project increases in their total emissions for years to come.’

    Add in the accumulated $40B+ in oilsands tailings pond clean-up liabilities that AB’s will be on the hook for in the event of a permanent decline in oil prices in the next decade or so… there is significant reason to stop expanding the oilsands.

  9. David, this is an excellent assessment of the situation. Well done!

    As a resident of South Vancouver Island (John Horgans riding) I’d like to add 2 cents, if I may. One issue you neglected to mention is the unceded territories the pipeline and subsequent tankers supposedly will cross. These court cases are constitutional issues.

    People east of the coast fail to realize that we are connected to our land and ocean in a way that you consistantly fail to realize in its depth and intensity. We will fight to the death and that will not reflect well on the Feminist in Chief. Imagine the headlines and images of British Columbians being beaten and detained on the front. Not sure if you remember the war in the woods in the Carmanna Valley. Suffice it to say, first they laughed, then they arrested us, and then we won. We have not forgotten.

    It’s not just Burnaby, check the graphics of voter support in BC. The entire coast is passionately opposed to this project and that support extends the entire route to the AB border in the southern interior.

    I understand Notley’s problem, and I don’t envy her having to deal with it, but her best recourse is to continue to transition those tar jobs to renewables. She’s doing a pretty good job, given the situation. I think Horgan understands that. I’m sure you’re correct when you say they all probably just want this political football to go away.

    We could always build the pipeline and reverse it to ship you the tidewater you desire. Your call 😉

    1. Thank you for bringing into the discussion the intense connection of coastal folks to our ocean. To watch CBCs Power and Politics, for instance, is to see how flippant commentators from Calgary and Ottawa laugh off this fact of Canadian life. A good case can be made that the obscenity of Northern Gateway and the Petronus LNG plan, that would have ruined sockeye grounds at the mouth of the Skeena, were stopped by a combination of First Nations, environmental groups and many, many ordinary citizens.

      Albertans have the delusion that Coastal BC depends on their dilbit for fuel, and that is just not true. The Parkland Refinery in Burnaby puts through some 55,000 bbl/day and yet, with its large population, we’re told that twice as much could be refined. The dilbit that Kinder Morgan wishes to bring to the Coast will do nothing to add to the fuel situation in the Lower Mainland and the rest of BC as it is slated to be loaded on tankers bound for Asia. We will continue to depend upon the refineries at Cherry Point, Washington. In effect we’ll be using refined Alaskan crude. Nothing will change for us if KM builds its dilbit pipeline, except for the on-going danger of increased tanker traffic and dilbit spills.

      As things stand now, Alberta has nothing that we need here on the Coast. Their huffing and puffing and bullying serve onlty to make many of us detest even more Alberta, Albertans and the likes of the Liberal Resources minister, Jim Carr, who is nothing more than a bum boy for the petro thugs in Calgary. Recently a new refinery opened just outside of Edmonton, the first in decades. Think of all the jobs that brings to Alberta and the products that it can supply to all of Western Canada. But, it is virtually ignored by Albertans as it required vision and energy to bring to fruition, something sadly lacking in an Alberta locked into a 1950s mentality.

      1. Just a decade ago, the left in Alberta demanded that we not ship our jobs “down the pipeline” to Texas. Now we are silent about this. What gives? The simple answer, I think,is that U.S. fossil fuel giants want to run their refineries on the Gulf Coast to capacity and have no interest in refining close to the resource, and that the Alberta and federal governments, like their Conservative predecessors, appeal to be captured by industrial interests. I don’t know that British Columbians would be universally happy with refined products from Alberta being shipped through pipelines from Alberta, but they would certainly be less concerned than they are now about the dark potential of diluted bitumen. DJC

        1. “Just a decade ago”?
          In fact, the NDP’s 2015 platform expressly opposed dilbit export pipelines:

          “[The PCs] squandered Alberta’s natural resource wealth, failed to achieve greater value-added processing in Alberta, and have focused only on more export pipelines for unprocessed bitumen – sending our jobs to Texas.”

          The AB NDP reversed its position on export pipelines.
          Notley campaigned on a fairer return to Albertans in royalties “to ensure full and fair value for Albertans”. She quickly reneged on that promise, and instead she’s flogging pipelines.

          “We will take leadership on the issue of climate change…” by backing new export pipelines and oilsands expansion.

          Notley clearly regards party platforms as shell documents.
          Why should Albertans believe anything in the NDP’s 2019 platform?

          1. Fair enough. I was thinking of the AFL and its slogan, which surely was 10 years ago now. DJC

  10. I find the most contrasting positions on the same topic today on Progressive Bloggers. The Mound of Sound takes the opposite position on dilbit from this Albertan point of view.

    I’m afraid I favour his view, by far. Alberta needs to wake up, whether it be Notley or Kinney. As for Trudeau – pfft. The man is little more than a twit.

    Back when provincial governments irelectric utilities wanted to wheel electricity across one province to a customer on the other side, some bright spark looked up modifications to the BNA Act from the 1890s. Provinces have the absolute right over their borders and territory when it comes to power transfer. So, no wheeling without payment to the province over whose territory it crossed, if that province feels like it in the first place. Quebec to Nova Scotia across New Brunswick was the example du jour. No doubt the same logic can be applied to dilbit and BC. What obligation does BC have to transport Alberta’s synthetic muck to THEIR tidewater? None, probably, and a lot of jumping up and down in Alberta isn’t going to change that.

    People here need to read Mound’s blogpost to get some idea of the depth of feeling about dilbit in BC. Presumably if they have been keepin up beyond living in their Alberta bubble of righteousness, they already have.

    I’m on the East Coast myself, and more by luck than anything, Energy East dilbit was averted, thank goodness. BC is about to be subjected to the biggest load of PR and political blathering BS imaginable. For their sake, I hope they withstand it.

  11. J.E., unusual day for me, I have to admit I agree with the second part of your comment. For there to be a solution Justin Trudeau must get involved. From his standpoint politically is there an upside? He has 17 MP’s in B.C. but only 4 in Alberta(at the moment really 2), is he willing to stand up to B.C., I have my doubts!

    Jerry, I agree with you 100%, B.C. is demonstrating that Alberta’s climate leadership plan has done absolutely nothing to get environmentalists on side with pipeline construction. This certainly improves the UCP’s chances of winning the next election!

    Ronmac, still laughing, good comment

  12. Dear Rachel:

    Would you please get even with BC by promising not to buy any power generated by Site C?

    Pretty please?

  13. Never forget the NDP didn’t grow its vote-count in the last election, it merely ‘reallocated’ it to urban Lower Mainland ridings where the BC Liberals lost most of their longtime seats (and of course the Greens appear to have stolen a lot of BC Liberal votes—their three seats prop up the NDP minority)

    After disappointing so many members and supporters by continuing with the Site-C Dam (I figure it’s a five-digit number of members), the NDP has to wait for the Electoral reform referendum: if we change to pro-rep the Greens will prob’ly topple the NDP to get an election where they’ll be sure to win many more seats than they have now—meaning the NDP will simply have to get more seats than the BC Liberals, and then, less simply, earn the patronage of the Greens to form minorities thereafter. I think the BC Liberals are going to get more punishment next time because of their record, pro-rep or not.

    Most people outside the Lower Mainland—and not very far outside, either—do not fully appreciate the antipathy for dilbit tankers there: it probably helped the NDP win those seats. Opposition crosses party lines (which is why the BC Liberals lost those seats). Outside the province the awareness is much, much less.

    Now, I’m a dissident Dipper who doesn’t approve of proportional representation, and who is ambivalent about TMX pipeline. I was very much opposed to the Northern Gateway pipeline because the Kitimat deep water port was so crazy it had to have been a ruse or a stalking-horse for an obviously better one: Prince Rupert (NG/ Kitimat got shit-canned anyway). Keep that city-port’s name in mind, Pr Rupert—might hear it again one of these days. It has some big advantages, and easily over other ports like Greater Vancouver’s or anywhere on the south-Coast (where voters live) or mid-Coast ports which are all in deep fiords too treacherous for big tankers (massive tidal bors, intense and sudden winter outflow winds, eight months of inclement fog and-rain-weather—reefs, atolls, islands and narrow, twisty passages). Pr. Rupert, in contrast, is the second largest deep water harbour in North America (second to NYC), a fairly short, direct passage to open ocean—and a transcontinental railhead. I don’t understand—why isn’t Pr Rupert already shipping gunk? Somebody must be keeping this card up their sleeve.

    I thought former NDP leader Adrian Dix’s late campaign condemnation of TMX was very stupid: it was still under assessment at the time (since approved) which showed he was desperate, not ready to govern (Christy Clark won her first and last majority because of that). Although I’m not keen on a seven-fold increase in tanker traffic through Vancouver’s Burrard Inlet into the Salish Sea, around the southern tip of Vancouver Island just off Victoria and thence up the Juande Fuca Straight, at least there are the navigational aids of two federal governments, and one state and one provincial government—right where all the people (voters) are. Wide shipping lanes, though, except into Burrad Inlet. The Americans are intensely uptight about spills in the inside waters—they consider BC a major polluter of their waters already, even without TMX. Meanwhile lawsuits are always a threat from US jurisdictions downstream on some big rivers flowing out of BC in the southeast and northwest(both related to mining pollution). Peugeot Sound cities have protested Victoria’s sewage outfal for decades. Sad to say the Americans are much better than we are in protecting their Pacific Northwest waters. Alaska doesn’t even allow fish farms. They consider us barbarians, believe it or not, “Canada the Good.”

    I see two solutions: if going the TMX route, pump oil instead of dilbit—that is, refine bitumen in Alberta. The fact that dilbit doesn’t clean up, mixed with some of the strongest environmentalism in the Western Hemisphere, is a total killer for a TMX-dilbit plan. It will never be accepted on the south-Coast, never, never, never—so never that it crosses party lines. The party that doesn’t condemn TMX doesn’t win Lower Mainland and southern Van Isle seats, meaning it will never ever be government—at least not under SMP (I’m counting on BC voters to reject pro-rep in the upcoming Referendum ). Whatever electoral system we get, the opposition to TMX is only going to get stronger: people pay the crazy prices for a house in Vancouver area, they don’t feel they should have to put up with the risk, they don’t care about the Constitution.

    Two: rail or rail-side pipeline to Prince Rupert. The NDP will support this because voters up there like it—and it’s far way from Lower Mainlanders’ and Islanders’ NIMBYism. The NDP would like to win those northern seats back—so bad it’s even touting LNG!

    The more focus on Burnaby (Grtr Van), the more vitriolic and troublesome it’ll get—just no way around that. I mean, people down there are liable to do just about anything to stop it. There are protest camps years old in Burnaby and on up the line in the Interior, some on Reserves, almost all on unceded (no-treaty) First Nation territory. Premier Notley threatens with the Constitution, but against BC FNs, she risks becoming, not talking, turkey. The Constitution is a giant can of worms in BC, everybody knows it.

    Good point on the Liberal situation. I think a lot of voters are pissed off at JT right now. He made some promises he didn’t keep in BC—worse, he did it to First Nations who have become extremely powerful because of SCoC victories and the lack of treaties. Premier Horgan has also pissed a lot of people off over Site-C. And the BC Liberals (no relation to the feds) record in government is now being revealed (the public auto insurance just announced the $1.2 billion “dividend” the BC Liberals kiboshed from ICBC to balance the provincial budget is the same amount of this year’s budget deficit for ICBC—$1.2 billion! For a single Crown Corp! In just a couple years! Holy cow!)—and of course, even though the NDP is wearing Site-C, everybody knows who is ultimately responsible: the BC Liberals. So Lower Mainlanders are feeling negative about anything with the word “liberal” in it, and JT knows it. Jagmeet will prob’ly steal those Surrey seats for the NDP, maybe a couple more. But Scheer? Hmmm…Elizabeth May? Hmmm…

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