“For the court to consider such a claim, the Act must first be in force.” – Justice R.J. Hall, Alberta Court of Queen’s Bench
A judge has dismissed the British Columbia government's request to declare unconstitutional an Alberta law that could restrict the flow of refined oil products to BC.
The attorney general of BC alleged in a statement of claim that the Preserving Canada's Economic Prosperity Act was meant to counteract steps taken by BC in its opposition to the Trans Mountain pipeline project.
BC had asked Alberta's Court of Queen's Bench to declare the law unconstitutional, but Justice R.J. Hall wrote in a decision issued Friday that since the law was never officially proclaimed, the request to strike it is premature.
The Act was passed by the Alberta legislature last May and allows limits on fuel exports to BC.
Plans to triple capacity along the existing Trans Mountain pipeline from Edmonton to Burnaby have pitted Alberta and the federal government against BC's government, which says the risk of a spill is too great for the province's environment and economy.
Hall wrote that should the Alberta government proclaim the Act into force, BC's attorney general may file again.
“Without giving my opinion here, as to the propriety of an injunction application before proclamation of a statute, I am of the view that a claim seeking a declaration as to constitutionality of an Act that has not yet been proclaimed, is premature,” Hall wrote.
“For the court to consider such a claim, the Act must first be in force.”
Hall wrote that while BC argued that courts consider interim injunctions against laws that have been passed but not proclaimed, he noted that BC didn't ask for an injunction — only that the law be declared unconstitutional.
BC Attorney General David Eby argued before the challenge was launched that the Alberta law was unconstitutional because one province cannot punish another.
Alberta Premier Rachel Notley defended the law when it was passed, saying her government doesn't want to impose hardship on BC businesses and families, but Alberta must also safeguard its interests. She also said she was confident it would withstand a legal challenge.
No date has been set for proclaiming the law, although Alberta's energy minister, Marg McCuaig-Boyd, said Saturday that it “remains available if necessary.”
Hall noted in his decision that BC filed an affidavit from an official in the province's Ministry of Energy Mines and Petroleum Resources, which said approximately 55 percent of BC's gasoline and 71 percent of its diesel is imported from Alberta refineries.
He said the affidavit noted the majority of that fuel travels through the Trans Mountain pipeline, carrying an average of eight million litres per day of refined petroleum products from Alberta to BC.
“It says that reductions in supply from Alberta will cause shortages in British Columbia and that the result could be increased prices, lack of supply and civil unrest in British Columbia,'' Hall wrote, adding that lawyers for BC's attorney general argued the potential effects made it important for the court to decide whether the law was legal.
“The affidavit makes interesting reading as to BC's supply of gasoline and diesel fuel, and its dependence upon Alberta,'' Hall added.
The National Energy Board on Friday gave conditional endorsement of construction of the Trans Mountain pipeline expansion, saying the project's benefits outweigh its negative impacts on killer whales and potential environmental damage if there's a spill.
