Ruling upholds validity of provincial Environmental Management Act provision on spill contingency
The British Columbia Court of Appeal has affirmed a judgment determining that orders issued under s. 91.11 of division 2.1 of BC’s Environmental Management Act, 2003 (EMA) – a provision focusing on spill planning, preparedness, and response – were operative.
The EMA, an environmental protection statute, regulates the intentional or accidental release of potentially harmful substances into the environment. In Canadian National Railway Company v. British Columbia (Environmental Management Act), 2025 BCCA 156, the appellants were interprovincial railways transporting petroleum products across borders.
Orders made under s. 91.11 sought to require the appellants, as regulated persons under the EMA, to disclose information regarding the routes and volumes of crude oil and diluted bitumen that they transported through BC. The appellants challenged these orders under s. 100 of the EMA as constitutionally invalid, inapplicable, or inoperative due to their conflict with federal legislation.
The Environmental Appeal Board decided that the pith and substance of s. 91.11 – as well as s. 2(1)(b)(i) of the Spill Preparedness, Response and Recovery Regulation, B.C. Reg. 185/2017 – was the regulation of the management and operations of interprovincial railways.
Next, the board held that the challenged legislation was invalid because the federal sphere of jurisdiction under ss. 91(29) and 92(10) of the Constitution Act, 1867, governed interprovincial railways.
Alternatively, the board found that the challenged legislation was inapplicable to the appellants under the interjurisdictional immunity doctrine since it impaired their core powers as federally regulated interprovincial undertakings.
The board rejected the appellants’ argument that the orders were inoperative based on federal paramountcy because of their inconsistency with federal law. The board refused to determine the legitimacy of the appellants’ argument that the required disclosures raised security concerns.
The appellants requested judicial review. The chambers judge set aside the board’s decision upon making the following findings:
The judge also denied the appellants’ argument that the orders were inoperative based on federal paramountcy. He remitted the security concerns and the related evidentiary issues to the board for reconsideration.
The appellants appealed the judge’s decision. On cross-appeal, the respondents sought to set aside the judge’s remittal of the security issue to the board.
The Court of Appeal for British Columbia dismissed the appeal and cross-appeal upon upholding the chambers judge’s findings.
First, the appeal court ruled that the orders and the challenged legislation applied to the appellants. The appeal court explained that the directions to reveal route and volume information did not impair a core of federal power over interprovincial undertakings.
Next, the appeal court refused to find the orders inoperative under the federal paramountcy doctrine, given that there was no operational conflict between the orders and directions issued under pertinent federal legislation. The appeal court added that the orders’ operation would not frustrate the purpose of federal law.
The appeal court found no error in the judge’s remittal of the security concerns to the board on the basis that it would be in the best position to hear and assess the security issue.
The appeal court saw no error in the chambers judge’s finding that the challenged legislation’s pith and substance was spill planning, preparedness, and response, which fell within provincial jurisdiction under s. 92 of the Constitution Act.
The appeal court found no evidence supporting that s. 91.11 of the EMA intended to target interprovincial railways. Rather, it applied to every person who transported the listed substances in the prescribed amounts via pipelines, rails, or highways.
The appeal court ruled that the legislature intended the regulated persons to be those whose activities presented the most risk of harm in the case of a spill due to the dangerous nature and volume of the products transported.
The appeal court noted that the spill regulation’s definition of a regulated person was linked to substances listed in the relevant schedule, all of which were liquid petroleum products that would result in extreme risks upon release into the environment.
The appeal court found that the broad statutory context also suggested that the pith and substance of s. 91.11 was the minimization of the adverse effects of spills through the regulation of spill planning, preparedness, and response.
The appeal court noted that division 2.1 fell within part 7 of the EMA, titled “Powers in Relation to Managing the Environment” and that s. 5 of the EMA described the coverage of the federal environment minister’s authority as matters relating to the management, protection, and enhancement of the environment.
