VANCOUVER, May 24, 2019 – The B.C. Court of Appeal delivered its judgment today on whether the Government of British Columbia has the authority to amend its laws to limit the risk of spills of toxic substances such as diluted bitumen from interprovincial projects. The court found that enacting such an amendment lies beyond provincial jurisdiction because it was targeted at regulating the Trans Mountain expansion project.
The basis for the Court’s ruling is that B.C.’s proposed amendments have the potential to affect the operation of the Trans Mountain pipeline and stymie the pipeline’s ability to comply with overlapping conditions imposed by both levels of government governing its route, construction, cargo, safety measures, as well as spill prevention. The Court concluded that allowing a single regulator to consider these interests and concerns was the best solution and in accord with Parliament’s exclusive jurisdiction over interprovincial undertakings.
Following the release of the court’s decision, lawyer Kegan Pepper-Smith, who along with Harry Wruck, QC, represented Ecojustice in court proceedings, issued the following statement:
“All levels of government share the right and the responsibility to protect the environment.
“The Government of British Columbia’s proposed amendments to the Environment Management Act are intended to strengthen oil spill prevention, response, and remediation regime. Today’s court decision has denied the province the authority to adopt this regime and, as such, leaves B.C., its communities, and environment exposed to a potentially disastrous oil spill.
“There are many examples of how oil spills can cause widespread and irreversible harm to communities and the environment. In 2010, the Kalamazoo spill sent 3.2 million litres of bitumen into the environment, causing significant harm to birds, mammals, turtles and other wildlife. The reality is that we don’t understand just how damaging a similar spill would be in B.C.
“Ecojustice is disappointed by the outcome of today’s decision. The issue at the heart of this case goes far beyond a single pipeline project. What was at stake is the B.C. government’s ability to step in and enact laws that will better protect communities and the environment when federal measures fall short.
“During court proceedings, we argued that – given we are in the grips of ecological crisis – environmental protection should be recognized as an unwritten principle of our Constitution. Therefore, the provinces must be permitted to enact stronger environmental laws when the federal government does not offer sufficient protection, or vice versa.
“Ultimately, all levels of government share responsibility for passing and enforcing strong laws to keep communities and the environment safe, and to protect against the threats like oil spills. Today, the B.C. Court of Appeal denied the Government of British Columbia the ability to do just that.”
Ecojustice, Canada’s largest environmental law charity, participated in the hearing as an interested party.