B.C. Court of Appeal says province can't restrict oil shipments within borders

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robbie_dee
B.C. Court of Appeal says province can't restrict oil shipments within borders

Quote:

British Columbia’s highest court has concluded the province’s proposed plan to limit the amount of heavy oil flowing west to the ocean would be unconstitutional because only Ottawa has such oversight of the federally owned and regulated Trans Mountain pipeline.

Friday morning’s unanimous decision by five justices of the B.C. Court of Appeal bolsters the efforts of Alberta to ensure the Trans Mountain pipeline expansion gets built, but the decision is widely expected to be appealed to the Supreme Court of Canada. The justices stated both levels of government can play a role in environmental protection, but B.C.'s plan threatened to usurp the role of the National Energy Board, which is at the centre of the federal regulatory regime of “interprovincial undertakings" such as pipelines and railways.

“The TMX project is not only a ‘British Columbia project,’” the decision written by Justice Mary Newbury states. “The project affects the country as a whole, and falls to be regulated taking into account the interests of the country as a whole.”

The judges did not characterize B.C.'s plan as a “smokescreen” aimed at directly stopping the tripling of the existing line, which runs from the Edmonton area to Metro Vancouver and was bought last year by the federal Liberal government from Kinder Morgan for $4.5-billion. But they did note “its sole effect is, to set conditions for, and if necessary prohibit, the possession and control of increased volumes of heavy oil in the Province,” which currently flows almost exclusively through the pipeline.

“The ‘default’ position of the law is to prohibit the possession of all heavy oil in the Province above the Substance Threshold - an immediate and existential threat to a federal undertaking [Trans Mountain] that is being expanded specifically to increase the amount of oil being transported through British Columbia," the decision states.

Globe and Mail

NDPP

A fixed game. The most crooked, corrupt bench and bar in Canada, especially on the topic of land/resources...

"The Indigenous peoples are entitled to veto developments by vetoing the applications for their consent to the use of the land without which development can not take place."

Bruce Clark: The Sovereign Indigenous Power of Veto in Canada

http://rabble.ca/comment/5593726#comment-5593726

 

Pondering

Definitely going to the Supreme Court because the judges bizarrely didn't answer the first question asked which had nothing to do with interprovincial projects. The second question asked if such a law would apply to interprovincial projects. 

In the response the Judges said:

On a constitutional reference by the Province of British Columbia, the Court opined that it is not within the authority of the Legislature to enact a proposed amendment to the Environmental Management Act. The amendment was targeted legislation that in pith and substance relates to the regulation of an interprovincial (or “federal”) undertaking — the expanded interprovincial pipeline of Trans Mountain Pipeline ULC and Trans Mountain Pipeline L.P. which is intended to carry “heavy oil” from Alberta to tidewater. The amendment thus lies beyond provincial jurisdiction.

https://www.courts.gov.bc.ca/jdb-txt/ca/19/01/2019BCCA0181.htm

I was surprised that the judges were so severe with the protesters now I am assuming they are Conservatives. 

NorthReport

Contrary to the CBCers fawning all over the ruling,  the decision is chicken feed and basically a waste of time as it was destined to head off to the SCC

Where most of these rulings get overturned

Premier John Horgan has already announced that BC’s NDP Government will be appealing 

kropotkin1951 kropotkin1951's picture

Pondering wrote:

Definitely going to the Supreme Court because the judges bizarrely didn't answer the first question asked which had nothing to do with interprovincial projects. The second question asked if such a law would apply to interprovincial projects. 

In the response the Judges said:

On a constitutional reference by the Province of British Columbia, the Court opined that it is not within the authority of the Legislature to enact a proposed amendment to the Environmental Management Act. The amendment was targeted legislation that in pith and substance relates to the regulation of an interprovincial (or “federal”) undertaking — the expanded interprovincial pipeline of Trans Mountain Pipeline ULC and Trans Mountain Pipeline L.P. which is intended to carry “heavy oil” from Alberta to tidewater. The amendment thus lies beyond provincial jurisdiction.

https://www.courts.gov.bc.ca/jdb-txt/ca/19/01/2019BCCA0181.htm

I was surprised that the judges were so severe with the protesters now I am assuming they are Conservatives. 

I perused the case and did not see a single reference to protestors by the Judges. What makes you think this rather dry legal case about the constitutional jurisdiction over pipelines has anything to do with a Judge's politics?

pookie

Pondering wrote:

Definitely going to the Supreme Court because the judges bizarrely didn't answer the first question asked which had nothing to do with interprovincial projects. The second question asked if such a law would apply to interprovincial projects. 

In the response the Judges said:

On a constitutional reference by the Province of British Columbia, the Court opined that it is not within the authority of the Legislature to enact a proposed amendment to the Environmental Management Act. The amendment was targeted legislation that in pith and substance relates to the regulation of an interprovincial (or “federal”) undertaking — the expanded interprovincial pipeline of Trans Mountain Pipeline ULC and Trans Mountain Pipeline L.P. which is intended to carry “heavy oil” from Alberta to tidewater. The amendment thus lies beyond provincial jurisdiction.

https://www.courts.gov.bc.ca/jdb-txt/ca/19/01/2019BCCA0181.htm

I was surprised that the judges were so severe with the protesters now I am assuming they are Conservatives. 

Pondering have you actually read the decision?  Or just the italicized summary?

I ask because there were, in fact, three questions, not two:

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?

And the court's unanimous answer was:

"... ‘no’ to the first question on the reference. In light of this answer to the first question, it is unnecessary to answer the latter two questions."

Which perfectly tracks the structure of the questions!

What, pray tell, is "bizarre" in that?

You may not like the court's answer, but please don't impugn the judges unless you are prepared to actually read, analyze, and critique the one hundred paragraphs of their opinion.

 

Martin N.

The BC loons should pester the SCC about repealing the Law of Gravity as well. The well-grounded enviros in the Fantasy Islands are well aware that this  irksome Law is the only obstacle to environmentally friendly hovercraft powered by the laughter of children.

Pondering

pookie wrote:

Pondering wrote:

Definitely going to the Supreme Court because the judges bizarrely didn't answer the first question asked which had nothing to do with interprovincial projects. The second question asked if such a law would apply to interprovincial projects. 

In the response the Judges said:

On a constitutional reference by the Province of British Columbia, the Court opined that it is not within the authority of the Legislature to enact a proposed amendment to the Environmental Management Act. The amendment was targeted legislation that in pith and substance relates to the regulation of an interprovincial (or “federal”) undertaking — the expanded interprovincial pipeline of Trans Mountain Pipeline ULC and Trans Mountain Pipeline L.P. which is intended to carry “heavy oil” from Alberta to tidewater. The amendment thus lies beyond provincial jurisdiction.

https://www.courts.gov.bc.ca/jdb-txt/ca/19/01/2019BCCA0181.htm

I was surprised that the judges were so severe with the protesters now I am assuming they are Conservatives. 

Pondering have you actually read the decision?  Or just the italicized summary?

I ask because there were, in fact, three questions, not two:

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?

And the court's unanimous answer was:

"... ‘no’ to the first question on the reference. In light of this answer to the first question, it is unnecessary to answer the latter two questions."

Which perfectly tracks the structure of the questions!

What, pray tell, is "bizarre" in that?

You may not like the court's answer, but please don't impugn the judges unless you are prepared to actually read, analyze, and critique the one hundred paragraphs of their opinion.

 

The first question did not apply at all to Trans Mountain. It was referencing purely that which is under provincial jurisdiction. This is made clear by the second question which asked if the law would extend to federal projects. 

Responding yes to the first question and no to the second would satisfy non-interference with Trans Mountain as Trans Mountain is an interprovincial project under federal jurisdiction. 

In answer to a comment by someone else. No protesters were involved in this case. I remember thinking the judge was conservative during the hearings and sentencing of the protesters in an earlier case. It occured to me the "Liberal" government was in power for a long time therefore has appointed many of the judges. 

I am very disappointed and concerned over the ruling. If I were on the other side of the fence I too would be jubilant. I am not. I am firmly in support of the right of provinces to protect their territory and citizens from environmental threat. 

Some may be breathing a sigh of relief thinking this solves the issue and the pipeline will go through even if the Supreme Court has to rule first but this is far from over. You can bet Legault is going to have plenty to say about it. 

pookie

Again, you should probably read the decision - and all of the cited cases in it - before you start to critique it, Pondering.  The court explains its analysis quite thoroughly.  It's not immune from critique - no decision is - but it is not the caricature you seem to think it is.

kropotkin1951 kropotkin1951's picture

Pondering is of the belief that we have no rule of law at all in Canada. Our Judges just decide based on political concerns not judicial reasoning. Fortunately that is not the case, especially when it involves a Constitutional case about provincial versus federal jurisdiction.

Pondering

kropotkin1951 wrote:

Pondering is of the belief that we have no rule of law at all in Canada. Our Judges just decide based on political concerns not judicial reasoning. Fortunately that is not the case, especially when it involves a Constitutional case about provincial versus federal jurisdiction.

kropotkin, not all judges come to the same conclusions. There are often dissenting opinions and courts overturn the decisions of lower courts. Even when people are determined to be unbiased it is often impossible because they have core beliefs. The emphasis they placed on the pipeline being in the best interests of Canada seemed based solely in financial benefit and that the entire thrust of the law applied only to Transmountain even though the questions were separated into three parts with the first part not referring to or including interprovincial projects as indicated by the second question.

Judges also have many choices when penalizing protesters. A judge's opinion matters. 

kropotkin1951 kropotkin1951's picture

Judges come to decisions based on how the facts in front of them fit into previous decisions by other courts. Priority of rights is the problem when it comes to the environment. The indigenous rights over their unceded land are not enough to trigger an injunction to halt work until the issue is decided, a municipalities fear of a major disaster is not enough to trigger an injunction to halt work until the issue is decided however if you interfere with a person or company's ability to make money an injunction will be forthcoming and enforced until the issue comes before the courts. So when I was arrested on Burnaby Mountain it was Trans Mountain who asked the court to arrest me, because I breached the injunction they were granted to protect their business interests.

 

Pondering

kropotkin1951 wrote:

Judges come to decisions based on how the facts in front of them fit into previous decisions by other courts. Priority of rights is the problem when it comes to the environment. The indigenous rights over their unceded land are not enough to trigger an injunction to halt work until the issue is decided, a municipalities fear of a major disaster is not enough to trigger an injunction to halt work until the issue is decided however if you interfere with a person or company's ability to make money an injunction will be forthcoming and enforced until the issue comes before the courts. So when I was arrested on Burnaby Mountain it was Trans Mountain who asked the court to arrest me, because I breached the injunction they were granted to protect their business interests.

 

How to you explain upper courts overturning the decisions of lower courts?

JKR

Martin N. wrote:

The BC loons should pester the SCC about repealing the Law of Gravity as well. The well-grounded enviros in the Fantasy Islands are well aware that this  irksome Law is the only obstacle to environmentally friendly hovercraft powered by the laughter of children.

If these pipeline are ok’ed I’d expect to see many protesters from Greater Vancouver come out and do everything in their power to prevent these pipelines from ever being built. I think BC might be in for a repeat of the Clayoquot Sound protests, although this time around there would likely be very many more protesters. I think it’s fair to say that Burnaby and Greater Vancouver are mostly against these pipelines being built in our backyard and having more bitumen shipped from our waters.

Martin N.

Fair enough for lower mainlanders to oppose TM on nimby grounds but, as a member of the Confederation of Canada, BC has an obligation to Canada as a whole.

As kropotkin ably argues above, no society can function in the absence of the rule of law. I believe Gateway was a much better option than TM but, the federal government, in its wisdom cancelled it. Now, federal decisions have resulted in TM as a last resort rather than an option among others.

The BC government also fuels the fire by launching ill-advised law suits simply as a sop to the enviroloons ( as opposed to rational, science-based environmentalists like me). Horgan epitomises Einstein's definition of insanity: "Doing the same thing over and over, expecting a different result".

If Trudeau has any brains he will cancel the TM expansion and reapprove Gateway that he cancelled for purely political opportunism. With the Senate quashing the ill-conceived tanker ban, it is an optimal time to reorganise the whole sorry mess he made. The sad part is that the arrogant ass is too narcissistic to admit fault and will double down for only his ego's sake.

Coastal BC is embracing electric vehicles and grid-tied solar which will speed the adoption of electric technology as the norm, leading to reduced capital costs but the rest of the nation is not as lucky due to large distances and cold weather. Hydrocarbon fuels will still be in demand for the next 50 years globally so why not use well regulated Canadian energy as opposed to unregulated, environmentally hazardous energy from less caring nations?

Pondering

Martin N. wrote:
Fair enough for lower mainlanders to oppose TM on nimby grounds but, as a member of the Confederation of Canada, BC has an obligation to Canada as a whole.

The people opposed to TM are opposed to all new pipelines not just TM so it isn't just nimbyism. 

The Supreme Court hasn't ruled yet so the legal avenues have not yet been exhausted. 

I have no idea how strong the protests will be but if arrests start being in the thousands not hundreds that will change the equation. 

A province has an obligation to Canada but Canada also has an obligation to provinces, or more specifically the people of a province. If the people feel strongly enough on an issue to separate then Canada cannot force its will on them.

kropotkin1951 kropotkin1951's picture

Pondering wrote:

How to you explain upper courts overturning the decisions of lower courts?

It is called stare decisis. A basic fundamental principle of our common law legal system.

Stare decisis [Latin, "let the decision stand"] refers to the doctrine of precedent, according to which the rules formulated by judges in earlier decisions are to be similarly applied in later cases. The reason for the doctrine is that similar cases should be treated alike so as to ensure consistency and certainty in the law. It evolved in the primarily "judge-made" COMMON LAW system of the law and attained its most formal expression in late 19th-century England.

In practice today the doctrine means only that prior decisions of higher courts are binding on lower courts of the same jurisdiction, for neither the Supreme Court of Canada nor many of the provincial courts of appeal consider themselves bound by their own previous decisions. Lower courts are also free to analyse the reasons (ratio decidendi) given by the higher court and to decide, in light of the facts of the actual dispute before them, whether to apply the precedent or to distinguish the rule contained on the basis of factual differences in the 2 cases. The doctrine, within these same limits, also applies in the interpretation of statutes. Its role in Québec civil law is of less importance and is a matter of debate.

https://www.thecanadianencyclopedia.ca/en/article/stare-decisis

Unionist

Pondering doubles down when challenged - especially when she is dead wrong. Why anyone would bother wasting rational or legal arguments in such a situation is beyond me.

By the way, although I am not a lawyer, the court's decision seems obviously correct to me (even though I oppose the pipeline). I'm almost interested in reading BC's pleadings to see how they could have made a shred of a case. The SCC will uphold this decision.

If I'm wrong, could someone like pookie or kropotkin please suggest a scenario where the SCC could rule differently. 

Unionist

pookie wrote:

Again, you should probably read the decision - and all of the cited cases in it - before you start to critique it, Pondering.  The court explains its analysis quite thoroughly.  It's not immune from critique - no decision is - but it is not the caricature you seem to think it is.

Maybe unfair or impossible question - but can you (or krop or anyone) describe a scenario where the SCC could overturn this decision? 

JKR

Martin N. wrote:

Fair enough for lower mainlanders to oppose TM on nimby grounds but, as a member of the Confederation of Canada, BC has an obligation to Canada as a whole.

As kropotkin ably argues above, no society can function in the absence of the rule of law. I believe Gateway was a much better option than TM but, the federal government, in its wisdom cancelled it. Now, federal decisions have resulted in TM as a last resort rather than an option among others.

The BC government also fuels the fire by launching ill-advised law suits simply as a sop to the enviroloons ( as opposed to rational, science-based environmentalists like me). Horgan epitomises Einstein's definition of insanity: "Doing the same thing over and over, expecting a different result".

If Trudeau has any brains he will cancel the TM expansion and reapprove Gateway that he cancelled for purely political opportunism. With the Senate quashing the ill-conceived tanker ban, it is an optimal time to reorganise the whole sorry mess he made. The sad part is that the arrogant ass is too narcissistic to admit fault and will double down for only his ego's sake.

Coastal BC is embracing electric vehicles and grid-tied solar which will speed the adoption of electric technology as the norm, leading to reduced capital costs but the rest of the nation is not as lucky due to large distances and cold weather. Hydrocarbon fuels will still be in demand for the next 50 years globally so why not use well regulated Canadian energy as opposed to unregulated, environmentally hazardous energy from less caring nations?

I think the Harper Conservatives share a lot of the blame for the current situation. Harper simply ignored doing anything significant to alleviate the environmental problems that are being caused by our carbon based economy and that avoidance has come home to roost. Regardless of who forms government, Canada’s needs a national plan on significantly curbing our carbon dioxide output.We should be getting it down to at least the global average of per capita metric tons per capita of carbon dioxide emissions.

Pondering

kropotkin1951 wrote:

Pondering wrote:

How to you explain upper courts overturning the decisions of lower courts?

It is called stare decisis. A basic fundamental principle of our common law legal system.

Stare decisis [Latin, "let the decision stand"] refers to the doctrine of precedent, according to which the rules formulated by judges in earlier decisions are to be similarly applied in later cases. The reason for the doctrine is that similar cases should be treated alike so as to ensure consistency and certainty in the law. It evolved in the primarily "judge-made" COMMON LAW system of the law and attained its most formal expression in late 19th-century England.

In practice today the doctrine means only that prior decisions of higher courts are binding on lower courts of the same jurisdiction, for neither the Supreme Court of Canada nor many of the provincial courts of appeal consider themselves bound by their own previous decisions. Lower courts are also free to analyse the reasons (ratio decidendi) given by the higher court and to decide, in light of the facts of the actual dispute before them, whether to apply the precedent or to distinguish the rule contained on the basis of factual differences in the 2 cases. The doctrine, within these same limits, also applies in the interpretation of statutes. Its role in Québec civil law is of less importance and is a matter of debate.

https://www.thecanadianencyclopedia.ca/en/article/stare-decisis

 

But by your reckoning that is impossible. Only one decision and one sentence is ever correct. There is zero flexibility because if there were any flexibility that would allow for judges to have an opinion. 

Unionist, you are such a sycophant sometimes. Do you really think what you are doing adds to the appeal of the board? Makes people want to come here and discuss politics? 

Pondering

Unionist wrote:

Pondering doubles down when challenged - especially when she is dead wrong. Why anyone would bother wasting rational or legal arguments in such a situation is beyond me.

By the way, although I am not a lawyer, the court's decision seems obviously correct to me (even though I oppose the pipeline). I'm almost interested in reading BC's pleadings to see how they could have made a shred of a case. The SCC will uphold this decision.

If I'm wrong, could someone like pookie or kropotkin please suggest a scenario where the SCC could rule differently. 

I know you don't mean me in terms of answering your question but the Supreme Court may decide to treat it as three separate questions as written rather that combining the first two questions. 

Pondering

For reference, here are the three questions:

Order-in-council and Reference Question

On the recommendation of the undersigned, the Lieutenant Governor, by and with the advice and consent of the Executive Council, orders that the questions set out below be referred to the British Columbia Court of Appeal for hearing and consideration under the Constitutional Question Act:

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?

APPENDIX

Environmental Management Act

1 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:
(i) an American Petroleum Institute gravity of 10 or less,
(ii) a dynamic viscosity at reservoir conditions of at least 10 000 centipoise.

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.

Pondering

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?

The BC court, from what I have read, seems to have decided BC cannot regulate heavy oil even if it is found within the province making the next two questions null and void. 

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?

I haven't read the decision because I haven't found it online. 

Unionist

Pondering wrote:

I haven't read the decision because I haven't found it online. 

Read it. Or don't. I can't see how it (or anything or anyone) could possibly change your mind.

Pondering

What difference does it make Unionist? Why do you have to get personal? All I was saying is that judges have leeway in their decisions. Some interpret more strictly than others. Those judges are more conservative. It is possible that the Supreme Court will overturn this decision based on different interpretation. 

The Liberals have been in power for many years in BC. If judges are appointed by government then it stands to reason they chose more conservative judges. 

JWR apparently recommended a conservative judge who was rejected by Trudeau so the notion of some judges being more liberal and others more conservative is not a radical idea. If judges were not impacted by being more or less conservative then it wouldn't matter which type was appointed. 

I am probably not going to change my mind on the above because it is not even a little bit controversial. 

I really thought we were done with this crap Unionist. 

Unionist

Pondering wrote:

What difference does it make Unionist? Why do you have to get personal? All I was saying is that judges have leeway in their decisions.

I'm not getting personal. I'm reading your nonsensical amateurish comments about this decision which you haven't even read. You misread a summary of the court's decision, as krop and pookie pointed out. They have expertise which neither you nor I have. You ignored that.

You said you couldn't find the full decision. You yourself linked to it in a post 2 days ago. I found it on another site and linked it for you just now. You're not interested in reading it, though pookie asked you to do so. Why not slow down your typing and stop embarrassing yourself?

kropotkin1951 kropotkin1951's picture

Pondering wrote:

kropotkin1951 wrote:

Pondering wrote:

How to you explain upper courts overturning the decisions of lower courts?

It is called stare decisis. A basic fundamental principle of our common law legal system.

Stare decisis [Latin, "let the decision stand"] refers to the doctrine of precedent, according to which the rules formulated by judges in earlier decisions are to be similarly applied in later cases. The reason for the doctrine is that similar cases should be treated alike so as to ensure consistency and certainty in the law. It evolved in the primarily "judge-made" COMMON LAW system of the law and attained its most formal expression in late 19th-century England.

In practice today the doctrine means only that prior decisions of higher courts are binding on lower courts of the same jurisdiction, for neither the Supreme Court of Canada nor many of the provincial courts of appeal consider themselves bound by their own previous decisions. Lower courts are also free to analyse the reasons (ratio decidendi) given by the higher court and to decide, in light of the facts of the actual dispute before them, whether to apply the precedent or to distinguish the rule contained on the basis of factual differences in the 2 cases. The doctrine, within these same limits, also applies in the interpretation of statutes. Its role in Québec civil law is of less importance and is a matter of debate.

https://www.thecanadianencyclopedia.ca/en/article/stare-decisis

 

But by your reckoning that is impossible. Only one decision and one sentence is ever correct. There is zero flexibility because if there were any flexibility that would allow for judges to have an opinion.

I am at a lose to figure out what it is you are trying to say and how it relates in any manner to anything I have posted. Of course Judges have opinions about the law. Lawyers get paid big bucks to write legal opinions. Law is opinion based on precedent not ones politics. This case especially has nothing very much to do with the environment in its analysis it is about the division of powers and there is absolutely nothing partisan or political about that subject.

Pondering

Having now skimmed the judgement at https://www.canlii.org/en/bc/bcca/doc/2019/2019bcca181/2019bcca181.html my thoughts have been confirmed. 

The court did not deal with the questions individually. They determined that the first question was about Transmountain even though the next two questions made it clear the first question did not apply to the pipeline. 

I am guessing what Horgan expected was Yes,No, No. I am guessing the judges didn't want to do that because it would mean provincial environmental laws don't apply to federal projects and they didn't want to open that can of worms. 

As I understand it from reading on the Constitution the provinces and federal government each have specific areas of control. It isn't a default situation in that whatever doesn't fall under provincial jurisdiction automatically falls under federal jurisdiction. This ruling even acknowledges that both levels of government share jurisdiction because of the significance of the environment. 

I wonder how long the Supreme Court will take to decide. Because it is a question not a case it should be relatively fast? How long did the BC court take?

Pondering

Unionist wrote:

Pondering wrote:

What difference does it make Unionist? Why do you have to get personal? All I was saying is that judges have leeway in their decisions.

I'm not getting personal. I'm reading your nonsensical amateurish comments about this decision which you haven't even read. You misread a summary of the court's decision, as krop and pookie pointed out. They have expertise which neither you nor I have. You ignored that.

You said you couldn't find the full decision. You yourself linked to it in a post 2 days ago. I found it on another site and linked it for you just now. You're not interested in reading it, though pookie asked you to do so. Why not slow down your typing and stop embarrassing yourself?

Obviously I am neither a judge nor a lawyer. Even people who are could not say for certain what the BC court would decide and no one can say at this time what the Supreme Court will decide. 

Discussion is purely speculative and completely amateurish. It's just a message board. It isn't for law students. You could just ignore my comments if you find them ignorant. Are you afraid someone will wander along and think I'm an expert so take my word for gospel and go out and misinform people? 

I just read the decision in a bit more detail and it confirmed what I was saying. They did not answer the question in 3 parts. They say the answered the first but it is clear that they put all three together because the first excluded the pipeline. 

Do you have any comments pertaining to the subject or are you just here to talk about me.

P.S. I didn't even remember linking to it so that you do remember and went back to look for it should be an embarrassment to you. 

I don't know what it is you are trying to prove about me or why. I really don't give a shit. Get over yourself. 

kropotkin1951 kropotkin1951's picture

Pondering your reading of the case merits an F.

You are right I have nothing further to say about the case, given it was all for show in the first place.

Pondering

If my opinions are wrong due to lack of understanding or education I at least apply them to a topic not to people. You choose to ridicule me. If anyone should be feeling shame it is you. 

JKR

Pondering wrote:

Discussion is purely speculative and completely amateurish. It's just a message board.

I agree this is just a message board. But why then is it so important for people here that they always prove others wrong and that they always be right and that they don’t admit to their mistakes that all of us amateurs and very many professionals inevitably make on forums such as this? There seems to be too much cutthroat debate here especially considering it is a message board for people who want greater social justice for our world. 

Pogo Pogo's picture

I am interested in Unionist's question further up about how likely an appeal will succeed.  I saw a tweet remind that the teacher class size decision overturned a decisive majority.

NorthReport

Good point Pogo.

 

JKR

Over the years a few major BC decisions have been overturned by the SCC, notably the Sparrow case and the Delgamuukw case.

Pondering

JKR wrote:

Pondering wrote:

Discussion is purely speculative and completely amateurish. It's just a message board.

I agree this is just a message board. But why then is it so important for people here that they always prove others wrong and that they always be right and that they don’t admit to their mistakes that all of us amateurs and very many professionals inevitably make on forums such as this? There seems to be too much cutthroat debate here especially considering it is a message board for people who want greater social justice for our world. 

Maybe because it is being perceived as debate by some and as discussion by others. To me it is discussion. There is no need for a conclusion or for one person to be right and another wrong. 

I don't consider myself to be an activist or a scholar nor do I present myself as such. I am just an average person that dabbles a bit more in politics or pays a bit more attention to politics than many other average people. 

It frustrates me to watch the right walk away with support that should naturally go the the NDP but doesn't, (in my opinion) because the left is so deeply disrespectful of the average person. 

quizzical

well if the SCC upholds then QC will be getting a pipeline too.

and no pondering some people against TMX aren't against all pipelines 

kropotkin1951 kropotkin1951's picture

JKR wrote:

Over the years a few major BC decisions have been overturned by the SCC, notably the Sparrow case and the Delgamuukw case.

The BC Court of Appeal has been very bad in its decisions about indigenous rights. The Delgamuukw decision was out and out racist in its language and description of live in indigenous communities. This case is far drier and does not engage the Charter. It is in Charter cases we see the SCC changing its mind because of changing facts and realities in our country but not so much for constitutional interpretation of the division of powers.  I guess I am going to have to force myself to read it a bit more in depth to form an opinion on whether Arvay's arguments have any merit at all. He was the lead council that convinced the SCC to overturn itself on union bargaining rights in the HEU case.

Unionist

quizzical wrote:

well if the SCC upholds then QC will be getting a pipeline too.

Um, no, quizzical. Québec will never allow the Supreme Court to suppress the will of our people. Like, when the Supreme Court made its bullshit decision that an independence referendum question must be "clear" and that 50% isn't enough, it has to be a "significant majority"? You remember the "Clarity Act"? Fortunately, independence of Québec isn't big on our agenda right now. But if and when it is, Québec will be independent, and we will have no pipeline, no matter what the SCC says.

Quote:

and no pondering some people against TMX aren't against all pipelines 

Pondering doesn't listen. She only doubles down. She said she couldn't find the B.C. decision on the internet, after having linked to it herself. She types way too fast. Don't debate with her. It's a dead end.

pookie

Unionist wrote:

 

Maybe unfair or impossible question - but can you (or krop or anyone) describe a scenario where the SCC could overturn this decision? 

Unionist, I would be shocked if the SCC overturned this....but it is possible that one or two judges could give a concurring opinion that finds the law to be within BC's jurisdiction, but obviously in conflict with the federal pipeline.  I really do not see even a single judge finding that the law does not, at least, trigger that conflict.

Basically, the Court of Appeal found, unanimously, that the law in question was designed to interfere with federal undertakings (admittedly, in furtherance of unquestionably important policy objectives).  So the law, in its purpose, was what we call ultra vires.  Provinces cannot pass laws intended to trench on federal works and undertakings.

Although this was a reference, not a case, so that was not, strictly speaking, a finding of fact, I expect the SCC would give some deference to this conclusion by the lower court.

The fact that this is an advisory opinion gives BC its one ace in the hole, which is that it has an automatic right of appeal.  Were it an ordinary case, there is no way the Supreme Court would grant leave to appeal.

Unionist

Thanks, pookie. That's what I thought, but I don't have the expertise to say it that way. But it's still possible that the SCC will refuse to hear the matter?

pookie

Unionist wrote:

Thanks, pookie. That's what I thought, but I don't have the expertise to say it that way. But it's still possible that the SCC will refuse to hear the matter?

No, under section 36 of the Supreme Court Act, the Court is required to hear provincial appeals of reference opinions. It arises because the federal government has the right to refer questions to the Court directly but the provinces can't.  So that automatic right was added in 1922 or so to respond to long-standing provincial concerns about the SCC's reference function. 

Because of that history, it is extremely unlikely that the Court would ignore the Act and refuse to hear this.

Unionist

Pondering wrote:

I just read the decision in a bit more detail and it confirmed what I was saying. They did not answer the question in 3 parts. They say the answered the first but it is clear that they put all three together because the first excluded the pipeline. 

The court said that after answering the first question (i.e. that jurisdiction is federal), the next 2 questions didn't exist. Hard to see what could be clearer than that. Assuming you read the decision, that is.

Pondering wrote:

Do you have any comments pertaining to the subject or are you just here to talk about me.

Do you even read what I post? Here's what I said:

Unionist wrote:

By the way, although I am not a lawyer, the court's decision seems obviously correct to me (even though I oppose the pipeline). I'm almost interested in reading BC's pleadings to see how they could have made a shred of a case. The SCC will uphold this decision.

You may agree or disagree, but please, read what I post before claiming that I only talk about you. The only thing I have to say about you is that you never change your mind - you just double down. Consider not doing that, ok?

Pondering wrote:

P.S. I didn't even remember linking to it so that you do remember and went back to look for it should be an embarrassment to you. 

I've read that sentence a few times, and it continues to be gibberish. You linked to the decision - then claimed you couldn't find it. That's forgiveable. Anyone can make a mistake or be forgetful. But you only ever double down.

Quote:

I don't know what it is you are trying to prove about me or why. I really don't give a shit. Get over yourself. 

You're rather brilliant, in my opinion, and fundamentally very progressive. But you need to maintain an open mind. That's what I'm hoping for. I'll try to get over myself, thanks for the advice.

WWWTT

JKR wrote:

Pondering wrote:

Discussion is purely speculative and completely amateurish. It's just a message board.

I agree this is just a message board. But why then is it so important for people here that they always prove others wrong and that they always be right and that they don’t admit to their mistakes that all of us amateurs and very many professionals inevitably make on forums such as this? There seems to be too much cutthroat debate here especially considering it is a message board for people who want greater social justice for our world. 

Ya actually there’s a lot of problems with debate forums. It’s not an exact science. Neither is law. 

In fact, only math and science is an exact science. But that to is up fore debate. Leaving only math as an subject that you simply can not debate. 1 + 1 will always equal 2. 

As far as social improvement of society goes, I recently started a thread on Portugal as an example that Canada may/should use. But no one other than kropotkin so far seems interested in what you’re saying. 

What I found is that Canadians are drawn to train wrecks. Don’t believe me? Check out what the popular threads are here.

Pondering

quizzical wrote:

well if the SCC upholds then QC will be getting a pipeline too.

and no pondering some people against TMX aren't against all pipelines 

I was responding to the claim that not wanting the pipeline is nimbyism. Nimbyism implies that the individuals do want something just not in their own backyard. No one I know of protesting pipelines wants the pipelines to go in elsewhere. 

Quebec will revive separatism before we allow a pipeline threatening our water supply through the province. The student strike would be nothing compared to the outrage Quebecers would express if the federal government tried to force a pipeline on Quebec territory against the will of the people. 

A solid 35 % of Quebecers remain sovereignists. Just because they don't want to talk about it and have given it up for the moment doesn't mean it will be that way forever. On top of those sovereignists there are lots nationalists who embrace Canada only because we have a great deal of autonomy. There are still others such as myself who are federalist but so strongly against the pipeline that I would go sovereignist if that is what it took to stop it. 

The feds may push a bit but they will stop long before the scheduling of a new referendum. 

The strength of resolve of the federal government and Alberta matters but the strength of resolve of the affected provinces matters more if they are willing to separate to stop  the pipeline because as separate countries Canada wouldn't have any right to force a pipeline through. 

The resolve of indigenous peoples matters too if enough are willing to arm themselves as happened in Oka and Montreal. Oka was just a land dispute over a town wanting to put a golf course in. 

In Quebec all the political parties are against the pipeline as well as an organization of 70 Mayors representing the majority of Quebecers. 

Civil order depends on the cooperation of the people. If Canada tries to force a pipeline or "energy corridor" on Quebec, Canada will lose the consent of the governed. 

BC and Quebec are large enough that if they choose to resist they can. 

Unionist

Now you're talking. Well said, Pondering!