Editorial: Pipeline debate may still have surprises

After B.C.’s top court ruled that the provincial government cannot interfere with oil shipments across its borders, it seemed the matter was settled.

The ruling came about because the province wished to halt expansion of the Trans Mountain pipeline from Edmonton to Vancouver. Uncertain whether this would be constitutional, the government asked the B.C. Court of Appeal to pronounce on the issue.

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Since all five judges on the bench found that any such attempt would intrude on the exclusive jurisdiction of the federal government, most legal experts took that as final.

Yet B.C. Attorney General, David Eby says the government will appeal to the Supreme Court of Canada. Isn’t this a waste of taxpayers’ money?

At first glance, it might appear so. The Constitution Act gives sole authority to the federal government in matters of interprovincial trade.

Specifically, section 121 of the Act states: “All articles of the growth, produce or manufacture of any one of the provinces shall, from and after the union, be admitted free into each of the other provinces.” That seems definitive.

Yet in an unrelated decision last year, the Supreme Court ruled that provinces do have the right to halt the transportation of goods and services across their borders, so long as the primary objective is not to impede trade.

That ruling left many in the legal community baffled. It had been understood since Confederation that only Ottawa can regulate interprovincial trade.

The reasons behind that understanding were clear.

When the decision was made to establish Canada as a federation of provinces, there were concerns that isolationism might set in. It appeared possible, even probable, that local politicians would play beggar thy neighbour if it appealed to the voters back home.

The Constitution Act was written with an eye to preventing such behaviour.

But in its ruling last year (the case involved importation of cheap beer from Quebec to New Brunswick), the country’s top court introduced some important exceptions.

While the justices agreed that provinces do not have the right to restrict cross-border trade if that is their primary purpose, the court listed certain public policy interests that could create an exception. These include “agricultural supply management, public-health prohibitions, environmental controls and similar schemes.”

The court’s concern was that our founding legislation, as it stands, is too restrictive. It fails to take account of legitimate concerns.

For example, if an outbreak of meningitis occurred on one side of the B.C./Alberta border, might not some form of quarantine be justified, even if it interfered with cross-border movement.

And here is where the court’s ruling has relevance in the Trans Mountain case. The argument put forward by the B.C. government is that it wished to limit the risk of harm to the environment.

But environmental controls are one of the permissible schemes specified by the court. No doubt this is the case Eby will make. Will he succeed? Only time will tell. But there is language in the B.C. Court of Appeal’s ruling that suggests he might not.

The court found that, while environmental concerns were central to the province’s stated argument, the unmistakable intent was much narrower — to halt the Trans Mountain project.

As Justice Mary Newbury wrote: “It [the legislation] is not of general application, but is targeted at one substance in one interprovincial pipeline.”

In the court’s view, that undermined the province’s claim to be concerned principally with the environment. Had that indeed been the case, the legislation should have been drafted more broadly to combat other threats as well.

In effect, Newbury concluded that by zeroing in on one specific project, the government’s primary purpose was to impede trade. And that, as the Supreme Court ruled, is not permitted.

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