Premier Jason Kenney speaks about Bill 12, the turn-off-the-taps legislation, during a press conference in the media room in the Alberta Legislature in Edmonton, on Wednesday, May 1, 2019.
Ian Kucerak / Postmedia
It was just over a year ago that B.C. filed its reference case seeking clarity on that province’s ability to regulate and restrict the flow of bitumen across its territory. At the time, B.C.’s attorney general said “one of the big factors” in going to the B.C. Court of Appeal was to “get finality around this as soon as possible.”We do indeed now have clarity in the form of a resounding legal defeat for the B.C. government. That same attorney general has gone from eagerly seeking the wisdom of the court of appeal to implying that these five justices simply don’t understand the legal issues at play here. Frankly, it was always wishful thinking on B.C.’s part to entertain the notion of superseding obvious federal jurisdiction.Here in Alberta, news of the unanimous verdict was most welcome and the delightful 65-page dismantling of B.C.’s arguments was cause for more than a little schadenfreude. But lost amid all the elation were some red flags about Alberta’s own constitutionally dubious legislation.Premier Jason Kenney tweeted, “Make no mistake, today’s victory for Alberta in the #TMX court ruling is a victory for all Canadians.”In a shot at B.C. Premier John Horgan’s previous vow to use “every tool in the toolbox” to stop the Trans Mountain pipeline expansion, NDP Leader Rachel Notley tweeted, “Turns out BC’s toolbox was more Fisher Price than DeWalt.”And indeed, B.C.’s court reference was rather lame, especially in contrast with Horgan’s tough talk.So what, then, was the point of Alberta’s Bill 12?The argument for passing and then proclaiming the so-called “turn off the taps” law was that B.C.’s pipeline intransigence was such a threat to TMX that it called for desperate measures. If B.C. was going to kibosh TMX, then we needed to hit them where it hurts, economically speaking.However, the obvious weaknesses in B.C.’s case, as laid bare in that ruling, show that B.C. is no threat. In other words, assuming Ottawa is still prepared to move forward on TMX, there’s very little that B.C. can do about it. In fact, there would be some delicious irony in the project proceeding with Horgan still at the helm.And while the B.C. Court of Appeal decision is useful in exposing the emptiness of Horgan’s toolbox, it also underscores some potential legal issues for Alberta’s Bill 12. If B.C.’s argument that it can regulate an interprovincial pipeline is going to get laughed out of court, are we so sure that our own attempt to regulate an interprovincial pipeline won’t, too?For example, the court was less than impressed with B.C.’s assertion that its proposed regulations weren’t singling out TMX when clearly they were. Alberta has tried to argue that Bill 12 doesn’t specifically mention B.C., but again it seems pretty clear what the target of the law is.Moreover, though, the emphasis on the importance of the federal jurisdiction and power as spelled out in sections 91 and 92 of the Constitution Act create some obvious problems for Bill 12. As the ruling notes, “unless the pipeline is contained entirely within a province, federal jurisdiction is the only way in which it may be regulated.”It’s true that provincial jurisdiction over natural resources is clearer than the environmental regulation jurisdiction B.C. was trying to claim. However, refined fuel would likely fall outside of that and instead land squarely in the very clear federal jurisdiction over the regulation of trade and commerce.It was always a weird look to illustrate B.C.’s hypocrisy over both wanting and rejecting resources by engaging in our own hypocrisy by denouncing and embracing the idea that provinces should intrude on federal jurisdiction.Even if one were to argue that Bill 12 was a backup plan to the unlikely event of a B.C. court victory, we now have confirmation of its humiliating defeat. Time to turn off the “turn off the taps” law.“Afternoons with Rob Breakenridge” airs weekdays 12:30-3:30pm on 770 CHQR firstname.lastname@example.org Twitter: @RobBreakenridge