At one point in early 2018, the Trans Mountain pipeline was 14-0 in court. The owners (then Kinder Morgan) had successfully defended their right-of-way and the authority of police to evict protestors who were blocking construction, to name just two principles courts had upheld.
All that got overturned last August by the Federal Court, which ruled the federal government should not have okayed construction of the project because the National Energy Board had failed to consider adequately the effects of increased tanker traffic on marine life (especially orcas) and failed to consult enough with First Nations.
So while Albertans should be thrilled with the unanimous win for Trans Mountain in the B.C. Court of Appeal on Friday, before we start opening the champers, maybe prosecco is good enough for now. In court it’s not how often you win, but rather whether you win the last appeal.
And the B.C. government has already said it will appeal Friday’s ruling to the Supreme Court.
On top of that, the court process is not the final step. Even if our highest court finally approves Trans Mountain, federal politicians will make the final call.
Alberta and the other participants supporting Trans Mountain could get a win in the Supreme Court that is every bit as big as the win in B.C. on Friday (as I suspect they will — eventually) and still the pipeline won’t go through unless whoever is the prime minister then decides to risk political capital on getting it built.
The Supreme Court will likely rule that Ottawa has jurisdiction over the interprovincial movement of goods – a jurisdiction that cannot be trumped by any province’s environmental concerns – and still the government of the day could decide it doesn’t want to incur the wrath of B.C. voters or call out the RCMP and military on the eco-activists who will inevitably blockade construction or sabotage bulldozers and cranes.
“Green” activists will continue to do everything needed to stop the pipeline no matter how constitutional the courts decide Trans Mountain is.
The B.C. court decision was overwhelming and resounding. All five judges on the panel agreed Ottawa had exclusive jurisdiction over pipelines that cross provincial boundaries and had been fully approved by federal regulators.
The B.C. court agreed with the B.C. government’s contention that environmental protection was at least as important as economic development, but then the justices added environmental protection was “’too important” to be left to a single province to rule on.
If a federal regulator does its job properly, and decides an interprovincial project is environmentally acceptable, that trumps any single province’s disagreement.
Environmental protection is “too diffuse to belong to one level (of government) exclusively or absolutely,” the five judges explained.
In short, the B.C. Court of Appeal win was so resounding, the justices even used some of the B.C. government’s own logic against it. It is hard to imagine the Supreme Court disagreeing with the B.C. court so fundamentally that it would overturn more than one or two small details of Friday’s decision.
Still, as satisfying as Friday’s win is, the pipeline’s supporters are back to where they were before last summer’s defeat: Trans Mountain now rises or falls on the willingness of Justin Trudeau and his cabinet to get it built.
This has been a good month for pipelines. Senate committees have recommended rejection of gutting of federal laws that would make new pipelines so unlikely investors would stay away from our oil patch and oilsands.
A new Alberta government far more committed to oil and gas development has been sworn in and has already begun taking a more aggressive approach.
But the burning question remains: Will the Trudeau Liberals move ahead?
Copyright Postmedia Network Inc., 2019
