One Step Closer To Expanding Trans Mountain Pipeline: A Case Comment On Reference Re: Environmental Management Act (British Columbia), 2019 BCCA 181

On May 24, 2019, the British Columbia Court of Appeals (BCCA) released its highly anticipated reference decision regarding proposed amendments (the Proposed Amendments) to British Columbia's Environmental Management Act (the Act). In a unanimous decision, the BCCA's five-member panel held that the Proposed Amendments were outside the Province's constitutional authority, finding that their pith and substance was to place conditions on, and if necessary, prohibit the carriage of heavy oil through an interprovincial undertaking, which is within the Federal Government's exclusive constitutional jurisdiction.

The Proposed Amendments were found to effectively restrict the transportation of heavy oil into and across British Columbia. The BCCA's judgement garnered national attention, primarily due to the Proposed Amendments' introduction of a hazardous substance permit and, more particularly, the Proposed Amendment's impact on the Trans Mountain Expansion Project (TMX). Unsu