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Brad Wall: Recent Court Decisions on TMX- Actually Positive

Canoe Financial 


Bias confirmation.  We’ve all experienced it. Like when we buy a new vehicle, a make and model we haven’t really noticed or favoured before.  In fact, in the back of our mind, while we were doing the sales dance in the showroom, the doubts keep creeping in.  Why have I never seen any of these out in the street?   Why am I thinking about being the first one in the history of ever to buy this vehicle?  And then we drive away from the dealership and our doubts are relieved because this make and model of vehicle is, in fact, everywhere!

It turns out many people have also bought that very vehicle.   So many.  And we feel better.

Of course, there are no more of them than before we walked onto the dealership lot.  We just never noticed them before we bought one.  This is all a form a confirmation bias.  Seeing things through the lens of our own this example.. a very recently and expensively acquired bias.

Then too we carry our own bias to the oil and gas news and pipelines news we consume.  It’s hard to be too critical of the fact that western Canadians who understand the importance of the oil and gas business to our collective and individual quality of life have a negative bias when it comes to sector news we read or watch or hear.  We are seem to always be prepared for the worst.

The recent court rulings on TMX evinced a negative reaction from many in the sector.   The top line reporting of those rulings confirmed a negative bias: that no pipelines will ever get built  again…ever.

But here’s why these two recent rulings might actually be a reason for hope.

In the case of the federal court of appeal ruling a few weeks ago on 12 motions to intervene against TMX.

6 of the 12 motions were defeated including 2 of them from First Nations.  Unprecedented.

Other intervenor motions denied came from Youth Climate Strikers, BC Nature, Raincoast and the City of Vancouver (you may want to consider their application to intervene  when planning to spend your tourism dollars )

In the previous round on TMX every intervenor motion was allowed with no explanation from the court.  In the Northern Gateway round the same was true.

So this was a marked changed in a court ruling on a pipeline approval process.  In fact, I’ve heard concerns  the ruling was ‘too good’ and that an application for a leave to appeal to the Supreme Court might benefit from a concern as to how far this ruling moved the pendulum.

Then there is this week’s ruling from the British Columbia Court of Appeal – another win for TM that in some quarters has been  mischaracterized as a setback. The Court of Appeal heard appeals from Vancouver and the Squamish FN in which the main appeal claim was:

BC approved the TM Pipeline based on the NEB Report. The NEB Report was sent back to the NEB for Reconsideration. So, the Provincial approval (the “EAC”) should be quashed and the whole process must restart at ground zero.

The BCCA rejected this argument entirely, instead holding that the EAC stands – it is alive and well which means that TM can continue to construct. But, if the BC government  believes that the conditions that attach to the EAC should be revised because of the NEB reconsideration, then it should revise them. Importantly, the Court was very clear that any such revision must fall squarely within BC’s very limited  (if any) jurisdiction over federal pipelines. The Court helpfully added: “BC cannot prevent or impede construction or operation of the pipeline” and “cannot order assessments that the NEB refused to order”.

It’s understandable that many were quick to leap on what on the face of these rulings seem to confirm our negative bias.   On these occasions however it is even more important to remain open to the positive even if it’s not in the top line report or the tweets we read.  There is much in these rulings that commend a positive reaction; some reason for hope.  Rational hope in Canada’s oil and gas sector is essential just now.

The sector needs it, Calgary needs it, Alberta, my province needs it, and Canada needs it.

Brad Wall

Special Advisory

Osler, Hoskin and Harcourt LLP

Brad Wall served as the 14th Premier of Saskatchewan from 2007 to 2018

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