Law Times

Law Times • may 7, 2018 Page 9 www.lawtimesnews.com Case stems from dispute over pipeline extension Core constitutional arguments at centre of B.C. case BY SHANNON KARI For Law Times C onstitutional law prec- edents that date back several years or even decades will be at the centre of a reference by the Brit- ish Columbia government to its Court of Appeal on the validity of proposed amendments to the En- vironmental Management Act. Core constitutional concepts such as the national concern doctrine and the federal peace, order and good government power are what the court will have to analyze in a case that stems from a dispute over the proposed $7.4-billion Trans Mountain pipeline extension. While the legal doctrines are not new, the stakes are very significant for inter-provincial mega projects. In this instance, the B.C. government is pitted against Alberta and the federal government, with Prime Minis- ter Justin Trudeau insisting the project will go ahead. Andrew Lokan, a partner at Paliare Roland Rosenberg Roth- stein LLP in Toronto, says the scope of B.C. legislation is what the Court of Appeal will look at to determine if it is valid. "To the extent that there is reasonable regulation that re- spects the Constitution, the courts will have a high toler- ance," says Lokan, who special- izes in constitutional law. "Provinces can regulate; they cannot frustrate," he explains. The B.C. government sub- mitted the reference to its Court of Appeal on April 26. It also re- tained noted civil liberties and constitutional lawyer Joseph Ar- vay to act for it in the case. The amendments would give the province more power to reg- ulate the impacts of heavy oil if there is a spill. Hazardous sub- stance permits must be obtained and certain conditions followed, including payment to local and First Nations governments in the event of a spill. The province would also have the power to revoke or suspend the permits. B.C. Attorney General David Eby issued a statement after the reference was issued that sug- gested the courts are the best forum to determine the extent of the provincial powers in this area. "We have been clear from the outset that the appropriate way to resolve disagreements over ju- risdiction is through the courts, not through threats or unlawful measures to target citizens of an- other province," Eby stated. Alberta Premier Rachel Not- ley, who is a lawyer, stated that the actual goal of the B.C. legisla- tion was to "harass" the pipeline project and that it was "several miles" outside the powers of that province. The country's economy will "grind to a halt faster than you can say free trade," Notley said in an Edmonton Journal report after the reference was submit- ted. Lokan says the B.C. govern- ment will have an uphill battle in convincing the court that its legislation is within provincial powers under the constitution. "It is pretty clear that the fed- eral government has a strong ba- sis for jurisdiction. It can declare the project to be a federal work or undertaking," says Lokan. As well, the paramountcy power of the federal government would prevail in any conf lict between provincial and federal legislation, he says. The decision of the Supreme Court of Canada in 1988 in R. v. Crown Zellerbach Canada Ltd., Lokan says, dealt with many of the same constitutional principles. In that case, the B.C. govern- ment challenged the validity of the federal Ocean Dumping Act, which prohibited the dumping of any substance at sea, except in accordance with the terms and conditions in a permit. The Supreme Court found that the federal government did have authority to regulate pol- lution in marine waters, even within the territorial limits of a province, because of its extra- provincial implications and the national concern doctrine. "The national concern doc- trine applies to both new matters which did not exist at Confed- eration and to matters which, although originally matters of a local or private nature in a prov- ince, have since, in the absence of national emergency, become matters of national concern," wrote Justice Gerald Le Dain in the majority judgment. "For a matter to qualify as a matter of national concern in either sense it must have a single- ness, distinctiveness and indivis- ibility that clearly distinguishes it from matters of provincial con- cern," he added. In another Supreme Court decision in the 1980s, Refer- ence re Upper Churchill Water Rights Reversion Act, legisla- tion by the Newfoundland gov- ernment was found to be invalid. The form of the act appeared to be valid, but its substance was outside the constitutional au- thority of the province and an attempt to negate the impact of a long-term hydroelectric con- tract previously signed with Hydro Quebec. "Where, however, the pith and substance of the provincial enactment is the derogation from or elimination of extra- provincial rights then, even if it is cloaked in the proper con- stitutional form, it will be ultra vires. A colourable attempt to preserve the appearance of con- stitutionality in order to conceal an unconstitutional objective will not save the legislation," wrote Justice William McIntyre for the court. In recent comments express- ing his support for the pipeline expansion, Trudeau explicitly stated that there is a "national in- terest" in responsibly transport- ing resources to new markets. Kinder Morgan, the com- pany responsible for the pipeline project, has set a deadline of May 31 for the federal government to come up with a clear plan for it to continue. The B.C. court reference that has just been announced may have considerations other than clarifying the scope of the province's constitutional pow- ers with respect to environment, Lokan says. "It could be that the play here is more of a political one." LT FOCUS 6 TH ANNUAL ANTI-BRIBERY AND CORRUPTION COMPLIANCE MAY 10 | TORONTO & WEBINAR www.lexpert.ca/legal-programs/anti-bribery 1-877-298-5868 | 416-609-5868 | lexpert.questions@thomsonreuters.com DON'T MISS OUT — REGISTER TODAY COURSE LEADER: JOHN W. BOSCARIOL, MCCARTHY TÉTRAULT LLP • Introduction and overview of the anti-corruption landscape for Canadian companies • Anti-corruption enforcement: the view from the RCMP • The US foreign corrupt practices act (FCPA): what canadian companies need to know • An industry perspective on anti-corruption enforcement and compliance: The view from snc-lavalin • Perspective from in house counsel: key compliance challenges and solutions • Investigating potential breaches within the company and dealing with enforcement Lexpert-AntiBribery_LT_Apr30_18.indd 1 2018-04-25 10:00 AM Andrew Lokan says a B.C. court reference may have other considerations other than clarifying the scope of the province's con- stitutional powers with respect to environ- ment, such as a possible political purpose. For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern. Justice Gerald La Dain LawTimesNews.com Fresh Ontario legal news and analysis available on any device. Get More Online

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