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B.C.’s plan to restrict the transport of bitumen not illegal — yet: legal expert

B.C.’s plan to restrict the transport of bitumen in the province, impacting Kinder Morgan’s Trans Mountain pipeline project, is not illegal — at least not yet — a University of B.C. legal expert said Tuesday.

Jocelyn Stacey, assistant professor in the Peter A. Allard School of Law, noted that the details of the NDP government’s plan are not yet known, but said it could ultimately be challenged by the Alberta government or Kinder Morgan before the National Energy Board.

Stacey said the B.C. government could bring a “reference case” to the courts in this province, a way of obtaining a legal opinion on the constitutionality of its restriction.

“It’s absolutely constitutional for B.C. to regulate on environmental protection and emergency response,” Stacey said. “But if that provincial measure impairs an essential part of a federal project … if it’s found there is a conflict, that it would impair the Kinder Morgan pipeline, then constitutionally won’t apply.

“It’s important that they (B.C. government) are testing this constitutional grey area. I think what’s going to happen is more litigation until we get a definitive court case that tells us what kind of restriction is an actual impairment on a federal pipeline.”

While it’s normal for a major project to overlap the laws of various levels of government, the problem is when those laws create a conflict, she added. “It’s not that unusual from a constitutional law perspective. The norm is overlapping law, and that those laws continue to apply to the extent possible.”

Kinder Morgan successfully argued that the City of Burnaby was wrongly delaying its project. The NEB issued an order in December 2017 declaring the company was not required to comply with two sections of Burnaby’s bylaws related to preliminary plan approvals and to tree cutting permits.

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As for B.C.’s NDP government taking a second look at a project approved by the former B.C. Liberal government, there’s nothing, per se, wrong with that, Stacey said.

“Even after a company receives an environmental assessment certificate, it still has to comply with all the hundreds of regulations … The mechanisms proposed by the B.C. government would just add to that regulatory landscape.”

The province vowed Jan. 30 to restrict expanded shipments of diluted bitumen from Alberta’s oilsands until the province is satisfied spills can be successfully cleaned up.

Environment Minister George Heyman said “this is about the product,” referring to diluted bitumen, and the potential harm from a spill either inland or off the coast and the ability to clean up a spill.

“We say we don’t have enough information and we need more,” Heyman said, “and until we have more, we’re going to restrict any increase in its transportation.”

That restriction is part of a set of proposed spill response regulations to be put out for consultation, including requirements for spill response times, geographic response plans and restitution to local communities.

Alberta NDP Premier Rachel Notley has decried such regulations as illegal and unconstitutional measures levelled against an already approved project. She has instructed the province’s liquor wholesaler to stop importing wines from B.C. in retaliation.

lpynn@postmedia.com

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