Absolutely no one should be surprised that Attorney General David Eby was quick to declare the B.C. government will appeal the decisive court ruling against it over who controls what can flow through an interprovincial pipeline.
But the lack of emotion attached to his pronouncement was telling, another indication perhaps of the B.C. NDP’s chief desire that this issue just goes away, even with that pending appeal.
The NDP continues to walk a political tightrope on the pipeline expansion issue as it tries to placate environmental anti-pipeline activists within the party while at the same time declaring support for the resource industry.
The party has long said it would use “every tool in the toolbox” to fight the Trans Mountain pipeline expansion, but as I have noted here before, the toolbox turned out to be a very small one containing a rather weak and tepid “tool.”
That tool was this court case, considered a bit of a Hail Mary pass pretty much from the start. The government provided no legal evidence that a province could control what is a federally regulated entity, i.e. an inter-provincial pipeline.
Nevertheless, the NDP had to do something – anything – to make it look like it was trying to block the pipeline. Environment Minister George Heyman sheepishly admitted early on upon taking office that there was absolutely nothing “legally” the government could do to stop its construction.
Hence, the rather novel court argument about jurisdiction over something the government had to live with. As expected, the B.C. Court of Appeal made short work of it, giving the argument a 5-0 drubbing.
Of course, for the NDP government there is always the faint hope that the Supreme Court of Canada will overturn the Court of Appeal’s findings. Certainly, the B.C. Court of Appeal has lost before at that level (in fact, two of its unanimous decisions this year alone were overturned by the highest court). However, given the voluminous case evidence and precedents provided by Justice Mary Newbury in her 50-page ruling, it seems unlikely the B.C. government’s arguments on this issue will sway the highest court to make new constitutional law.
Indeed, many of Newbury’s conclusions seem hard to argue with and often consist mainly of common sense.
“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 of communications infrastructure] every time it crosses a border,” she wrote.
As for the NDP’s favorite argument (that B.C.’s interests should be accorded more weight), she had this to say: “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.”
Hard to see the SCOC disagreeing with passages like those.
Nevertheless, the NDP has to exhaust its legal options no matter how dim the prospects of ultimate victory are. It may all be a waste of tax dollars, but it is political capital that the NDP is more concerned about.
And an appeal will allow B.C. Premier John Horgan to be able to say, “I did what I could” to stop the pipeline and that will be the end of things.
Some environmental groups will be upset, but they were upset with the decisions to finish the Site C dam and woo the LNG industry into this province and that opposition mattered little at the end of the day.
Some have mistakenly thought that launching the appeal was designed to keep the B.C. Green Party in check to ensure it continues keeping the NDP in power. That is a misread of the reality that has emerged about the relationship between the two parties (for all their criticism and complaining, it has become quite clear the B.C. Greens will never take down this government).
No, this appeal of an apparent hopeless cause simply reflects the fact that the NDP had one more “tool” at its disposal and had to use it.
But once the appeal process is over, the party will no doubt be glad to move on from a fight that will end with a whimper, not a bang.
Keith Baldrey is chief political reporter for Global BC. Keith.Baldrey@globalnews.ca
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