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B.C. Appeal Court's Trans Mountain ruling may not be quite the slam-dunk Alberta thinks it is

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An undated stock photo of work on the Trans Mountain Pipeline Photo: Facebook

The unanimous ruling Friday by the British Columbia Court of Appeal that the B.C. government does not have the constitutional authority to control what goes inside the federally regulated Trans Mountain pipeline is being hailed as a great victory in Alberta.

Church bells didn't actually ring on Friday, but the general tone of media coverage of the decision by five justices of the B.C. Court of Appeal was that it was "a great victory for Premier Jason Kenney" and a "humiliating court defeat" for B.C. Premier John Horgan.

Both of the passages in quotation marks were actually written in Postmedia's Calgary Herald, which may be limbering up for the Toronto-based corporation's hoped-for new role as part of Kenney's partisan "war room" anti-environmentalism operation.

The first statement is obviously untrue, beyond the fact the ruling was the one longed for by Kenney and his new United Conservative Party government. Kenney literally had nothing to do with it.

If any single politician deserves credit for the victory, it would probably be Prime Minister Justin Trudeau, whose Liberal government bought the pipeline when its private-sector owner was about to pull the plug on the expansion project, approved it once and will likely approve it again next month, and instructed a senior Justice Department counsel to make the arguments that ultimately prevailed before the court.

Don't look for anyone in Alberta to admit this truth, though. The ironic ultimate result, one suspects, is that in the fall federal election campaign Trudeau will get all of the blame from outraged West Coast environmentalists and none of the credit from Alberta's perpetually dissatisfied bitumen boosters.

As for the second statement, a better case can be made for that given the unanimity of the court's decision, but it is unclear whether Horgan's government ever expected to win this case, the outcome of which was confidently predicted by most legal scholars.

While Horgan and his attorney general, David Eby, immediately signalled their intention to appeal the ruling to the Supreme Court of Canada -- to predictable howls of outrage from many of the usual suspects here in Alberta -- there was a victory for B.C. in the ruling obscured by the prima facie defeat on Friday.

Remember, B.C. brought this forward as a reference case, to see if its argument for its right to regulate the contents of modes of transportation passing through the province's territory would pass muster. So, by losing and being prepared to try again, it can be argued it wins politically by demonstrating its good intentions to the Green Party MLAs propping up its tenuous hold on the B.C. legislature in Victoria, and to voters who might next time be tempted to go Green.

"You could almost feel sorry for the guy, if he hadn't directly caused so much economic pain in Alberta," complained a Herald columnist, apparently forgetting that Alberta's pain was mainly caused by the Federal Court of Canada's ruling on the slapdash way the project was originally approved.

Friday's ruling also provides the B.C. NDP with a certain amount of political cover if it is still in power when the inevitable bitumen spill takes place in southern B.C.'s inland maritime waters.

More importantly, though, since it has now been clearly established that B.C. cannot control what goes through a federally regulated pipeline, a strong argument can be made that neither can Alberta.

Alert readers will recall the legislation, passed by Rachel Notley's NDP government and proclaimed into law by Mr. Kenney's UCP, that was designed to cut off shipments of gasoline to British Columbia in the event its government and people won't knuckle under to Alberta's pipeline demands.

Surely what goes for the goose must go for the gander, all the more so if the B.C. appeals court's ruling is confirmed by the Supreme Court of Canada. Such an outcome would slyly deprive Kenney's government of this much-touted weapon in the event engaged coastal British Columbians find other ways to oppose or stall more pipelines running through their territory, either in the courts or in the political arena.

B.C.'s vow to appeal the matter to the Supreme Court is widely seen in Alberta as another outrage, merely an effort to stall the pipeline again. It's just politics, pipeline supporters screech.

This is a bit rich coming from supporters of the UCP when Kenney is backing equally unpromising legal efforts by Conservative allies like Ontario's Doug Ford and Saskatchewan's Scott Moe to stop the federal carbon tax.

These cases unquestionably are motivated strictly by politics, not by sound legal reasoning.

But there you go, as Kenney clearly understands, even if many of his supporters don’t, that's what happens in a democracy with the rule of law. So don't expect this story to end any time soon.

Large political headlines likely today

We can expect to learn today the political plans of former Liberal cabinet renegades Jody Wilson-Raybould and Jane Philpott, and the details of the Kenney government’s tendentiously titled "Open for Business" Act, which will likely be aimed mainly at restricting the constitutionally protected collective bargaining rights of unionized workers and giving employers carte blanche to treat employees however they like.

David Climenhaga, author of the Alberta Diary blog, is a journalist, author, journalism teacher, poet and trade union communicator who has worked in senior writing and editing positions with The Globe and Mail and the Calgary Herald. This post also appears on David Climenhaga's blog, AlbertaPolitics.ca

Photo: Facebook ​

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