Canada: BC Court Of Appeal Rejects Proposed Amendments To Environmental Management Act

In a unanimous 5-0 reference decision, on May 24 the British Columbia Court of Appeal ruled against the BC government's proposed amendments to the Environmental Management Act (EMA), finding that the amendments would impermissibly target a federal undertaking. The proposed law would give BC the ability to control the amount of heavy oil that flows into the province by requiring pipeline companies to obtain a "hazardous substance permit." The Court of Appeal's decision has significant, positive implications for the future of the Trans Mountain pipeline expansion project (TMX), and is timely given Alberta Premier Jason Kenney's recent decision to proclaim legislation that could restrict the flow of crude oil into BC into law.

Background – the Trans Mountain pipeline expansion and Alberta's Bill 12

Amidst growing tension with the BC government over TMX, former Alberta Premier Rachel Notley passed Bill 12 last year. Bill 12 permits Alberta's energy minister to restrict oil and gas and refined fuel shipments. BC immediately challenged the constitutionality of Bill 12, but the Alberta Court of Queen's Bench ruled BC's claim was premature, given that the government had not yet proclaimed the legislation into force. This changed on April 30, 2019, immediately after new Premier Jason Kenney was sworn in, with the lieutenant governor's proclamation of the Preserving Canada's Economic Prosperity Act (the Prosperity Act). BC's Attorney General David Eby has again sought an injunction against the Prosperity Act, and a hearing is scheduled for June 6.

In parallel, the National Energy Board (NEB) released its expanded reconsideration report in February 2019. In 2018, the Federal Court of Appeal found that the NEB's original report on TMX was deficient because it had not sufficiently considered marine impacts related to endangered species and potential mitigation measures.

The reconsideration report continues to conclude that TMX is in the public interest. It includes 156 conditions that Trans Mountain must meet in order to resume construction and 16 non-binding recommendations that focus on mitigating marine life impacts and consulting with affected Indigenous communities. The federal government has not completed additional consultation with Indigenous communities, and has therefore not yet decided whether to approve TMX based on the reconsideration report. A decision is expected on or before June 18, 2019.

Environmental Management Act proposed amendments

On January 30, 2018, BC announced it would consult on potential EMA regulations to restrict "the increase of diluted bitumen transportation," causing significant controversy. In response, BC proposed precise EMA amendments, and referred them to the BC Court of Appeal to confirm their constitutionality. New heavy oil imports – whether by rail, expanded pipeline, or otherwise – would be managed through a discretionary permitting process that would require an applicant to establish a relief fund and demonstrate satisfactory transportation procedures, among other requirements.

The proposed amendments superficially resemble the potential effects of the Prosperity Act. Although the basis of the Prosperity Act is to maximize the value of a provincially owned resource, rather than environmental protection, it would give Alberta control over exporting oil into BC. Similarly, the amendments to the EMA would have given BC the ability to control the inflow of heavy oil into the province.

BC Court of Appeal decision

In the constitutional reference before the Court of Appeal, the Government of Canada argued that the amendments target one substance (i.e., heavy oil) in one particular interprovincial pipeline (i.e., TMX), which is exclusively under the federal power to legislate on the basis of it being an interprovincial (or "federal") undertaking.

BC first argued that any constitutional concerns were premature absent a permitting decision, and second that the proposed EMA amendments could co-exist with the existing federal scheme under the principle of "cooperative federalism," untroubled by the constitutional doctrines of either "interjurisdictional immunity" or "paramountcy." All parties recognized that protecting the environment legitimately falls within the scope of provincial constitutional powers concerning "Property and Civil Rights" and "Matters of a merely local or private Nature," but differed on how far BC's measures could go.

All five BC Court of Appeal justices sided with Canada and held that the EMA's amendments deal with matters outside of the province's jurisdiction. Justice Newbury, writing for the court, gave short shrift to BC's prematurity argument, noting the Government of BC initiated the reference.

She then recognized the well-established principles that environmental protection is a shared jurisdiction between the provinces and the federal government, some overlap between the two levels of government's laws is inevitable and tolerable, but the overlap cannot be too great:

Part 2.1 does cross the line between environmental laws of general application and the regulation of federal undertakings. Even if it were not intended to 'single out' the TMX pipeline, it has the potential to affect (and indeed 'stop in its tracks') the entire operation of Trans Mountain as an interprovincial carrier and exporter of oil. It is legislation that in pith and substances relates to, and relates only to, what makes the pipeline "specifically of federal jurisdiction" (at para. 101).

She ruled the proposed amendments' effect would be to "usurp" the NEB's role, which had already considered and imposed conditions on Trans Mountain for environmental protection, and was the body "entrusted with regulating the flow of energy resources across Canada to export markets." As "the project affects the country as a whole, [it] falls to be regulated taking into account the interests of the country as a whole" (para. 104).

She rejected BC's argument that Part 2.1 could be read as restricted to remediation and clean-up of environmental damage once it had occurred, finding that the proposed law did not contemplate this limitation.

Justice Newbury's analysis did not engage with either of the constitutional doctrines of interjurisdictional immunity or paramountcy, because she ruled the "pith and substance" of the proposed amendments were so clearly aimed at federal matters that they were unconstitutional – this, despite robust efforts by BC to describe its proposed legislation as broadly applicable to any manner of bitumen entering the province.

The BC government does not require leave from the Supreme Court of Canada to appeal this decision, and Attorney General Eby has announced that BC will indeed appeal. If the appeal is ultimately heard by the Supreme Court of Canada, it will be interesting to see whether the court accepts Newbury J.A.'s decision to determine the reference question on the basis of a "pith and substance" analysis without engaging with other established doctrines, or if it will recast her reasons to further clarify this area of the law.

Likewise, the Court of Appeal's decision is interesting relative to BC's challenge to Alberta's Bill 12. BC can be expected to argue that Alberta's broad economic justifications for Bill 12 amount to retaliating against BC's opposition to TMX, comparable to Canada's successful argument that BC's broad environmental objectives amounted to targeting a federal project. Of course, BC may face challenges arguing that Alberta's Prosperity Act legislation targets a federal matter, while simultaneously arguing that its proposed EMA amendments do not.

The authors wish to thank summer student Max Waterman for his help in preparing this legal update

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see

Law around the world

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions