By Canadian Press

Federal judge grants B.C. injunction against Alberta’s turn-off-the-taps law

Sep 26, 2019 | 10:33 AM

CALGARY — A Federal Court judge has granted the British Columbia government a temporary injunction against an Alberta law that could have limited oil exports to other provinces.

In a decision released Tuesday, Justice Sebastien Grammond said Alberta’s so-called turn-off-the-taps legislation raises a serious issue.

“British Columbia … has demonstrated that an embargo of the nature evoked by the members of Alberta’s legislature when debating the act would cause irreparable harm to the residents of British Columbia.”

The B.C. government initially brought the action before Alberta’s Court of Queen’s Bench, which passed it to the Federal Court.

Alberta tried to strike the action by arguing that it wasn’t in the jurisdiction of the Federal Court, but the judge dismissed that motion. Grammond said B.C. has met the test for blocking the law until the courts can decide its validity.

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B.C. Attorney General David Eby said he’s pleased that the case will be going to trial.

“We think it’s quite a straight forward case, but the ultimate decision will, of course, be up to the court,” he told reporters in Vancouver.

Eby said B.C. doesn’t believe Alberta can restrict the flow of refined product to other provinces to punish them for political positions it doesn’t like.

“That’s our understanding of the Constitution,” he said. “Alberta has a different understanding and the court will be deciding about that.”

Alberta Premier Jason Kenney said they’re reviewing the decision to determine whether to appeal or make changes to bring the law into compliance.

“We as a government will do everything that we can within the law to protect the value of our natural resources,” he told reporters in Edmonton.

The turn-off-the-taps legislation gives Alberta the power to crimp energy exports from the province.  

The law was passed, but never used, by Alberta’s former NDP government as a way to put pressure on B.C. to drop its fight against the Trans Mountain oil pipeline expansion to the West Coast.

The new United Conservative government proclaimed it into force shortly after Kenney was sworn into office in April, but he had said it wouldn’t be used unless B.C. throws up further roadblocks to the pipeline.

B.C. had called the law a loaded gun and asked the courts to make sure it didn’t accidentally go off.

NDP Leader Rachel Notley said Tuesday that the injunction has rendered the law useless.

“We told the premier not to proclaim this legislation because it would be like blowing up the missile while it’s still on the launchpad,” she said in a news release.

Kenney responded by saying it was Notley’s government that wrote the bill.

“I assume former premier Notley got advice that this (bill) was compliant with the Constitution,” he said.

Notley later said in an interview that her government was careful to consider the constitutionality of the bill as it was prepared, and noted that the injunction isn’t tied to the constitutionality of the law.

If Kenney had concerns with the bill, she said he could have changed it before it was proclaimed.

Notley added that the legality of the bill was secondary to Kenney’s focus of making a public relations splash.

“It was all about political grandstanding,” she said. “It wasn’t about getting the job done.”

Grammond said in his decision that members on both sides of the Alberta legislature explained the law’s purpose in relation to the B.C. government’s actions on the Trans Mountain expansion project. 

“These statements make it abundantly clear that the purpose of the act is to inflict economic harm to British Columbia,” he said.

An embargo, he said, would not only cause a considerable increase in the price of gas and diesel in the province, but any fuel shortages could also endanger public safety.

The Trans Mountain expansion, first approved in 2016, would triple the amount of oil flowing from the oilsands to B.C.’s Lower Mainland and from there to lucrative new markets across the Pacific.

The federal government bought the existing pipeline last year for $4.5 billion after Texas-based Kinder Morgan threatened to walk away because of B.C.’s resistance.

The Federal Court of Appeal quashed the approval months later on the grounds that there hadn’t been enough consultation with First Nations or consideration of the pipeline’s potential impact on marine wildlife.

The project was approved for a second time by the federal cabinet this summer.

This report by The Canadian Press was first published Sept. 24, 2019.

— By Colette Derworiz and Dean Bennett in Edmonton, with files from Dirk Meissner in Victoria

The Canadian Press