A lawyer for the B.C. government says the province knows it cannot stop the Trans Mountain pipeline expansion, but it can enact environmental laws to mitigate the harm it may cause.
B.C.’s Court of Appeal is considering a reference case filed by the province that asks if it has jurisdiction to regulate the transport of oil through its territory and restrict bitumen shipments from Alberta.
Joseph Arvay, who represents B.C., told a panel of five judges on Monday that his opponents in the case are essentially saying provinces have no power to bring in laws that reduce the risk of inter-provincial projects.
“They (are all) saying just one thing. It is this: that even if the pipelines or the railways they own or operate create a risk of catastrophic environmental harm because of the substance that they carry, the province is nevertheless powerless to enact laws to prevent that risk from materializing,” he said.
“We say that the province is not required to accept such a fate, and that the province can be proactive in doing what it can to protect the environment.”
The case asks if proposed amendments to B.C.’s Environmental Management Act are valid and if the province has authority to control the shipment of heavy oils based on the impact spills could have on the environment, human health or communities.
Prime Minister Justin Trudeau and Alberta Premier Rachel Notley have said Ottawa, not the provinces, has the authority to decide what goes in trans-boundary pipelines.
A five-day hearing began Monday and the Canadian government has not yet delivered arguments. Alberta, Saskatchewan, Trans Mountain Corp. and the Railway Association of Canada are among 13 parties that have filed documents supporting the federal government in the case.
Arvay told the judges that B.C. has no “axe to grind” against pipelines and the proposed amendments are not aimed at blocking the project.
“The purpose was never to prevent the construction or operation of the pipeline. The purpose and effect was always to protect the environment,” he said.
He outlined a number of cases that he said have established legal precedent for B.C. to enact laws that mitigate the risks of trans-boundary projects and hold companies liable for the clean up of accidents.
One such case was in 1899, when a court held that provinces and municipalities could require the Canadian Pacific Railway to keep ditches alongside its tracks clear of dirt and rubbish to prevent damage to adjacent properties, he said.
The Appeal Court judges, particularly Justice Harvey Groberman, repeatedly questioned Arvay on his arguments and interpretation of the case law.
The federal government has purchased the Trans Mountain pipeline for $4.5 billion. The expansion would triple the capacity of the line that runs from the Edmonton area to Burnaby, B.C., and increase tanker traffic in Burrard Inlet seven-fold.
Arvay told the judges a spill of diluted bitumen in B.C. would have disastrous impacts on Indigenous communities, animals, birds, property and water.
The National Energy Board heard differing opinions about the likelihood of a spill, but B.C. has the right to take precautions, he said.
“We know that things don’t go according to plan. Accidents happen,” Arvay said.
The energy board recently ruled the project is in the Canadian public interest despite adverse effects to endangered southern resident killer whales and related Indigenous culture.
Arvay said the board has concluded that the benefits of the project are national and regional in scope, but that some local communities would shoulder the burdens of the expansion.