A construction worker walks past the steam generating facility at the Cenovus Foster Creek SAGD oil sands operations near Cold Lake, Alberta, July 9, 2012.Todd Korol/Reuters
Legislation that gave Alberta powers to restrict and control shipments of natural gas, oil and refined fuels to any destination outside the province expired late last week, just days after Premier Jason Kenney trumpeted “an important legal win” for the law at the Federal Court of Appeal.
The Alberta government says it decided to let the legislation expire owing to “legal challenges which only recently ended,” and that the law will be rebooted at some point.
“These proceedings gave us an opportunity to determine where the legislation could be improved,” Alberta Energy Minister Sonya Savage said in a statement on Tuesday.
“The government will introduce legislation to renew measures from the Preserving Canada’s Economic Prosperity Act that allow Alberta to regulate the production of our oil and gas resources.”
Often referred to as the turn-off-the-taps legislation, the act was introduced by Rachel Notley’s NDP government three years ago. It was a period of heightened tensions between Alberta and British Columbia over the latter government’s opposition to the Trans Mountain pipeline expansion to the West Coast.
The act was actually proclaimed into law by Mr. Kenney’s United Conservative Party government on April 30, 2019, following up on a campaign promise.
The law, never used, contained an automatic two-year sunset clause. As of Friday, it was automatically repealed.
Ms. Savage said her government is committed to protecting the value of the province’s resources and the prosperity of Albertans. But she also noted that British Columbia “has ceased any obstruction” to the pipeline expansion.
Just one week ago, the Federal Court of Appeal weighed in on the legal dispute between the two provinces over the law. The court set aside an injunction granted to B.C. in its constitutional fight over the matter, saying the dispute is more theoretical than real.
A lower court had suspended the act in 2019, and granted B.C. the temporary injunction blocking the law until the courts could decide if it was valid. Alberta appealed the ruling.
B.C. had argued in the Federal Court that the application of the law would cause the province irreparable harm and allow discrimination in the supply of fuels. But the higher court said last week that granting B.C. the injunction was “premature” because Alberta hasn’t yet used the legislation -- and without the details of regulations and a licensing plan from Alberta, the court should not assess the constitutional validity of the law.
The Federal Court of Appeal also ordered B.C. to pay Alberta’s court costs. In a tweet on April 27, Mr. Kenney said the decision was “an important legal win for Alberta today in our strategy to protect the value of our resources.”
However, in a blog post this week, a group of Alberta academics said given Alberta’s legal defence of the legislation, and Mr. Kenney’s tweet, the law could have died because the government didn’t know, or forgot about, the sunset clause.
“It certainly seems like if you’re going to court to fight to keep that legislation on the books, and fight against an injunction, then you’re also not wanting to have that legislation expire,” said one of the authors, University of Alberta economist Andrew Leach.
He said at the very least the law’s automatic repeal suggests the government wasn’t serious about using it. This speaks, “in some ways fairly,” to the government having other things such as the COVID-19 pandemic on its agenda, he added.
Law professor Eric Adams said the loss of the legislation isn’t terribly significant given that no steps were taken to create the regulatory framework that would actually put it into use.
“It remained a law of idea, more than practice,” said Prof. Adams, who teaches Canadian constitutional law at the University of Alberta.
He said the substance of B.C.’s challenge remains untested. Redrafting the law would allow the Alberta government to shed some of the baggage of its first incarnation, he said, which has often been framed as a means for trade-war like retaliation.
With a report from The Canadian Press
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