Did the SCC get it right technically, but miss the rising tide on factual context?
On January 16, 2020, the Supreme Court of Canada (SCC) refused British Columbia (BC)’s request for leave to appeal their loss at the BC Court of Appeal (BCCA) in Reference re Environmental Management Act (British Columbia), 2019 BCCA 181 (CanLII).
The case turned on the division of powers, sections 91 and 92 of the Constitution Act, 1867, with Justice Rowe saying at the hearing on January 9, 2020 ‘[t]oday it’s heavy oil, tomorrow it could be anything else..”
The SCC is technically correct about division of powers, and the factual circumstances were brutal for contracted BC lawyer Joe Arvay O.C., Q.C., one of the top Constitutional lawyers in the country. The fact that the BC Premier, John Horgan, had promised in the 2017 election campaign “to use every tool in our tool box” to stop the construction of the Trans Mountain pipeline expansion (TMX) didn’t help BC any, who then had to try to argue that the impugned measures were not in fact designed to block just the TMX (which would clearly be unconstitutional), but were of a general purpose to protect the environment in keeping with BC’s constitutional jurisdiction under the Constitution Act, 1867.
Apparently the SCC Justice’s pushback was so clear that Arvay conceded by late afternoon he wasn’t likely going to win.
At the BCCA Justice Newbury summed up the issue as follows;
 The protection of the environment is one of the driving challenges of our time. No part of the world is now untouched by the need for such protection; no government may ignore it; no industry may claim immunity from its constraints. 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.  British Columbia asserts that it may regulate the pipeline in the interests of the environment — not exclusively, but to the extent that it may impose conditions on, and even prohibit, the presence of “heavy oil” in the Province unless a director under the Environmental Management Act issues a “hazardous substance permit” under the proposed addition that is the subject of the reference.
BC argued that regulating the presence of bitumen and heavy oil fit under the headings of “property and civil rights” (92(14)) and “Matters of a merely local or private Nature ..” (91(16)), and the principle of “subsidiarity,” which the BCCA described as the principle that “on occasion that certain functions are best carried out by the level of government closest to the citizens affected.”
Canada argued that the matter related to ““Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province” s 91(29) and 92(10)(a) ..
It is true, and an easy point for Crown lawyers to defend, that interprovincial works are a federal head of power. But, as Peggy Lee sang in 1969 – is that all there is?
Ecojuctice lawyer Harry Wruck, QC, argued that “[w]ithout a viable environment we cannot have a Constitution, we cannot have a nation based on laws, we cannot have institutions, we cannot have a society..”
BC chose to argue the case on the basis that BC was not opposed to oil, but just worried about spills, saying “[t]he only concern the premier, the attorney general and the members of the government have had is the harm of bitumen. It’s not about pipelines. They’re not anti-pipelines, they’re not anti-Alberta, they’re not anti-oilsands, they’re not anti-oil…”
Was that the best strategy? BC’s unfortunate support of LNG and other oil and gas projects made it the easiest path to take, as did the facts of how the law was designed and drafted. But what if they had taken the other strategic path, and argued that they were in fact blocking this pipeline, that they were anti-pipeline, they were, in fact “anti-oil,” because – we are in a climate emergency, and it is the provinces Constitutionally mandated duty to protect property and civil rights, both of which will be directly impacted by the effects of climate change flowing from TMX?
They could have argued that the provinces also have a Constitutionally mandated duty to manage “Public Lands belonging to the Province and of the Timber and Wood thereon,” – which will equally be impacted and undermined by the climate impacts of TMX. How can the province manage forests that are burning, underwater, or dying of drought? By stopping the TMX, that’s how. They would have had to also argue that the feds have failed, regarding TMX, to take into account Canada’s international commitments under Paris, and our moral and legal duty to reduce emissions – a pretty easy branch of the argument to prove.
Would taking that strategic path have improved their chances of winning? Probably not – their chances would have gone from zilch to zilch. But would it have forced the courts grappling with the Reference to deal with the core issues? Possibly.
SCC Justice Rowe was also quoted as saying, regarding the economic impact of the court ruling in BC’s favour, “[t]here will be nothing. The uncertainty will kill the business case” (of projects across Canada).
What if the province had also made the economic argument head-on: that climate impacts are the issue, it affects all heads of power, both federal and provincial, and that the long-term business case for allowing climate change to continue to worsen favours allowing BC to regulate its climate.
The dissent in the recent Juliana case (to be subject of another post) makes the argument, and shows that judges can accept it –
… the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.
Regarding TMX the line could read, “[i]t is as if an asteroid were barreling toward Earth and the government decided to buy and operate a chunk of asteroid to add to it..” (while at the same time wringing their hands about how terrible it all is, and committing to do something to stop it… ).
Our 1867 Constitution never imagined we could destroy the whole Earth.. the law must adapt. As the SCC said in Hydro-Quebec the law must “be able to keep pace with and protect our emerging values.”