Testing the Jurisdictional Waters: The Provincial Regulation of Interprovincial Pipelines

Abstract

In light of recent efforts by various provinces, but especially British Columbia, this article considers the constitutionality of provincial and municipal assertions of regulatory authority over interprovincial pipelines otherwise regulated by the National Energy Board on the authority of the federal government pursuant to subparagraph 92(10)(a) of the Constitution Act, 1867. The article begins by setting out some of these provincial efforts and then provides a primer on the applicable legal doctrines and principles, namely federal paramountcy, interjurisdictional immunity, and co-operative federalism. It then identifies and summarizes the most important recent administrative and judicial decisions to consider the constitutionality of provincial and municipal regulation in the interprovincial pipeline context. As will be seen, although some uncertainty remains, when viewed in aggregate these decisions and judgments shed considerable light on the contours of provincial and municipal authority over such pipelines. The next part of the paper frames the analysis that is likely to be applied to British Columbia’s most recent and ambitious efforts to enact spill response and recovery legislation that would apply to interprovincial pipelines, including the contentious Trans Mountain expansion pipeline project approved by the federal government in 2016. The article concludes with some observations about Canada’s current pipeline debate and environmental law and policy more generally.

Keywords: Environmental Law, Energy Law, Constitutional Law, Jurisdiction

JEL Classification: K23, K32