Colby Cosh reviews the sad tale of the British Columbian government’s defeat before the Supreme Court of Canada over pipelines:
“Supreme Court of Canada, Ottawa” by daniel0685 is licensed under CC BY 2.0
So … yeah, that didn’t go real well. On Thursday the province of British Columbia sent its chosen representative, lawyer Joseph Arvay, to the Supreme Court to plead the oral case for B.C.’s law regulating bitumen in pipelines. John Horgan’s government had attempted to establish its own permit regime for pipeline contents, which are, under accepted constitutional doctrine, a federal responsibility. The B.C. Court of Appeal had wiped out the provincial law unanimously last summer.
Arvay’s task was widely recognized as a Hail Mary pass. But things got even more awkward as the hearing commenced and the justices of the Supreme Court interrogated him on his province’s logical, environmental, and even economic premises. An appellate court’s disposition is sometimes hard to ferret out in its hearings, but this one was so rough that Arvay was reduced to grumbling “If I’m not going to win the appeal, then I don’t want to lose badly.” Alas, the judges did not even see the need to deliberate over their reasons: they at once, and as one, ruled against B.C.
Which is not to suggest that Mr. Arvay didn’t do the best possible job. If we’re sticking with the football metaphor, the problem all along was the game plan. Given the clear federal responsibility for interprovincial pipelines, as “Works and Undertakings connecting … Provinces,” the B.C. government had no choice but to downplay the conflict between the purpose of its proposed environmental permits and the purpose of the ones the federal government hands out. Arvay had to try to convince the ermine gang that a law applying exclusively to the contents of a pipeline wasn’t a regulation of the pipeline.
“The only concern the premier, the attorney general and the members of the government have had is the harm of bitumen,” Arvay protested. “It’s not about pipelines. They’re not anti-pipelines, they’re not anti-Alberta, they’re not anti-oilsands, they’re not anti-oil.”
It’s enough to almost make one sympathetic to the more radical strategy of argument pursued at the hearing by Harry Wruck, a lawyer for Ecojustice Canada who appeared as an intervener supporting B.C. Wruck put before the Supreme Court the same idea he had presented to the BCCA: if the Constitution is a threat to killer whales, why, then, to hell with the Constitution.
