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OIL AND GAS - Pipelines - Inter-provincial

Tuesday, June 25, 2019 @ 6:26 AM  


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Constitutional reference by the Province of British Columbia on the constitutionality of proposed amendments to the Environmental Management Act. The Province proposed to amend the Act in response to the planned Trans Mountain pipeline expansion, an interprovincial undertaking for the transportation of heavy oil. The amendments required hazardous substance permits for persons in possession of heavy oil above a defined threshold. They allowed the director to attach conditions to the permits and allowed for prosecution of persons in contravention.

HELD: It was not within the authority of the Legislature to enact the proposed amendments to the Act. The amendments crossed the line between environmental laws of general application and the regulation of federal undertakings. They had the potential to affect the entire operation of the pipeline as an interprovincial carrier and exporter of oil. The amendments were targeted legislation that in pith and substance related to the regulation of an interprovincial, or federal, undertaking. It was not practical or appropriate for different laws and regulations to apply to an interprovincial pipeline every time it crossed a border. Jurisdiction over interprovincial undertakings was allocated exclusively to Parliament by the Constitution Act to deal with this type of situation, allowing a single regulator to consider interests and concerns beyond those of individual provinces. The amendments did not in pith and substance relate to property in the province or matters of a merely local or private nature. They were beyond provincial jurisdiction.

Reference re Environmental Management Act (British Columbia), [2019] B.C.J. No. 925, British Columbia Court of Appeal, R.J. Bauman C.J.S.C., M.V. Newbury, H. Groberman, D.C. Harris and L.A. Fenlon JJ.A., May 24, 2019. Digest No. TLD-June242019005