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B.C. pipeline review needed to restore legal powers

Province has signed away rights to carry out its own assessment

Last week, NDP leader Adrian Dix announced his commitment to a "made in B.C." environmental review of the proposed Enbridge Northern Gateway pipeline. As an adviser to Dix on this issue, I wish to explain the legal considerations behind this decision.

In 2010, the B.C. Liberals signed an "equivalency agreement" with Ottawa, which said, in effect, that an environmental assessment of the Enbridge pipeline and tanker proposal carried out by the Harper government's joint review panel would constitute a B.C. environmental assessment as well.

(It is important to note that the word "joint" does not refer to a joint review conducted by Canada and B.C. It refers, instead, to a joint review undertaken by two federal agencies, the National Energy Board and the Canadian Environmental Assessment Agency.)

Not many people paid attention to the agreement at the time. But it has profound implications for B.C.'s ability to control its own destiny when it comes to major energy projects like the Enbridge pipeline and tanker proposal, which will profoundly affect our economy and our environment.

The equivalency agreement means that the provincial Liberal government has given up any say in key areas of B.C. jurisdiction, such as air and water quality, fish and wildlife, forests, Crown lands, and lakes, rivers and streams. In legal terms, Enbridge Northern Gateway now does not need to undergo any assessment under B.C. laws at all: The Liberals agreed to accept the federal process as being "equivalent."

This is in no way a joint review like others in the past where both Ottawa and Victoria appointed members to panels. In the Enbridge case, the three panel members have no connection with B.C. With recent changes in federal law, the agreement gives Prime Minister Stephen Harper and his cabinet ultimate control of the Enbridge decision. It puts B.C. on the sidelines, despite the fact that critical B.C. interests are at stake.

The B.C. government fled to the sidelines to avoid taking a position, abandoning its responsibilities to defend provincial interests. While federal-provincial collaboration is generally to be encouraged, it is unreasonable to expect Harper to represent B.C.'s interests. That is the job of the B.C. government; it has abandoned that role by signing the equivalency agreement.

As Dix stated: "We have a federal process making a critical decision that's essential to British Columbia that includes no British Columbians on the panel, that has no evidence from the province of British Columbia and where British Columbia has abdicated its regulatory responsibility."

That reality is at the heart of the decision made by Dix and his caucus to terminate the equivalency agreement and to commit to a process to re-establish B.C.'s powers.

A number of objections have been raised to this move, but they simply do not hold constitutional water.

One objection is that since Ottawa has primary jurisdiction over interprovincial pipelines, this is entirely a federal issue. If that were the case, there would have been no need for an equivalency agreement. The very fact that B.C. signed the agreement demonstrates that it had certain constitutional powers that were given up in favour of a purely federal process.

Another objection - one that has been offered by Premier Christy Clark and other Liberals - is that B.C. could stop the Northern Gateway pipeline if it is approved by Ottawa, merely by withholding the necessary provincial permits. This approach is dubious at best. The courts could not be expected to uphold such actions by a government that gave up its jurisdiction through this agreement, only to use indirect means to unilaterally take it back.

A final objection is that a B.C. process would be a costly duplication of Ottawa's process. The fact is, however, that this action would never have been necessary had the B.C. government not agreed to such a one-sided agreement in the first place.

Bluntly put, the Liberals gave up B.C.'s rights in a way that made it difficult to take them back. But taking them back is the right thing to do.

The only responsible way that B.C. can now reassert control of our own economic and environmental destiny is to exit the equivalency agreement and conduct our own "made in B.C." review of the Enbridge pipeline proposal.

That is what Dix has committed to do and in my opinion, this action is necessary for the protection of vital B.C. interests.

Murray Rankin is a practising lawyer and a former law professor of public law and environmental law. He is acting as a volunteer adviser to B.C. NDP leader Adrian Dix on legal issues relating to the proposed Northern Gateway pipeline.