Les Leyne: B.C. set back again in Alberta pipeline argument

Attorney General David Eby has issued several assurances that Alberta’s threat to “turn off the taps” if B.C. doesn’t stop meddling in the Trans Mountain pipeline project is flagrantly out of bounds and doesn’t stand a chance in court.

But nearly every time B.C. goes before a judge over the pipeline, it loses or least comes up short. The province managed a temporary win on one aspect, but now that’s been reversed.

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This week, the Federal Appeal Court changed a different court’s decision and sided with Alberta in the latest chapter of the drawn-out, expensive battle. It awarded costs to Alberta as well, which leaves B.C. with a string of mostly zeroes across the scoreboard in B.C., Alberta and Ottawa.

Even so, there’s potential for more cases to come. The turn-off-the-taps law gives Alberta the power to regulate and restrict oil and gas flows to B.C. But it hasn’t yet been implemented.

So some of the decisions say that B.C. is being premature, and the argument shouldn’t be heard until that law is in effect. That means there’s potential for still more cases. The NDP government may continue to pursue this argument, despite the dismal record it has piled up.

Maybe they’ll pull off a comeback win on the fifth or sixth attempt. But the previous decisions against them are starting to pile up. They’ve moved past the pipeline and now revolve around Alberta’s retaliation for the B.C. NDP’s efforts to stop it.

The root cause of this lengthy argument was the NDP’s 2018 threat to restrict crude oil movement in pipelines through B.C. That flowed from their grandiose campaign pledge in the 2017 election to use “every tool in the tool box” to fight the pipeline. They took that stance despite clear law saying it’s a federal jurisdiction.

After they took power, a government lawyer immediately warned them to drop that threat, because it was “unlawful and inappropriate.”

So the NDP downgraded the rhetoric from “stop the pipeline” to “protect the coast,” but pressed on with the threat to restrict shipments. That prompted the then-NDP government in Alberta to threaten what amounts to a potential oil and gas embargo or rationing scheme against B.C.

The turn-off-the-taps bill was explicitly described by Alberta officials as a direct punishment for B.C.’s interference.

This week’s decision took notice of statements that “the true purpose was political retaliation” and was in response to B.C.’s opposition. The political games are obvious in the title: Preserving Canada’s Economic Prosperity Act.

Various courts have remarked on how unprecedented this story is. It was described as “the first attempt ever by a provincial attorney general in Canadian legal history to obtain a declaration of invalidity of another province’s ­legislation.”

Apart from the legalities, it’s also a new benchmark for absurdity. B.C. threatened to restrict oil shipments from Alberta, then spent three years fighting Alberta’s threat to do exactly the same thing.

Getting the threat neutralized is a lot harder than Eby thought, something he acknowledged Wednesday. Finding a venue to hear concerns about Alberta’s law has been difficult, he said.

The government initially went to the B.C. Court of Appeals with a reference question about its authority in the matter. The unanimous opinion was that it had none.

That was appealed to the Supreme Court of Canada and B.C. lost.

After Alberta’s retaliation, B.C. went to Alberta Court of Queen’s Bench to get the turn-off-the-taps law ruled unconstitutional. The court said it was too soon, because the law was not in effect.

B.C. also tried the Federal Court, a different bench for governmental disputes. It won a temporary injunction there.

Alberta appealed that to the Federal Court of Appeal and B.C. lost its injunction this week, although it got some clarity on a process question.

Eby said the decision could be appealed and is being studied. In the meantime, he hopes the temperature will be turned down, something the pandemic has already accomplished to some extent.

Some anticipate that economic ­recovery from the pandemic will involve new ideas and different ways of doing things. It couldn’t happen soon enough. The decision suggests it could also involve just returning to old arguments with even more intensity because all the players are so much worse off.


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