Alberta Politics
An undated stock photo of work on the Trans Mountain Pipeline (Photo: Facebook).

B.C. Appeal Court’s Trans Mountain ruling may not be quite the slam-dunk Alberta thinks it is

Posted on May 27, 2019, 12:45 am
8 mins

The unanimous ruling Friday by the British Columbia Court of Appeal that the B.C. Government does not have the constitutional authority to control what goes inside the federally regulated Trans Mountain Pipeline is being hailed as a great victory in Alberta.

Church bells didn’t actually ring on Friday, but the general tone of media coverage of the decision by five justices of the B.C. Court of Appeal was that it was “a great victory for Premier Jason Kenney” and a “humiliating court defeat” for B.C. Premier John Horgan.

Alberta Premier Jason Kenney (Photo: David J. Climenhaga).

Both of the passages in quotation marks were actually written in Postmedia’s Calgary Herald, which may be limbering up for the Toronto-based corporation’s hoped-for new role as part of Mr. Kenney’s partisan “war room” anti-environmentalism operation.

The first statement is obviously untrue, beyond the fact the ruling was the one longed for by Mr. Kenney and his new United Conservative Party Government. Mr. Kenney literally had nothing to do with it.

If any single politician deserves credit for the victory, it would probably be Prime Minister Justin Trudeau, whose Liberal government bought the pipeline when its private-sector owner was about to pull the plug on the expansion project, approved it once and will likely approve it again next month, and instructed a senior Justice Department counsel to make the arguments that ultimately prevailed before the court.

Don’t look for anyone in Alberta to admit this truth, though. The ironic ultimate result, one suspects, is that in the fall federal election campaign Mr. Trudeau will get all of the blame from outraged West Coast environmentalists and none of the credit from Alberta’s perpetually dissatisfied bitumen boosters.

As for the second statement, a better case can be made for that given the unanimity of the court’s decision, but it is unclear whether Mr. Horgan’s government ever expected to win this case, the outcome of which was confidently predicted by most legal scholars.

British Columbia Premier John Horgan (Photo: David J. Climenhaga).

While Mr. Horgan and his Attorney General, David Eby, immediately signalled their intention to appeal the ruling to the Supreme Court of Canada – to predictable howls of outrage from many of the usual suspects here in Alberta – there was a victory for B.C. in the ruling obscured by the prima facie defeat on Friday.

Remember, B.C. brought this forward as a reference case, to see if its argument for its right to regulate the contents of modes of transportation passing through the province’s territory would pass muster. So, by losing and being prepared to try again, it can be argued it wins politically by demonstrating its good intentions to the Green Party MLAs propping up its tenuous hold on the B.C. Legislature in Victoria, and to voters who might next time be tempted to go Green.

“You could almost feel sorry for the guy, if he hadn’t directly caused so much economic pain in Alberta,” complained a Herald columnist, apparently forgetting that Alberta’s pain was mainly caused by the Federal Court of Canada’s ruling on the slapdash way the project was originally approved.

British Columbia Attorney General David Eby (Photo: Wikimedia Commons).

Friday’s ruling also provides the B.C. NDP with a certain amount of political cover if it is still in power when the inevitable bitumen spill takes place in southern B.C.’s inland maritime waters.

More importantly, though, since it has now been clearly established that B.C. cannot control what goes through a federally regulated pipeline, a strong argument can be made that neither can Alberta.

Alert readers will recall the legislation, passed by Rachel Notley’s NDP Government and proclaimed into law by Mr. Kenney’s UCP, that was designed to cut off shipments of gasoline to British Columbia in the event its government and people won’t knuckle under to Alberta’s pipeline demands.

Prime Minister Justin Trudeau (Photo: David J. Climenhaga).

Surely what goes for the goose must go for the gander, all the more so if the B.C. appeals court’s ruling is confirmed by the Supreme Court of Canada. Such an outcome would slyly deprive Mr. Kenney’s government of this much-touted weapon in the event engaged coastal British Columbians find other ways to oppose or stall more pipelines running through their territory, either in the courts or in the political arena.

B.C.’s vow to appeal the matter to the Supreme Court is widely seen in Alberta as another outrage, merely an effort to stall the pipeline again. It’s just politics, pipeline supporters screech.

This is a bit rich coming from supporters of the UCP when Mr. Kenney is backing equally unpromising legal efforts by Conservative allies like Ontario’s Doug Ford and Saskatchewan’s Scott Moe to stop the federal carbon tax.

These cases unquestionably are motivated strictly by politics, not by sound legal reasoning.

But there you go, as Mr. Kenney clearly understands, even if many of his supporters don’t, that’s what happens in a democracy with the rule of law. So don’t expect this story to end any time soon.

Large political headlines likely today

We can expect to learn today the political plans of former Liberal cabinet renegades Jody Wilson-Raybould and Jane Philpott, and the details of the Kenney Government’s tendentiously titled “Open for Business” Act, which will likely be aimed mainly at restricting the constitutionally protected collective bargaining rights of unionized workers and giving employers carte blanche to treat employees however they like.

5 Comments to: B.C. Appeal Court’s Trans Mountain ruling may not be quite the slam-dunk Alberta thinks it is

  1. Bill Malcolm

    May 27th, 2019

    Since the TMX pipeline is owned by Canada, it seems unlikely that Kenney strutting about like a chook that’s just been fed can tell the owner what can be shipped through it when the chips are down. If Canadians collectively manage to put Scheer and the Cons in power this fall, the latter could wreck Confederation if they succumb to Mini-Emperor Jason and try to screw BC on gasoline shipments.

    The Kinder Morgan web page used to show how they “batch” shipped various petrochemical products including gasoline through it. Right now, ripping off BC on gasoline pricing is flavor du jour, and who knows whether there’s collusion between the Alberta refiners and Cons on that. Whatever, it’s a damn unfriendly thing to do to your neighbour and a developing part of the original Notley hissy fit that Jason hasn’t changed. How to win friends and influence people.

    If BC left Confederation, they could get product from the Northwest US without much trouble, and then tell Alberta to go fuddle-duddle itself on any petroleum shipments to the coast while advising Albertans to develop a liking for toasted triple decker dilbit sandwiches. Perhaps even Cons have the brainpower to work all this out in advance, though it might be a stretch to think so. They seem quite happy to piss off Quebec, which really isn’t too bothered what a load of wanna-be cowboys with a chip on their shoulders leaping up and down out west on the wrong side of history say.

    Reply
    • Political Ranger

      May 27th, 2019

      Woohee!

      Whoa down there Tex!

      “… a load of wanna-be cowboys with a chip on their shoulders leaping up and down out west …

      I don’t know if we can get a halter on that one let alone saddle ‘er up and ride on outta here!

      Reply
  2. Political Ranger

    May 27th, 2019

    What a buzz-kill you are David! Why trot out all these boring and complicated facts when we are in such a state of glee over Postmedia headlines?

    Reply
  3. Dave

    May 27th, 2019

    The example of the UCP criticizing the BC for not accepting the recent court decision on pipelines, while it seems determined to ignore the recent Saskatchewan decision on carbon taxes is particularly poignant. It reeks of hypocrisy and this is exactly the sort of thing that turns off voters.

    I think this helps explain why none of the three main parties are doing particularly well Federally now. The Federal Liberals who promised to do politics better seem to be mired in politics as usual, yet the NDP hasn’t benefited from their troubles, nor have the Federal Conservatives that much. The main beneficiary so far seems to be a newer party that has never held power – the Greens.

    It might seem clever and be great fun for rabid partisans to criticize their opponents and to say they are terrible for doing the same things that when their own party does it, they are either silent or make excuses for. However, until one or more of the Federal parties figures out this does not go over so well with the voters, I suspect all three of them will continue struggle to gain more support.

    Reply
  4. Simon Renouf

    May 27th, 2019

    I can’t wait to see the UCP’s “war room” hoisting a banner of the BC Court of Appeal’s opening words:

    “The protection of the environment is one of the driving challenges of our time. No part of the world is now untouched by the need for such protection; no government may ignore it; no industry may claim immunity from its constraints. This reference is not about whether the planned Trans Mountain pipeline expansion (“TMX”) should be regulated to minimize the risks it poses to the environment — that is a given. Rather, this reference asks which level or levels of government may do so under our constitution, specifically ss. 91 and 92 of the Constitution Act, 1867”

    Reply

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