What otherwise might be described as a family squabble seems increasingly likely to escalate into a constitutional challenge following British Columbia’s announcement that it would propose “regulatory restrictions to be placed on the increase of diluted bitumen (dilbit) transportation.” The announcement elevates a simmering dispute between the NDP governments of British Columbia and Alberta to a furious boil by putting at risk Kinder Morgan’s Trans Mountain Pipeline expansion, a project Alberta needs in order to grow its oil exports.
British Columbia’s proposed restrictions are framed in the context of a larger regulatory initiative to review land and marine spill response times and emergency response plans. However, a fuller context for the announcement can be found in the 2017 Confidence and Supply Agreement signed by the provincial Green Party and the NDP, giving the NDP a slim majority in the Legislature. Part of that agreement promises that the New Democrats will “[i]mmediately employ every tool available to the new government to stop the expansion of the Kinder Morgan pipeline, the seven-fold increase in tanker traffic on our coast, and the transportation of raw bitumen through our province.”
The pipeline in question is under federal jurisdiction and has already secured federal approval to proceed. British Columbia argues that it has a responsibility to ensure that carriers of hazardous materials are fully prepared and able to mitigate the impact of spills.
So far, federal Natural Resources Minister Jim Carr has taken the diplomatic high road. In a statement issued in response, he said “[w]e stand by our decision to approve the Trans Mountain Expansion, just as we stand by our commitment to British Columbians and all Canadians to implement world-leading measures to protect the environment and our coasts,” later adding “[t]he decision we took on the Trans Mountain Expansion remains in the national interest. And it was a decision based on facts and evidence – this has not changed.” Prime Minister Justin Trudeau later weighed in, promising in a radio interview that the pipeline will be built.
British Columbia’s announcement came from Environment and Climate Change Strategy Minister George Heyman, not Premier John Horgan who was scheduled to return from an Asia trade mission on January 31, 2018. In a January 30, 2018 news conference, Alberta Premier Rachel Notley held out hope that the two premiers would be able to work things out, but that hope appears to have been in vain. Following an emergency Cabinet meeting, on February 1, 2018 Notley fired her first salvo in reply, suspending talks with British Columbia on a large electricity purchase plan.
So far, nothing substantive has actually happened. British Columbia has only announced its intention to consult on regulations and to limit the flow of dilbit while that is underway. Notley calls it political game-playing. “The B.C. government has every right to consult on whatever it pleases with its citizens. It does not have the right to rewrite our Constitution and assume powers for itself that it does not have,” she said.
Notley said the plan breaches a number of laws, including the Constitution, and that it will weaken investor confidence across the country by demonstrating that regulatory decisions cannot be relied upon. She also said she had been given advance notice by British Columbia that it would move forward with a review of spill response, but that the troubling piece about restricting the expansion of dilbit transportation took her by surprise.