LEXPERT MAGAZINE
|
Q3 2019 19
REFERENCE RE ENVIRONMENTAL
MANAGEMENT ACT (BRITISH
COLUMBIA), 2019 BCCA 181
DECISION DATE: MAY 24, 2019
e British Columbia Court of Appeal
decided unanimously that amendments
proposed by British Columbia to the En-
vironmental Management Act (B.C.) that
would have required the Trans Mountain
expansion project ("TMX Project") to
obtain a permit from the BC government
were unconstitutional. e court's deci-
sion will have important implications for
all provincial regulation of any works and
undertakings, such as pipelines or railways,
that cross provincial boundaries. It also has
an important impact on Canada's energy
industry and is at the centre of one of the
most significant political issues in Canada.
e proposed amendments sought to
regulate the possession of "heavy oil" in
British Columbia, including the type of
heavy crude and diluted bitumen that will
be transported through the TMX Project.
e amendments applied only to persons
who possessed more heavy oil in the prov-
ince than they had between 2013 and 2017.
It prohibited such possession unless the
person obtained a permit from a provincial
official. Using the permit, the official could
place a variety of conditions on the person's
possession of heavy oil.
e court held that the purpose and ef-
fect of the proposed amendment was to
regulate interprovincial undertakings like
the TMX Project. As a result, it was outside
British Columbia's constitutional authority.
e court found that the TMX Project is
"not only a 'British Columbia project'" but
one that "affects the country as a whole and
falls to be regulated taking into account the
interests of the country as a whole."
e court reasoned that "it is simply
not practical — or appropriate in terms of
constitutional law — for different laws and
regulations to apply to an interprovincial
pipeline (or railway or communications
infrastructure) every time it crosses a bor-
der." e Constitution gives the federal
Parliament authority over interprovincial
undertakings so that "a single regulator
[may] consider interests and concerns be-
yond those of the individual province(s)."
e Attorney General of British Colum-
bia has filed an appeal of the decision to the
Supreme Court of Canada.
e Interested Persons, Consortium
of Energy Producers were represented by
Blake Cassels & Graydon LLP, with a
team comprised of William Kaplan, QC,
Cathy Beagan Flood, Ben Rogers, Peter
Keohane, Joanne Lysyk, Laura Cundari
and Christopher DiMatteo.
Attorney General of British Columbia
was represented by Joseph Arvay, QC,
Catherine Boies Parker, QC, and Derek
Ball of Arvay Finlay LLP, and Gareth
Morley of the BC Ministry of Justice.
Attorney General of Canada was repre-
sented by Jan Brongers, B.J. Wray, Chris-
topher Rupar, and Jonathan Khan of Jus-
tice Canada.
e Interested Person, Attorney Gener-
al of Alberta was represented by Peter Gall
and Andrea Zwack of Gall Legge Grant
Zwack LLP.
e Interested Person, Attorney Gen-
eral of Saskatchewan was represented by
omas Irvine and Katherine Roy of the
Ministry of Justice (Saskatchewan) Con-
stitutional Law Branch.
Counsel for the Interested Person, City
of Vancouver was Susan Horne.
e Interested Person, City of Burnaby
was represented by Gregory McDade, QC
and Michelle Bradley of Ratcliff & Com-
pany LLP.
e Interested Person, EcoJustice Can-
ada was represented by Harry Wruck, QC
and Kegan Pepper-Smith of EcoJustice
Canada Society.
e Interested Persons, e Council
of the Haida Nation were represented by
David Paterson of Paterson Law Office
and Terri-Lynn Williams-Davidson of
White Raven Law Corporation.
e Interested Persons, e Heiltsuk
First Nation were represented by Lisa Fong
of Ng Ariss Fong, Lawyers, and Kather-
ine Webber of the Ministry of Attorney
General (BC).
e Interested Person, e Assembly
of First Nations was represented by Justin
McGregor of Alexander Holburn Beau-
din + Lang LLP.
e Interested Persons, e Little
Shuswap Lake Indian Band were represented
by Arthur Grant of Grant Kovacs Norell.
e Interested Person, Trans Mountain
Pipeline ULC was represented by Maureen
Killoran, QC and Olivia Dixon of Osler,
Hoskin & Harcourt LLP.
e Interested Persons, Beecher Bay
First Nations, Songhees First Nation and
T'Sou-Ke Nation were represented by
Robert Janes, QC and Aria Laskin of JFK
Law Corporation.
e Interested Persons, Lax Kw'alaams
Band were represented by Christopher
Harvey, QC and Robert Wickett, QC of
Mackenzie Fujisawa LLP.
Counsel for the Interested Person, Can-
adian Association of Petroleum Producers
was Brad Armstrong, QC, Will Shaw
and Lewis Manning of Lawson Lundell
LLP, and Nicholas Hughes of McCarthy
Tétrault LLP.
e Interested Person, Canadian Fuels
Association was represented by Geoffrey
Cowper, QC and Daniel Byma of Fasken
Martineau DuMoulin LLP.
Counsel for the Interested Person,
Canadian Energy Pipeline Association
was Michael Marion of Borden Ladner
BC Court of Appeal rules amendments proposed by British Columbia to the Environmental Management Act,
which would have required Trans Mountain expansion project to obtain a permit from the B.C. government,
were unconstitutional; Ontario Superior Court dismisses a proposed privacy class action resulting
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