By Martha Hall Findlay
Published in the Globe and Mail

May 27, 2019

Martha Hall Findlay is president and CEO of the Canada West Foundation

The five justices of the British Columbia Court of Appeal have, unanimously, ruled that B.C.’s recent effort to limit the amount of heavy oil crossing the province is unconstitutional.

This is a win for Canada – regardless of whether you support pipelines and the oil industry, or you are a “keep-it-in-the-grounder” or, like many of us, you recognize the need to co-operate to find sustainable ways to harness our resources. The key is that this decision is a win for how this country is supposed to work, in reinforcing the importance of the separation of federal and provincial jurisdiction set out in sections 91 and 92 of the Constitution.

The province had proposed amendments to the BC Environmental Management Act, R.S.B.C. 2003, which would establish the power to regulate the flow of bitumen across the province through a system of permits.

In short, the province claimed that, to protect its environment, it should have the right to affect what it acknowledged was a federal undertaking. The federal government and others argued that the proposed amendments were clearly targeted at stopping the Trans Mountain pipeline expansion (TMX), which a province, constitutionally, would not have the right to do. Part of the challenge is that “environmental protection” is not a head of power allocated to either level of government, but is “shared.” Valid environmental protection legislation is on the books of all provinces and of Canada.

To its credit, the B.C. government asked the court to rule on whether it has the constitutional power to do so. The court confirmed that it did not.

It determined that the amendment was targeted legislation that in pith and substance (its “true nature and character” in non-legalese) related to the regulation of an interprovincial undertaking (which comes under federal jurisdiction) ? TMX.

The amendment thus lay beyond provincial jurisdiction.

The court made a few key points: “This reference is not about whether the planned Trans Mountain pipeline expansion (“TMX”) should be regulated to minimize the risks it poses to the environment ? that is a given. Rather, this reference asks which level or levels of government may do so under our Constitution, specifically ss. 91 and 92 of the Constitution Act, 1867.”

The court said the more recent Canadian approach of more flexible and “co-operative” federalism, but that it cannot override or modify the separation of powers. Indeed, the Supreme Court itself has imposed certain limits.

From the Reference re Securities Act (2011): “… notwithstanding the Court’s promotion of co-operative and flexible federalism, the constitutional boundaries that underlie the division of powers must be respected. The ‘dominant tide’ of flexible federalism, however strong its pull may be, cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state.”

The B.C. Court of Appeal concluded that, “The TMX project is not only a ‘British Columbia project’. The project affects the country as a whole, and falls to be regulated taking into account the interests of the country as a whole.”

Some may dismiss the provisions in the Constitution that set out federal and provincial jurisdiction as 150-year-old thinking – the suggestion being that things are different now. But those provisions are just as important ? even more so ? today. Ignoring the fact that said thinking and resulting provisions are more than 150 years old, they remain the law of the land – and sections 91 and 92 of the Constitution have served this country very well. They established, rather brilliantly, a globally unique regime for compromise and co-operation that has been critical to the economic and social prosperity of this country.

And lest we see this case as unusual, the current headlines are full of examples of how quick we are to turn to the Constitution, and to rely on it. We need look no further than Premier John Horgan launching a constitutional challenge to Alberta’s legislation that could “turn off the taps” of gasoline to B.C.

The drafters of the Constitution, in particular sections 91 and 92, understood – presciently – that the pull of local politics would often encourage politicians to focus on and defend local issues, sometimes to the detriment of things that would be of national interest. But the country needed issues of national interest to take precedence. A built-in law of the land that forces compromise when the national interest is at stake. And with this court case, the national interest prevailed.

Martha Hall Findlay is president and CEO of the Canada West Foundation.