Canada: BC Court Of Appeal Rules Legislation With The Sole Effect Of Setting Conditions For Trans Mountain's Pipeline Is Not Within BC's Authority.

On May 24, 2019, the BC Court of Appeal released a unanimous decision in Reference re Environmental Management Act (British Columbia), 2019 BCCA 181. At issue in this reference case was a proposed amendment to BC's Environmental Management Act ("EMA") dealing with "hazardous substance permits" that would give BC permitting authority over the Trans Mountain pipeline.

While the Court readily acknowledged that "environmental protection" is shared jurisdiction of the provinces and federal government, it found that the proposed amendment to the EMA was in pith and substance related to the regulation of an interprovincial (or federal) undertaking and therefore not within provincial authority.

The Court explained that although the amendment "is framed as a law of general application, it is intended, and (more importantly) its sole effect is, to set conditions for, and if necessary prohibit, the possession and control of increased volumes of heavy oil in the Province" (Para. 94).

The fact that heavy oil will enter the Province only via Trans Mountain's interprovincial pipeline and railcars destined for export, led the Court to conclude that the proposed amendment "does cross the line between environmental laws of general application and the regulation of federal undertakings" (Para. 101).

The Court reasoned that even if the amendment was not intended to single out the Trans Mountain pipeline, in effect it does so: "It is legislation that in pith and substance relates to, and relates only to, what makes the pipeline 'specifically of federal jurisdiction'" (Para. 101).

The Court found that both the law relating to the division of powers and the reality of the Trans Mountain pipeline project lead to the conclusion that "the pith and substance of the proposed [amendment] is to place conditions on, and if necessary, prohibit, the carriage of heavy oil thorough an interprovincial undertaking." Such legislation does not in its pith and substance relate to "Property ... in the Province" or to "Matters of a merely local or private Nature", but to Parliament's jurisdiction in respect of federal undertakings under s. 92(10) of the Constitution Act." (Para. 105).

A full copy of the decision can be found here: Reference re Environmental Management Act (British Columbia), 2019 BCCA 181 (CanLII)

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