Beer, Oil and the Supreme Court

Great thread, and great thread title, Pondering - thank you!

So Alberta can now put in all those bans and restrictions against BC?

Supreme Court Beer Ruling could apply to Pipelines: Experts

https://www.bnn.ca/supreme-court-beer-ruling-could-apply-to-pipeline-dispute-experts-1.1062070

That’s a switch, eh!

Now the truth is starting to come out.

Hundreds of business leaders urge BC NDP Premier John Horgan to continue his fight against the Kinder Morgan Pipeline

https://www.bnn.ca/hundreds-of-business-leaders-urge-b-c-s-horgan-to-keep-up-trans-mountain-fight-1.1061836 

The SCC has certainly let the fox out among the chickens with this ruling. The Feds have always appeared rather squeamish in enforcing federal jurisdiction on provincial protectionism. Maybe their legal opinions foretold of such a judgement.

Now that a breach has been made in their absolute authority, it behooves the Feds to use their singular ability to send the BC reference directly to the SCC rather than it wending its way through the judicial process for the next decade or so. If not, logic dictates more assaults on the federal jurisdiction in the name of everything but trade barriers.

NorthReport wrote:

That’s a switch, eh!

Now the truth is starting to come out.

Hundreds of business leaders urge BC NDP Premier John Horgan to continue his fight against the Kinder Morgan Pipeline

https://www.bnn.ca/hundreds-of-business-leaders-urge-b-c-s-horgan-to-keep-up-trans-mountain-fight-1.1061836 

Yeah, I think the issue is attracting more attention since the KM announcement as individuals put more thought into their position on the issue and make their positions known.

Also today I wish to commend 2 people in particular (and I know there are others) that have led the fight here against the KM pipeline and they are epaulo13 and Unionist for a job well done. I know this battle is still far from over but we need to celebrate our achievements both big and small. 

It has been very clear from the get go that Notley’s tactics have been an attempt to be punitive against BC. First with the wine nonsense and now the oil threat. And that is unconstitutional. Just go back and read her words. 

[85]                          We begin with Mr. Comeau’s submission that the principle of federalism supports full economic integration. We cannot accept this submission. The federalism principle emphasizes balance and the ability of each level of government to achieve its goals in the exercise of its powers under ss. 91  and 92 of the Constitution Act, 1867 . Full economic integration would “curtail the freedom of action — indeed, the sovereignty — of governments, especially at the provincial level”: K. Swinton, “Courting Our Way to Economic Integration: Judicial Review and the Canadian Economic Union” (1995), 25 Can. Bus. L.J. 280, at p. 291; see also D. Schneiderman, “Economic Citizenship and Deliberative Democracy: An Inquiry into Constitutional Limitations on Economic Regulation” (1995), 21 Queen’s L.J. 125, at p. 152. Reading s. 121 to require full economic integration would significantly undermine the shape of Canadian federalism, which is built upon regional diversity within a single nation: Reference re Secession of Quebec, at paras. 57-58; Canadian Western Bank, at para. 22. A key facet of this regional diversity is that the Canadian federation provides space to each province to regulate the economy in a manner that reflects local concerns.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17059/index.do

Protecting the coastline in an effort to limit the risks to the world class environment that a large part of the Salish Sea economy relies on would appear to be regulating in a manner that reflects local concerns. Burnaby's by-laws that the NEB says are irrelevant to how Kinder Morgan develops its property in Burnaby are likely also regulations that are of of local concern and they are enacted under provincial law. The NEB is a federal regualtory body and it seems under this decision it would not have the constitutional authority to overide the municipal building laws that all developers are required to follow even though those building regulations are some of the most restrictive in the Lower Mainland.

This decision is the most recent Supreme Court of Canada ruling, there is no higher authority on the issue. As for references to the Supreme Court over the current pipeline spat I personally think that the Court was sending clear messages to the various governments threatening to get into a legislation battle over the pipeline. When the PM of Canada is publically threatening to override provincial authority under the doctrine of "national interest" it is clear this case's obiter on cooperative federalism is instructive.

[82]                          For our purposes, it suffices to state that the federalism principle reminds us of the careful and complex balance of interests captured in constitutional texts. An interpretation that disregards regional autonomy is as problematic as an interpretation that underestimates the scope of the federal government’s jurisdiction. We agree with Professor Scott that “[t]he Canadian constitution cannot be understood if it is approached with some preconceived theory of what federalism is or should be”: F. R. Scott, “Centralization and Decentralization in Canadian Federalism” (1951), 29 Can Bar R. 1095, at p. 1095; see also P. W. Hogg and W. K. Wright, “Canadian Federalism, the Privy Council and the Supreme Court: Reflections on the Debate about Canadian Federalism” (2005), 38 U.B.C.L. Rev. 329, at p. 350.

[83]                          Thus, the federalism principle does not impose a particular vision of the economy that courts must apply. It does not allow a court to say “This would be good for the country, therefore we should interpret the Constitution to support it.” Instead, it posits a framework premised on jurisdictional balance that helps courts identify the range of economic mechanisms that are constitutionally acceptable. The question for a court is squarely constitutional compliance, not policy desirability: see, e.g., Reference re Securities Act, at para. 90; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at pp. 471-72, per Wilson J.; Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, at pp. 424-25, per Laskin C.J. Similarly, the living tree doctrine is not an open invitation for litigants to ask a court to constitutionalize a specific policy outcome. It simply asks that courts be alert to evolutions in, for example, how we understand jurisdictional balance and the considerations that animate it.

Uh-oh. BC NDP Premier John Horgan has incured the wrath of the Trudeau Liberals front guard, the Toronto Star.

What spiteful, derogatory, mean-spirited and divisive commentary! 

How B.C. blocking the Kinder Morgan pipeline does damage to us all

Besides the possible constitutional crisis, halting the oil pipeline also damages Canada’s reputation for foreign investment, which is essential to Ontario’s tech boom, writes David Olive.

https://www.thestar.com/business/opinion/2018/04/19/how-bc-blocking-the-...

Have to have a good chuckle at Canada's small-minded, the sky is falling, anytime they don't get their way, business community.

This article is practically useless and has glaring omissions - can you think of them?

Ottawa's plan B for Trans Mountain could be to find someone else to build it

The Trudeau government believes it could find others to build the pipeline if Kinder Morgan walks away

http://www.cbc.ca/news/politics/kinder-morgan-pipeline-consortium-1.4627476

Looks like the Trudeau & Notley Oil & Gas Axis might have blown it!

Supreme Court’s cross-border alcohol ruling could hit Alberta in pipeline dispute

It’s hard at first blush to see the link between the free movement of beer and the shipment of oil – but Thursday’s Supreme Court ruling on out-of-province alcohol includes wording that could hit retaliatory measures Alberta has aimed at B.C. in the continuing battle over the Trans Mountain pipeline expansion.

In its unanimous ruling in the case of Gérard Comeau, a New Brunswick man who was fined for bringing a large quantity of Quebec beers and spirits back home, the court upheld the New Brunswick restriction on possessing alcoholic beverages bought out of province.

But in doing so, the Supreme Court also gave a nuanced explanation that said while New Brunswick’s restriction is valid, no trade barriers between provinces should be created with the “primary purpose” of affecting flow of goods across boundaries. A rule designed to “enable public supervision of the production, movement, sale, and use of alcohol” is fine, but “a law that in essence and purpose impedes cross-border trade cannot be rendered constitutional.”

The wording might matter in the pipeline dispute, because Alberta introduced legislation this week that would allow the province to restrict the flow of its oil and refined petroleum products such as gasoline or diesel. British Columbia is not mentioned in the bill and the written aim is to get the best pricing for Alberta’s fossil-fuel products.

However, Premier Rachel Notley’s government has also indicated the bill’s political purpose is to push back against “extreme and illegal actions on the part of the B.C. government” in the fight over the $7.4-billion pipeline expansion.

On Thursday, the B.C. Attorney-General immediately called the Supreme Court ruling a boost to his province’s position that it would be unconstitutional for Alberta to restrict the flow of oil or gasoline with the primary purpose of putting pressure on B.C.

“[It’s] exactly what we have been saying in response to Alberta’s proposed legislation – that it’s unconstitutional, that they are not allowed to use their oil resources to punish other provinces,” David Eby said.

Likewise, Simon Fraser University political scientist Andrew Heard – whose work focuses on the constitution – noted that the intent of Alberta’s bill matters, even if the wording does not mention punishing B.C. “Many public statements by Premier Notley and other cabinet ministers have made that intention clear,” he added.

https://www.theglobeandmail.com/canada/alberta/article-supreme-courts-cr...

This case clearly says that provinces can enact laws that impact on interprovincial trade if they are for a proper local interest. The bylaws of the City of Burnaby are passed pusuant to BC provincial law. It seems to me that given the clear language in this case the City has every right to enforce its bylaws when Kinder Morgan wants to do major construction to expand its operations. I can't see how this decision leaves any room for a federal agenacy like the NEB to claim it can override them especially when its seems the rational is merely an difference in economic visions for the country.

6079_Smith_W wrote:

On the other hand, it is unfortunate how this gets in the way of wineries direct selling out of province. There really should be some exception for that, because right now some of them have said they will just continue to break the law.

I'm not quite sure I see the logic behind the "because" there. People should get an exemption from a law on the books, simply because they threaten to break it?  

No, and that isn't what I said.

The case wasn't actually brought by them, and it wasn't specifically about them, but rather an individual bringing goods in. I say "because"  because there is still a problem that should be resolved, just as there is in a lot of other areas, like marijuana sales.

They should get an exemption because it isn't quite the same as someone running over the border just to get a cut rate on booze, or a retail outlet trying to cut out the province. It is a question of buying a specialty product, and I think there is a fair case to be made that different rules should apply.

After all, it wasn't that M. Comeau wasn't allowed to bring beer over the border; he tried to take over the allowable limit. In the case of wineries, they can't direct sell.

As a comparison, I can go to another country and buy things that aren't approved for sale in Canada so long as it isn't something that is restricted. I can even order it in across the border. That isn't legally the case with alcohol in Canada.

https://www.theglobeandmail.com/report-on-business/provinces-keep-cork-o...

Pondering we disagree on the general rules of interpretation of law or even how law is interpreted here. Application is not as simple as you suggest and differences in cases as significant as these are always relevant given the types of control being discussed. I am not siding with the Federal Government position but I disagree with your legal analysis. The fact that there is shared powers of regulation actually diminish the provinces claim to use elements that it can share the regulation of to prevent the construction of the line. Essentially there is a valid debate on just how far the province can go in regulation and it likely extemely limited when it comes to the power to reject the project wholesale on constitutional grounds. First Nations en-route have a much stronger claim.

The areas of regulation are in fact potential shared powers as the power to determine if the project can go ahead is a Federal power. You also ignored the point that reference cases on not binding -- they are authorities. If they were binding you would have two issues, one, that law would become static. If that had been the cases the reference you mention could not have existed at all. The second is that the relevance of cases is not just a matter of consideration of a sentence in a decision but of context. This is critical since the context, including the parties, has bearing on the kinds of issues argued. Judges apply the law to determine the validity of the points argued. They can introduce new ones but the principle of adversarial law is that advocates for each side present their arguments. You cannot dismiss differences in context to the extent of comparing individuals crossing a border with a controlled substance to store it and consume it locally with a regulated export running through another province by, not destined for that province. You can certainly use these cases and I am sure this one can be argued but it is not a determination of a result. The lawyers and judges determing these cases are not robots and they do not use a single authority as a determination of a case. They weigh all arguments.

I would be very pessimistic about the potential to stop this pipeline if I felt that the position against relied on this case or the arguments made in the media or by people here about its applicability.

Pondering the second issue I take with your response is your mingling of merit arguments with jurisdictional ones. This is in fact one of the most common errors in legal argument made by non lawyers. During the time I practiced as a paralegal this caused many to lose.

The Liberals are making a mistake in the discharge of their jurisdiction in ways that are not relevant to whether they have that authority.

The strongest legal arugment on the table is that of the Indigenous First Nations. Opponents of the pipeline would be well-advised to support their efforts.

I don't know about down east, but when you cross the border on the #1 into Manitoba there is a big sign telling you to report in Virden if you have tobacco:

https://www.gov.mb.ca/finance/taxation/taxes/tobacco.html