By John Riddell, with thanks to the many Toronto-area ecological activists who reviewed and edited this text. Also available in leaflet format (see below).
On August 28, 2014, Toronto City Council voted overwhelmingly to ask pipeline company Enbridge Inc. not to pump dangerous tar sands oil (diluted bitumen) across the city. Enbridge ignored City Council’s request.
Enbridge’s troubled Line 9 project, running across the top of the city near Finch Ave., poses an urgent threat to the health of Toronto residents.
Meanwhile, on the rail line crossing mid-Toronto, rail tanker cars carrying another form of unconventional, toxic crude oil pose a similar danger. This equally unconventional crude called Bakken fracked oil killed 47 people when it exploded in Lac Mégantic in 2013.
Our city government already tightly regulates the transport of gasoline and many other hazardous substances. Toronto needs similar rules to prevent the transport of toxic unconventional oil by pipeline or rail. The public health dangers are alarming: potentially lethal explosions, fouling of the city’s water supply, poisoning of its atmosphere.
Railways and pipelines are regulated by the federal government. But Canada’s Supreme Court has acknowledged municipalities may need to act beyond their normal jurisdiction to protect public health and the environment.
Supreme Court ruling
In its 16 October 2013 submission to the National Energy Board (NEB) on Line 9, the City of Toronto cited a Supreme Court precedent (Spraytech v. Hudson, 2001): “The Supreme Court here refers to the principle of ‘subsidiarity’ which suggests that local governments, being the closest to the people, should be empowered to exceed not lower national norms” [citing] “the role of municipalities as ‘trustees of the environment’” said City Solicitor Graham Rempe.
Spraytech v. Hudson upheld bylaws passed by many cities, including Toronto, that protected residents' health by stopping the use of weed-killers on lawns. The court overruled a protest by the chemical companies that regulation such chemicals lay outside municipal jurisdiction.
The Supreme Court has also cited the “precautionary principle”, whereby “environmental measures must anticipate, prevent, and attack the causes of environmental degradation”, even if there is a “lack of full scientific certainty” regarding “serious or irreversible damage”.
Burnaby leads the way
A recent NEB order violating the spirit of this Supreme Court decision is now being appealed to the Federal Court of Appeal by the City of Burnaby, BC. The NEB had overruled a Burnaby bylaw protecting a city park from damage by pipeline company surveyors.
Burnaby says the NEB lacks authority to take such an action. “No federally appointed panel should have that power; it doesn’t exist in the NEB Act, and it has never been claimed before by any federal tribunal. This is a very serious question that a higher court needs to decide”, says City of Burnaby counsel Greg McDade.
Burnaby supporters have encapsulated this position in the term “Intra Vires” (Within Our Jurisdiction).
Burnaby has invited other municipalities to join in their submissions on this issue to the federal court.
Toronto needs to act
Other jurisdictions have taken initiatives similar to the Burnaby’s bylaw. For example, in the United States, South Portland (Maine) blocked use of its port as an export point for Line 9 tar sands oil.
Line 9 and rail carrying fracked oil in Toronto
Toronto should adopt a bylaw banning the transport of unconventional oil such as diluted bitumen and Bakken fracked oil across the city. Doing so would not only protect Toronto residents, but would add an authoritative voice to those across Canada calling for protection of municipal authority over public health and local environmental issues.
Intra Vires
A decision by the Supreme Court to uphold the right of Canadian cities to pass bylaws to protect residents will change the balance of power in Canada toward more local control. This can pave the way for wider participation In key decisions like Line 9. Cities can become the heart of a new, more direct democracy which values the commons and climate justice, while fostering community decision-making.
Sources:
August 28 decision: http://www.bit.ly/1olkj3J
Rempe: http://bit.ly/1tYLaqw (PDF)
Spraytech v. Hudson: http://bit.ly/1yMjWGN
Precautionary principle: http://bitly.com/1qJkfRY (PDF)
Burnaby: http://bit.ly/1zNF1oC
Published by:
East End Against Line 9 http://eastendnotar.org
StopLine9-Toronto http://stopline9-toronto.ca
Leaflet version available at:
http://www.stopline9-toronto.ca/line9toolkit.php (bottom of page)
http://eastendnotar.org/2014/11/09/intra-vires-within-our-jurisdiction/
