SCC Dismisses BC's Bid To Regulate Interprovincial Oil Transportation

Introduction

On January 16, 2020, the Supreme Court of Canada unanimously dismissed British Columbia's attempt to regulate the transportation of heavy oil through the province, reaffirming the British Columbia Court of Appeal's (BCCA) reference decision in 2019.¹ The nine-member panel delivered a rare oral decision from the bench, stating that it agreed with the BCCA's reasons. This strong, unanimous decision provides much- needed legal clarity on federal-provincial energy jurisdiction and removes a major potential hurdle for the completion of the TMX Pipeline.²

Background

In May 2019, the BCCA issued its reference opinion concerning BC's proposed amendments to its Environmental Management Act (EMA).³ In short, the proposed Amendments sought to establish a provincial permitting regime for any incremental increases in "heavy oil" possession in the province. Since heavy oil originates in Alberta and Saskatchewan, and only enters BC via interprovincial