VANCOUVER—In the worsening feud over Kinder Morgan’s Trans Mountain pipeline, British Columbia premier John Horgan could have more legal ground to stand on than his counterpart in Alberta has alleged, according to several constitutional law experts.

But as Horgan’s government drafts its promised reference question for either B.C.’s Supreme Court or Court of Appeals, the wording of that proposal must be very careful if he has any hope of winning a judge’s blessing.

A reference court case is a way for a government to test in advance whether a proposed law is legal before passing it — and potentially stave off future legal challenges to that law.

Such a case, explained Joel Bakan, at University of B.C.’s Allard School of Law, is one way a government can test a law or regulation without passing a law that might end up being challenged at the Supreme Court of Canada.

“Either way, at some point the issue will be determined by the Supreme Court of Canada,” he said.

Horgan told reporters the reference case is coming soon, but did not specify when it would be filed. Experts said any further delay could be construed as unnecessarily stalling the project.

“B.C. hasn’t helped itself, it has taken far too long,” said Jason MacLean, assistant professor of environmental law at the University of Saskatchewan. “If the court were to rule that the intention and purpose of the regulation is actually just to impair the project, that would be seen as (an) attempt to usurp the federal government’s authority.

“But as long as that regulation is territorially limited within British Columbia to protect B.C. land, waters and the coast … the B.C. Supreme Court set out very clearly in its 2016 Coastal First Nations decision about the Northern Gateway that B.C. not only has the right but the responsibility to take measures designed to protect its economy, culture, social and environmental interests.”

MacLean said that since provinces have jurisdiction over environmental protection, but Ottawa has jurisdiction over pipelines between provinces, the two conflicting authorities “can co-exist” constitutionally speaking, but a court would have to decide between them. But B.C., he argued, is not in the wrong constitutionally for asserting its environmental concerns.

Justin Trudeau says the federal government remains “determined” to see the Trans Mountain pipeline expansion built after Kinder Morgan hit pause on the project, but the prime minister wouldn’t say what Ottawa’s next steps would be. (The Canadian Press)

Prime minister Justin Trudeau told reporters after the meeting he’s “actively pursuing legislative options that will assert plus reinforce the government of Canada’s jurisdiction in this matter, which we know we clearly have.”

The criticism didn’t just come from out-of-province.

“He has intentionally created a constitutional crisis and now has nothing to show for it,” said B.C. Liberal leader Andrew Wilkinson in a statement. “… Despite being invited to Ottawa to collaborate and find a solution, Horgan has come home with nothing for B.C.”

Last week, business group leaders lambasted the B.C. government for threatening investors’ confidence in Canada’s economy, after Kinder Morgan said it would halt all “non-essential spending” on its pipeline project.

That announcement came after Horgan said he wants to review how to clean up a diluted bitumen spill. Until then, Horgan said he would oppose increasing the bitumen through the pipeline now.

Once completed, the newly twinned pipeline would see three times more diluted bitumen able to flow from Alberta’s oil sands to the B.C. coast in Burnaby.

“That seems to be the whole point of building the pipeline, so I don’t see how it couldn’t be impaired,” UBC Allard Law professor Elizabeth Edinger told StarMetro. “(B.C.) can certainly enact laws dealing with the protection of the environment because the environment within B.C. is for the B.C. government to protect and look after.

“However, if the application of those provincial laws or regulations has the effect of impairing a federal work and undertaking, then those laws — even though they’re valid — don’t apply.”

But Horgan returned to B.C. unbowed on his stance, even threatening legal action against Alberta over its new legislation allowing the province to restrict oil flow west.

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“As the premier of B.C. it is my duty to be vigilant to ensure we are not just protecting our environment, but we're maintaining a positive, diverse and competitive economy,” Horgan said on Sunday. “We remain committed to ensuring we're protecting our jurisdiction … I and he (Trudeau) will not be in power forever and that's why the jurisdictional question is so important.”

Edinger speculated the reference question may be a “procrastinating” tactic, since whatever the court rules can be appealed and extend the case — and predicted that B.C. won’t ultimately succeed in its quest in the courts.

“I would be very surprised if the Supreme Court of Canada, assuming it gets there, found that any provincial laws or regulations such as are contemplated by the B.C. government, are found to be applicable,” she said. “But courts surprise me all the time.”

—With files from The Canadian Press

David P Ball is a reporter at StarMetro Vancouver, covering democracy and politics. Email david.ball@metronews.ca

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