As promised, the BC Government today submitted a reference question to the B.C. Court of Appeal seeking a decision on whether of not it has the right to regulate heavy oil transportation across our province. In particular, it has asked the B.C. Court of Appeal three questions:

1. Is it within the legislative authority of the Legislature of British Columbia to enact legislation substantially in the form set out in the attached Appendix?
2. If the answer to question 1 is yes, would the attached legislation be applicable to hazardous substances brought into British Columbia by means of interprovincial undertakings?
3. If the answers to questions 1 and 2 are yes, would existing federal legislation render all or part of the attached legislation inoperative?

As part of the submission, the province appended a potential amendment to the Environment Management Act (reproduced in the Appendix below) which it has asked the court to rule on.

The BC Green Caucus supports the government’s efforts in this regard and I append my media statement below.

Media Statement

Weaver statement on Kinder Morgan court reference case
For immediate release
April 26, 2018

VICTORIA, B.C. – Andrew Weaver, leader of the B.C. Green Party, issued the following response to the government’s court reference case.

“I am pleased to see the government is continuing to stand up for British Columbia,” said Weaver.

“Earlier this week, media reports uncovered further evidence that the approval process for this project was deeply flawed. It’s clear that the federal approval of this project was based on political calculation, not on evidence or the best interests of the public.

“There are significant gaps in scientific knowledge regarding the effects of a diluted bitumen spill. British Columbians are rightly concerned that a dilbit spill could significantly harm their health and safety, their local economy and their environment. Our caucus supports the government’s efforts to ensure these concerns are addressed and that our province is protected from hazardous materials that flow within its borders.”

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Media contact
Jillian Oliver, Press Secretary
+1 778-650-0597 | jillian.oliver@leg.bc.ca

Appendix

The following Part is added to the Environmental Management Act, S.B.C. 2003, c. 53:

PART 2.1 – HAZARDOUS SUBSTANCE PERMITS

Purposes

22.1 The purposes of this Part are

(a) to protect, from the adverse effects of releases of hazardous substances,

(i) British Columbia’s environment, including the terrestrial, freshwater, marine and atmospheric environment,
(ii) human health and well-being in British Columbia, and
(iii) the economic, social and cultural vitality of communities in British Columbia, and

(b) to implement the polluter pays principle.

Interpretation

22.2 The definition of “permit” in section 1 (1) does not apply to this Part.

Requirement for hazardous substance permits

22.3

(1) In the course of operating an industry, trade or business, a person must not, during a calendar year, have possession, charge or control of a substance listed in Column 1 of the Schedule, and defined in Column 2 of the Schedule, in a total amount equal to or greater than the minimum amount set out in Column 3 of the Schedule unless a director has issued a hazardous substance permit to the person to do so.

(2) Subsection (1) does not apply to a person who has possession, charge or control of a substance on a ship.

Issuance of hazardous substance permits

22.4

(1) Subject to subsection (2), on application by a person, a director may issue to the applicant a hazardous substance permit referred to in section 22.3 (1).

(2) Before issuing the hazardous substance permit, the director may require the applicant to do one or more of the following:

(a) provide information documenting, to the satisfaction of the director,

(i) the risks to human health or the environment that are posed by a release of the substance, and

(ii) the types of impacts that may be caused by a release of the substance and an estimate of the monetary value of those impacts;

(b) demonstrate to the satisfaction of the director that the applicant

(i) has appropriate measures in place to prevent a release of the substance,

(ii) has appropriate measures in place to ensure that any release of the substance can be minimized in gravity and magnitude, through early detection and early response, and

(iii) has sufficient capacity, including dedicated equipment and personnel, to be able to respond effectively to a release of the substance in the manner and within the time specified by the director;

(c) post security to the satisfaction of the director, or demonstrate to the satisfaction of the director that the applicant has access to financial resources including insurance, in order to ensure that the applicant has the capacity

(i) to respond to or mitigate any adverse environmental or health effects resulting from a release of the substance, and

(ii) to provide compensation that may be required by a condition attached to the permit under section 22.5 (b) (ii);

(d) establish a fund for, or make payments to, a local government or a first nation government in order to ensure that the local government or the first nation government has the capacity to respond to a release of the substance;

(e) agree to compensate any person, the government, a local government or a First Nations government for damages resulting from a release of the substance, including damages for any costs incurred in responding to the release, any costs related to ecological recovery and restoration, any economic loss and any loss of non-use value.

Conditions attached to hazardous substance permits

22.5 A director may, at any time, attach one or more of the following conditions to a hazardous substance permit:

(a) conditions respecting the protection of human health or the environment, including conditions requiring the holder of the permit

(i) to implement and maintain appropriate measures to prevent a release of the substance,

(ii) to implement and maintain appropriate measures to ensure that any release of the substance can be minimized in gravity and magnitude, through early detection and early response, and

(iii) to maintain sufficient capacity, including dedicated equipment and personnel, to be able to respond effectively to a release of the substance in the manner and within the time specified by the director;

(b) conditions respecting the impacts of a release of the substance, including conditions requiring the holder of the permit

(i) to respond to a release of a substance in the manner and within the time specified by the director, and

(ii) to compensate, without proof of fault or negligence, any person, the government, a local government or a First Nations government for damages referred to in section 22.4 (2) (e).

Suspension or cancellation of hazardous substance permits

22.6

(1) Subject to this section, a director, by notice served on the holder of a hazardous substance permit, may suspend the permit for any period or cancel the permit.

(2) A notice served under subsection (1) must state the time at which the suspension or cancellation takes effect.

(3) A director may exercise the authority under subsection (1) if a holder of a hazardous substance permit fails to comply with the conditions attached to the permit.

Restraining orders

22.7

(1) If a person, by carrying on an activity or operation, contravenes section 22.3 (1), the activity or operation may be restrained in a proceeding brought by the minister in the Supreme Court.

(2) The making of an order by the court under subsection (1) in relation to a matter does not interfere with the imposition of a penalty in respect of an offence in relation to the same contravention.

Offence and penalty

22.8 A person who contravenes section 22.3 (1) commits an offence and is liable on conviction to a fine not exceeding $400 000 or imprisonment for not more than 6 months, or both.

Power to amend Schedule

22.9 The Lieutenant Governor in Council may, by regulation, add substances, their definitions and their minimum amounts to the Schedule and delete substances, their definitions and their minimum amounts from the Schedule.

2 The following Schedule is added:

SCHEDULE [section 22.3 (1)]

Substance: Heavy Oil

Definition of Substance:

a) a crude petroleum product that has an American Petroleum Institute gravity of 22 or less, or

b) a crude petroleum product blend containing at least one component that constitutes 30% or more of the volume of the blend and that has either or both of the following:

Minimum Amount of Substance:  

The largest annual amount of the annual amounts of the substance that the person had possession, charge or control of during each of 2013 to 2017.

Right after question period on Thursday of this week, the MLA for Abbotsford West (and the former House Leader when the BC Liberals were in Government) rose, pursuant to Standing Order 35, to seek leave from the Speaker to “make a motion for the adjournment of the House … for the purpose of discussing a definite matter of urgent public importance … “.

In his statement, the MLA for Abbotsford West argued that it was urgent to discuss:

“the necessity, advisability, and consequences of referring to the Court of Appeal the question of British Columbia’s ability to regulate or limit the transportation of energy products on federally approved and regulated pipelines and rail lines“.

During the 40^th Parliament (prior to the May 2017 election) I stood three times pursuant to Standing Order 35 seeking to debate a matter of urgent public importance (all of them occurred in 2015).

The first sought a debate on whether or not in light of a preponderance of recent weather extremes, and in the lead up to an upcoming United Framework Convention on Climate Change meeting in Paris,  we, as legislators, were acting with sufficient urgency and demonstrating the appropriate leadership on preparing for and mitigating the escalating impacts of climate change in British Columbia.

The second sought a debate on the recent failure of the contaminated soil site stormwater containment and clarification system at the South Island Aggregates — Cobble Hill Holdings — South Island Resource Management operations near Shawnigan Lake.

The third sought a debate on an economic backup plan for British Columbia given the  collapse of this government’s strategy on LNG and the urgent need to transition to a low-carbon economy.

In all cases the Government House Leader (now the MLA for Abbotsford West) spoke against the need for such debates. As he pointed out,

“It is the urgency of debate, not the urgency of the matter itself”

that is important.

Both the Government House Leader (Mike Farnworth) and I spoke against the need for the present emergency debate. The reason of course is that the issue had been extensively canvassed in Question Period and Budget Estimate debates. Below I reproduce the video and text of my rationale.

Video of my remarks

Text of my remarks

A. Weaver: I rise to speak to the application for Standing Order 35. We were informed of this about a minute ago when this was put on our desk, so we’ve had a quick caucus meeting here.

I will suggest that I do have a lot of sympathy for the arguments brought forward by the Government House Leader.

I will also remind you of precedent. In the previous government, I rose pursuant to Standing Order 35 and I pointed out that it was critical at that juncture for the House here to have a debate on the issue of climate change in the lead-up to the Paris agreement, because government was deliberating on what it was going to do there. And both sides of the House, at that time, suggested that the urgency test had not been met.

I have been talking about the issue of Kinder Morgan for five, six years now. I would argue that the urgency test is not met either, in light of the fact that I listened to estimates, in light of the fact that I’ve been here in this chamber for the last number of weeks and there has been time after time after time where this has been debated. Some of the motions in private members’ time, some of the statements, are on this topic. We’ve had ample opportunity to discuss this.

Again, I come back to the precedent. I come back to the application of Standing Order 35 in the last parliament, when I rose precisely on an issue similar to this and the Speaker at the time ruled that it was not a matter of urgency. I would argue that the parallels are very similar. The argument at the time was that the issue of climate challenge had been debated in question period, it had been debated in estimates, and it had been debated in statements on Monday morning.

The analogy is direct. So our advice, hon. Speaker, as you make your decision, is that we find it difficult to see how this test of urgency is met.

Today in the legislature I had the opportunity to rise once more in Question Period to question government further about the dubious economic justifications underpinning Alberta and Federal rhetoric supporting the Trans Mountain pipeline.

Below I reproduce the video and text of my exchange with the Minister of the Environment.

Video of Exchange

Question

A. Weaver: Yesterday, I asked the government whether they share the concerns being raised by many experts about the economics of the Trans Mountain pipeline. I’d like to pick up on that here.

Earlier this year and for the very first time, a new class of tanker — a very large crude carrier, or VLCC — left the newly refurbished Louisiana Offshore Oil Port destined for Asia. These tankers can load over two million barrels of oil, and the LOOP facility can fill them at a whopping rate of 100,000 barrels an hour.

The Aframax-class tankers that would leave the terminus at the end of the Trans Mountain pipeline can only take 555,000 barrels of diluted bitumen out of Burrard Inlet. That means that any Asian buyer would need to contract four Aframax tankers from the Trans Mountain terminus versus only one VLCC from the LOOP facility.

Based on this obvious economic reality that any Asian buyers would be serviced by the VLCCs out of the U.S. and not out of the terminus of Trans Mountain, my question is this, to the either the Deputy Premier and Minister of Finance or the Premier, if he’s here: is her government or his government and her ministry or the Premier’s office taking a hard look at the financial case for the Kinder Morgan pipeline?

Answer

Hon. G. Heyman: Thank you to the Leader of the Third Party for the question. I and other members of the government are certainly aware of the controversy around the economics, the different studies, the changes in conditions and different alternatives. I thank the Leader of the Third Party for reading these into the record.

But with respect to the Leader of the Third Party, it is the job of proponents to determine the economics. It is the job of other governments backing the project to determine the merits of the economics. I think all Canadian taxpayers would want other governments to take a long, hard look at the economics of a project in which they’re considering investing billions of dollars.

But our job, as the government of British Columbia, is to look at the interests of our environment and our economy, and that’s what we’re doing. That’s why we are considering every measure, every inch of our constitutional jurisdiction — to protect against a catastrophe that’s possible, that could have significant and awful economic interests on British Columbia. Tourism alone — 19,000 tourism businesses in British Columbia, employing 133,000 people in every corner of this province, in every constituency represented by members in this chamber.

It’s our duty, it’s our responsibility, to look out for those people. It’s not our responsibility to ignore them because a large project comes along. Our job is to ensure that if there are large projects, they don’t impact and take away the livelihood of those people or the $17 billion in revenue that the tourism industry generates every year in British Columbia.

Mr. Speaker: The Leader of the Third Party on a supplemental.

Supplementary Question

A. Weaver: I do thank the minister for his answer and his commitment to protecting British Columbia. But I respectfully disagree, because I believe it is the government’s responsibility to inform British Columbians about the economics of this proposal.

Why? Because the previous government claimed that the economic benefits for British Columbia were very large and, in fact, claimed that the government’s fifth condition was apparently met. Now unfortunately, the fifth condition was based on assertions that were put towards the 2012 National Energy Board in the submission. It’s now six years old, and many of the fundamental assumptions of that submission, of that economic case, on which the government claimed its fifth condition was met, are no longer valid.

Keystone XL and line 3 have been approved. That means that we have more than a million barrels a day of export capacity, which was unaccounted for. We’ve got North America now having the ability to ship through VCCs — that was never able. And we know that you can’t get bigger ships in Burrard Inlet. This government, I would argue, has a responsibility to review those numbers, so that British Columbians are given correct, accurate and up-to-date information about the economics of this project.

My question, Hon. Speaker, is to the Minister of Environment — through you and then through the Minister of Finance, who still has laryngitis. The previous provincial government made claims about the economic benefits to B.C. from this pipeline, that have been cast into serious doubt. Why isn’t this government examining the economic case more closely?

Answer

Hon. G. Heyman: Again, I thank the Leader of The Third Party. As he respectfully disagrees with me about the role of our government in this regard, I respectfully assert again to him that this is not a project that this government thinks is good for British Columbia. We’ve made that clear. We think the risk is so great, and far outweighs the reward.

What we are doing is ensuring that within our jurisdiction, within our ability to regulate and place conditions on a project that is federally decided upon — subject to an appeal to the federal court — we ensure that conditions and regulations are in place to protect our economy.

It’s important up and down our coast. We have a fisheries and seafood industry that contributes more than $660 million every year to our gross domestic product, and it employs 14,000 people, paying almost $400 million in wages.

Just yesterday, 450 businesses understood why we were taking this position; 450 B.C. businesses signed a joint letter calling on the government to continue to stand up for our coast and the tens of thousands of jobs that depend on protecting our coastline and our environment from a spill.

Yesterday in the legislature I had the opportunity to rise in Question Period to question government about the dubious economic justifications underpinning Alberta and Federal rhetoric supporting the Trans Mountain pipeline.

Below I reproduce the video and text of the exchange with the Minister of the Environment.

Video of Exchange

Question

A. Weaver: The federal and Alberta governments, not to mention the B.C. Liberals, with their alternate facts, hysterical rhetoric and revisionist history, have been fearmongering about the risks to our economy if the Trans Mountain expansion doesn’t go ahead.

Mr. Speaker: Member, if I may stop you for a moment. If you could ensure that your question does not refer to the opposition, since it’s supposed to be directed to the government member.

A. Weaver: That’s fair enough, hon. Speaker. I’ll make sure it doesn’t refer to the members opposite. I assume, hon. Speaker, that this will also be applied to when we’re referred to in their questions, because it’s been multiple times over the time that we’ve had here that they’ve referred to us. I look forward to that. Thank you.

Interjections.

Mr. Speaker: Members.

A. Weaver: But it’s been reported that governments are actually basing economic claims on an analysis commissioned by Kinder Morgan itself. Experts are raising significant questions about this analysis, whether it’s because of changes in market conditions, flawed methodology or erroneous assumptions about how the oil markets function. Some raise serious doubts about the argument that we could fetch a higher price for our oil in Asia than in the U.S. One expert called this argument “kind of bogus.”

Add to this the fact that the price of oil has collapsed. In making its business case, Kinder Morgan assumed a price of $100 to $150 per barrel, and prices are now $60 per barrel.

My question is to the Deputy Premier and Minister of Finance, who I understand has laryngitis, so I will pose this question to the Minister of Environment. We’ve heard this government talk about the risk of a spill to our environment. But what is their position on the questionable claims made about the economic benefits of this pipeline?

Answer

Hon. G. Heyman: Thank you to the Leader of the Third Party for the question and raising these issues in the Legislature. Certainly, I’m aware of the difference in the market price of oil. I’m aware of questions that have been raised about the economics of the project as, I suspect, are most members of the House. However, with respect to those questions, that is not the primary concern of our government, nor is it the responsibility of our government to determine the economics of a project which we have neither initiated nor sought.

What is our job, however, is to ensure that we do everything we can to protect British Columbia’s economy, the tens of thousands of jobs in tourism, in film and television, in the seafood sector, and the billions in economic development that stand with it, all of which could be at risk from a single spill of diluted bitumen. We believe that we must defend B.C.’s economy. We must defend our interest. We must defend our environment.

We understand it’s a federal project — federally regulated — a project in terms of allowing it. We understand also that the constitution has a clear role for provinces in permitting, in conditions and in regulating against negative impacts that are a concern and a detriment to our province.

Supplementary Question

A. Weaver: The economic conditions have indeed changed significantly since Kinder Morgan was approved. We’ve seen oil prices crater due to world market changes. We face huge uncertainty about future prices due to new supply and to massive technological shifts, as markets around the world embrace renewable technology. Energy experts say it’s basically now impossible to predict future prices.

The analysis that Kinder Morgan relied upon in its application to the NEB and its claims of the economic benefits to Canada from this pipeline fundamentally assumed that there was no other export capacity that would be built.

Since then, Keystone XL and line 3 have now been approved, which add over one million barrels a day of export capacity. We now have more capacity than we need. In light of the trends, it’s absolutely shocking that our federal government is willing to put taxpayer money behind this pipeline.

My question, again — through you, through the Deputy Premier and Minister of Finance, who has laryngitis, to the Minister of Environment — is this: will this government demand that the federal government and the government of Alberta publicly release their economic case justifying their rhetorical assertions as to the economics of the Trans Mountain Pipeline and its fundamental business case for national security and national importance?

Answer

Hon. G. Heyman: While it isn’t the job of the province of British Columbia, specifically, to make demands of the federal government with respect to business cases, when the federal government or the government of Alberta proposes putting public money into a project, I think they’d be well advised to listen to the advice of the Premier of British Columbia, who said: “Our focus, and we think every province and every government in Canada’s focus, should be on adding value to our resources and creating the most jobs possible for resources.”

That’s what we’re trying to do here in British Columbia. We’re trying to get the most value from our resources to give the most value to British Columbians, who want jobs, rather than profits to corporations headquartered outside of this province.

We will continue to take every step that we’re allowed under the constitution to protect tens of thousands of jobs and to protect our tourism industry, our seafood industry, our film industry — the billions of dollars in GDP — from the tremendous threat of a catastrophic oil spill that could be caused by a pipeline rupture. It could be caused by a train derailment. And it could be caused by a seven-fold increase in tanker traffic off our shores.

Today in the legislature the entire question period was once more focused on the Trans Mountain pipeline project. I was up third again sandwiched between several BC Liberal MLAs asking about the same topic.

I took the opportunity to further question the Attorney General and the Premier as to what actions they plan to take regarding Alberta’s recently introduced outrageous legislation in light of the Premier of Alberta’s remarks suggesting that it was intended to give them the tools to target B.C.?

I was delighted with the strong answers I received to both questions.

Below I reproduce the video and text of the exchanges.

First Question Video Exchange

Second Question Video Exchange

Question

A. Weaver: I find it remarkable that I sit here and listen to the official opposition defend the interests of Alberta over the interests of British Columbia.

Yesterday we saw the Alberta government, as was mentioned, introduce legislation intended to directly punish British Columbia for trying to protect our country’s coastline and coastal communities from a threat of a diluted bitumen spill.

If that was used — and members opposite should know this — it would be illegal if used to raise the price of gas. Constitutional lawyers have ruled on this. It would be illegal for them to do this, and the liability that Alberta taxpayers would take upon that would be unbelievable.

Frankly, the same Albertans should realize…. Where do they get their natural gas from to actually power the oil fields? They get it from northeastern British Columbia. They should know better than to do this.

This latest move was precipitated by Kinder Morgan’s imposition of a May 31 deadline to achieve certainty before going ahead with the Trans Mountain expansion.

In response to the legislation, the Attorney General said yesterday….

Interjections.

A. Weaver: If you let me actually ask it, I would. Thank you very much, Members opposite.

This is what the Attorney General said: “If there is anything in this legislation that even suggests the possibility of discrimination against British Columbians, we will take every step necessary” to protect the interests of British Columbians.

My question is to the Attorney General. Given the Premier of Alberta’s previous remarks suggesting that this legislation was intended to give them the tools to target B.C., can you please specify what specific actions you’re planning to take in response?

Answer

Hon. D. Eby: I thank the member for his question and for his commitment to British Columbians.

We’ve reviewed the bill. We believe it’s unconstitutional and illegal, on its face. It’s especially so — if that’s possible — given the context of the comments of members of the government of Alberta about the purpose for which the bill was introduced.

There are three options available to our….

Interjections.

Mr. Speaker: Members.

Hon. D. Eby: There are three options available to our government in terms of responding to this. One is, before the bill passes, we could refer it to our courts. After the bill passes and receives royal assent, we could challenge it in court as unconstitutional. And in the incredibly unlikely event that the government of Alberta actually thought that they had the authority under the law to use this act, we could be in court on an injunction to stop them from doing so and to challenge it and to sue the government of Alberta.

So we think that they are very unlikely to use this, given the analysis, and we think they know it. It is a bill for political purposes only.

Supplementary Question

A. Weaver: I want to build upon this in light of the fact that members opposite are putting at risk our natural gas production in northeastern British Columbia that goes to Alberta. I’d like to pick up on that.

In addition to the development and discovery of new shale oil deposits, we’ve seen profound technological shifts and the rise of renewable energy in markets around the world, not least in Asia. And what are the supposed targeted markets for this pipeline?

Kinder Morgan is playing one jurisdiction off against another. I reiterate: our natural gas producers in northeast British Columbia have the single-largest buyer of their natural gas being Alberta. And members opposite are putting that at risk with their rhetoric supporting Alberta’s illegal behaviour.

One week since they issued their ultimatum, they’ve managed to secure taxpayers to prop up their government. Commitment….

Interjections.

Mr. Speaker: Members, we shall hear the question.

Leader, proceed.

A. Weaver: One week since they’ve issued their ultimatum, they’ve managed to secure taxpayer dollars to prop up their project, commitments that the federal government will steamroll community and First Nations opposition and further punitive legislation that sets a dangerous precedent for interprovincial trade. Canada needs a leader right now who is not going to let Kinder Morgan play one jurisdiction against another.

To the Premier: despite Alberta’s posturing, will you assure this House that you won’t get dragged into a tit for tat with Alberta where nobody wins?

Answer

Hon. J. Horgan: I thank the member for his question. It is not my intention nor is it the intention of my government to be provocative with other parts of the country. That’s not what I believe how cooperative federalism works. I happily went to Ottawa at the request of the Prime Minister to meet with him, his Finance Minister as well as the Premier and the leader of the government of Alberta. We had a candid discussion and discovered that we had a difference of opinion.

In Canada, that’s okay. It may not be okay to the members on that side of the House to disagree periodically, but the Canadian fabric will not be torn because we don’t have the same points of view from day to day to day.

I believe that the important thing for us all to do is to stop with the yelling, stop with the bluster, and hope that cooler heads will prevail. I believe, also, that the courts are the appropriate place for this action — not political posturing and not grandstanding but making sure that reasonable people can put their points forward and have a determination by a third party, rather than reckless politics like we’re seeing from the other side.