Core constitutional concepts such as the national concern doctrine and the federal peace, order and good government power are what the court will have to analyze in a case that stems from a dispute over the proposed $7.4-billion Trans Mountain pipeline extension.
While the legal doctrines are not new, the stakes are very significant for inter-provincial mega projects. In this instance, the B.C. government is pitted against Alberta and the federal government, with Prime Minister Justin Trudeau insisting the project will go ahead.
Andrew Lokan, a partner at Paliare Roland Rosenberg Rothstein LLP in Toronto, says the scope of B.C. legislation is what the Court of Appeal will look at to determine if it is valid.
“To the extent that there is reasonable regulation that respects the Constitution, the courts will have a high tolerance,” says Lokan, who specializes in constitutional law.
“Provinces can regulate; they cannot frustrate,” he explains.
The B.C. government submitted the reference to its Court of Appeal on April 26. It also retained noted civil liberties and constitutional lawyer Joseph Arvay to act for it in the case.
The amendments would give the province more power to regulate the impacts of heavy oil if there is a spill. Hazardous substance permits must be obtained and certain conditions followed, including payment to local and First Nations governments in the event of a spill.
The province would also have the power to revoke or suspend the permits.
B.C. Attorney General David Eby issued a statement after the reference was issued that suggested the courts are the best forum to determine the extent of the provincial powers in this area.
“We have been clear from the outset that the appropriate way to resolve disagreements over jurisdiction is through the courts, not through threats or unlawful measures to target citizens of another province,” Eby stated.
Alberta Premier Rachel Notley, who is a lawyer, stated that the actual goal of the B.C. legislation was to “harass” the pipeline project and that it was “several miles” outside the powers of that province.
The country’s economy will “grind to a halt faster than you can say free trade,” Notley said in an Edmonton Journal report after the reference was submitted.
Lokan says the B.C. government will have an uphill battle in convincing the court that its legislation is within provincial powers under the constitution.
“It is pretty clear that the federal government has a strong basis for jurisdiction. It can declare the project to be a federal work or undertaking,” says Lokan.
As well, the paramountcy power of the federal government would prevail in any conflict between provincial and federal legislation, he says.
The decision of the Supreme Court of Canada in 1988 in R. v. Crown Zellerbach Canada Ltd., Lokan says, dealt with many of the same constitutional principles.
In that case, the B.C. government challenged the validity of the federal Ocean Dumping Act, which prohibited the dumping of any substance at sea, except in accordance with the terms and conditions in a permit.
The Supreme Court found that the federal government did have authority to regulate pollution in marine waters, even within the territorial limits of a province, because of its extra-provincial implications and the national concern doctrine.
“The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern,” wrote Justice Gerald Le Dain in the majority judgment.
“For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern,” he added.
In another Supreme Court decision in the 1980s, Reference re Upper Churchill Water Rights Reversion Act, legislation by the Newfoundland government was found to be invalid.
The form of the act appeared to be valid, but its substance was outside the constitutional authority of the province and an attempt to negate the impact of a long-term hydroelectric contract previously signed with Hydro Quebec.
“Where, however, the pith and substance of the provincial enactment is the derogation from or elimination of extra-provincial rights then, even if it is cloaked in the proper constitutional form, it will be ultra vires. A colourable attempt to preserve the appearance of constitutionality in order to conceal an unconstitutional objective will not save the legislation,” wrote Justice William McIntyre for the court.
In recent comments expressing his support for the pipeline expansion, Trudeau explicitly stated that there is a “national interest” in responsibly transporting resources to new markets.
Kinder Morgan, the company responsible for the pipeline project, has set a deadline of May 31 for the federal government to come up with a clear plan for it to continue.
The B.C. court reference that has just been announced may have considerations other than clarifying the scope of the province’s constitutional powers with respect to environment, Lokan says.
“It could be that the play here is more of a political one.”