British Columbia (Environmental Management Act) v. Canadian National
Railway Company Page 11
Canadian Pacific Railway Company (“CP”) and Canadian National
Railway (“CN” and, collectively with CP, the “Railways”) intend to
challenge the constitutional validity, constitutional applicability, and
constitutional operability of:
Section 91.11 of the Environmental Management Act, S.B.C.
2003, c. 53 (the “Act”); and
Section 2(b)(i) of the Spill Preparedness Response and
Recovery Regulation, B.C. Reg. 185/2017 (the “Regulation”),
(collectively, the “Impugned Legislation”).
The material facts giving rise to these constitutional questions are set
forth in paragraphs 1-58 of the Railways’ Petition Response in
proceeding No. S-202461 (Victoria Registry) and paragraphs 1-6 of
Part 2 of the Railways' Petition to the Court in proceeding
No. S-202967 (Victoria Registry), copies of which are attached.
The Railways intend to challenge the constitutional validity,
applicability, and operability of the Impugned Legislation on the
following bases, some of which are in the alternative:
The Impugned Legislation is ultra vires the Province as outside
the Province’s legislative authority under s. 92 of the
Constitution Act, 1867. The Impugned Legislation specifically
targets federal undertakings by purporting to regulate virtually
all aspects of the spill planning and preparedness practices of
interprovincial railways. By virtue of sections 91(29) and
92(10) of the Constitution Act, 1867, railways that cross
provincial boundaries -- whether into another province or into
another country -- are solely within federal jurisdiction. The
Impugned Legislation is an unlawful attempt to single out and
regulate the activities of interprovincial undertakings contrary
to s. 92(10)(a) and (c) of the Constitution Act, 1867.
The Impugned Legislation is constitutionally inapplicable to the
Railways by virtue of interjurisdictional immunity because the
Impugned Legislation impairs the core of the federal power
over interprovincial undertakings or vital aspects of the
Railways’ undertakings, including spill preparedness and
planning and safety and security and the Railways’ allocation
of personnel and resources in relation to those things.
The Impugned Legislation, and the orders issued to the
Railways under the Impugned Legislation by the Director,
Environmental Management Act (the “Orders”), are
constitutionally inoperable on the basis of paramountcy.
Protective Direction No. 36 (“PD 36”), issued under s. 32 of the
Transportation of Dangerous Goods Act, 1992, S.C. 1992,
c. 34, provides for disclosure of certain information to
municipalities under strict terms of confidentiality. The
Impugned Legislation and the Orders would require the
disclosure of that information to the Province, without any
confidentiality protections. The Impugned Legislation and the