Court File No.: 38682

IN THE SUPREME COURT OF (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN: ATTORNEY GENERAL OF BRITISH COLUMBIA Appellant and

ATTORNEY GENERAL OF CANADA Respondent and ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF ONTARIO, PROCUREURE GÉNÉRALE DU QUÉBEC Interveners (By Right)

CITY OF VANCOUVER, CITY OF BURNABY, ECOJUSTICE CANADA, COUNCIL OF THE HAIDA NATION, HEILSTSUK FIRST NATION, ASSEMBLY OF FIRST NATIONS, LITTLE SHUSWAP LAKE INDIAN BAND, TRANS MOUNTAIN PIPELINE ULC, BEECHER BAY FIRST NATION, SONGHEES NATION AND T’SOU-KE NATION, LAX KW’ALAAMS BAND, CANADIAN ASSOCIATION OF PETROLEUM PRODUCERS, CANADIAN FUELS ASSOCIATION, CANADIAN ENERGY PIPELINE ASSOCIATION, COALITION OF INTERESTED PARTIES, RAILWAY ASSOCIATION OF CANADA, CONSORTIUM OF ENERGY PRODUCERS (SUNCOR ET AL), IN THE MATTER OF THE CONSTITUTIONAL QUESTION ACT, R.S.B.C. 1996, C. 68, ECOJUSTICE CANADA SOCIETY, HEILTSUK TRIBAL COUNCIL, EXPLORERS AND PRODUCERS ASSOCIATION OF CANADA, SUNCOR ENERGY INC., IMPERIAL OIL LIMITED, HUSKY OIL OPERATIONS LIMITED, CENOVUS ENERGY INC. AND CANADIAN NATURAL RESOURCES LIMITED

Interveners (By Leave)

THE ATTORNEY GENERAL OF CANADA REPLY SUBMISSIONS (Pursuant to Rule 37 of the Rules of the )

Attorney General of Canada Attorney General of Canada Department of Justice Department of Justice British Columbia Regional Office National Litigation Sector 840 Howe Street, Suite 900 50 O’Connor Street, 5th Floor Vancouver, BC V6Z 2S9 Ottawa, ON K1A 0H8

Per: Jan Brongers Per: Christopher Rupar BJ Wray Tel: (613) 670-6290 Tel: (604) 666-0110 / (604) 666-4304 Fax: (613) 954-1920 Fax: (604) 666-1585 E-mail: [email protected] E-mail: [email protected] / [email protected]

Counsel for the Respondent, Agent for the Respondent, Attorney General of Canada Attorney General of Canada

ORIGINAL: Registrar 301 Wellington Street Ottawa, ON K1A 0K1

Counsel for the Appellant, Attorney General Agent for the Appellant, Attorney General of of British Columbia British Columbia Arvay Finlay LLP Michael J. Sobkin 1512 – 808 Nelson Street 331 Somerset Street West Vancouver, BC V6Z 2H2 Ottawa, ON K2P 0J8

Per: Joseph J. Arvay, Q.C. Tel: (613) 282-1712 Catherine Boies Parker Fax: (613) 288-2896 Tel: (604) 696-9828 E-mail: [email protected] Fax: 1-888-575-3281 E-mail: [email protected] [email protected]

Ministry of the Attorney General (British Columbia) 6th Floor, 1001 Douglas Street Victoria, British Columbia V8W 9J7

Per: J. Gareth Morley Tel: (250) 952-7644 Fax: (250) 356-0064 E-mail: [email protected]

Counsel for the Intervener, Attorney Agent for the Intervener, Attorney General General of Alberta of Alberta Gall Legge Grant Zwack LLP Gowling WLG (Canada) LLP 1000 – 1199 West Hastings Street 160 Elgin Street, Suite 2600 Vancouver, BC V6Z 2H2 Ottawa, ON K1P 1C3

Per: Peter A. Gall, Q.C. Per: D. Lynne Watt Andrea L. Zwack Tel: (613) 786-8695 Tel: (604) 891-1152 Fax: (613) 788-3509 Fax: (604) 669-5101 E-mail: [email protected] E-mail: [email protected] / [email protected]

Counsel for the Intervener, Attorney Agent for the Intervener, Attorney General General of Saskatchewan of Saskatchewan Ministry of Justice (Saskatchewan) Gowling WLG (Canada) LLP Constitutional Law 160 Elgin Street, Suite 2600 820 – 1874 Scarth Street Ottawa, ON K1P 1C3 Regina, SK S4P 4B3

Per: Thomson Irvine, Q.C. Per: D. Lynne Watt Katherine Roy Tel: (613) 786-8695 Tel: (306) 787-0206 Fax: (613) 788-3509 Fax: (306) 787-9111 E-mail: [email protected] E-mail: [email protected] [email protected]

Counsel for the Intervener, Attorney Agent for the Intervener, Attorney General General of Ontario of Ontario

Ministry of the Attorney General (Ontario) Juristes Power Law 720 Bay Street, 4th Floor 130 Albert Street, Suite 1103 Toronto, ON M7A 2S9 Ottawa, ON K1P 5G4

Per: Josh Hunter, Padraic Ryan Per: Maxine Vincelette Tel: (416) 326-0131 Tel: (613) 702-5573 Fax: (416) 326-4015 Fax: (613) 702-5573 E-mail: [email protected] E-mail: [email protected] [email protected]

Counsel for the Intervener, Procureure Agent for the Intervener, Procureure Générale du Québec Générale du Québec

Ministère de la justice du Québec Noël & Associés 1200, route de l’Église, 4e étage 111, rue Champlain Quebec City, QC G1V 4M1 Gatineau, QC J8X 3R1

Per : Frédéric Perreault Per : Pierre Landry Tel : (418) 643-1477, ext. 20785 Tel : (819) 503-2178 Fax : (418) 644-7030 Fax : (819) 771-5397 E-mail : [email protected] E-mail : [email protected]

Counsel for the City of Vancouver Agent for the City of Vancouver

City of Vancouver Gowling WLG (Canada) LLP 453 West 12th Avenue 160 Elgin Street, Suite 2600 Vancouver BC V5Y 1V4 Ottawa ON K1P 1C3

Susan B. Horne, Kevin T. Nakanishi Jeffrey W. Beedell Tel: (604) 873-7512 Tel: (613) 786-0171 Fax: (604) 873-7445 Fax: (613) 788-3587 E-mail:[email protected] E-mail:[email protected]

Counsel for the City of Burnaby Agent for the City of Burnaby

Ratcliff & Company Supreme Advocacy LLP 221 West Esplanade, Suite 500 100 – 340 Gilmour Street North Vancouver, BC V7M 3J3 Ottawa, ON K2P 0R3

Gregory J. McDade, Q.C. Marie-France Major Michelle L. Bradley Tel: (613) 695-8855, Ext: 102 Tel: (604) 988-5201 Fax: (613) 695-8580 Fax: (604) 988-1452 E-mail:[email protected] E-mail :[email protected]

Counsel for Council of The Haida Nation Agent for Council of The Haida Nation

White Raven Law Corporation Gowling WLG (Canada) LLP 16541 Upper Beach Road 2600 – 160 Elgin Street Surrey, BC V3S 9R6 Ottawa, ON K1P 1C3

Terri-Lynn Williams-Davidson Brian A. Crane, Q.C., Elizabeth Bulbrook Tel: (604) 536-5541 Tel: (613) 233-1781 Fax: (604) 536-5542 Fax: (613) 563-9869 E-mail:[email protected] E-mail:[email protected]

Counsel for Assembly of First Nations Agent for Assembly of First Nations

Assembly of First Nations Counsel Supreme Law Group 55 Metcalfe Street, Suite 1600 900 – 275 Slate Street Ottawa, ON K1P 6L5 Ottawa, ON K1P 5H9

Stuart Wuttke, Julie McGregor Moira Dillon Tel: (613) 241-6789 Ext : 228 Tel: (613) 691-1224 Fax: (613) 241-5808 Fax: (613) 691-1338 E-mail: [email protected] E-mail: [email protected]

Counsel for Little Shuswap Lake Indian Agent for Little Shuswap Lake Indian Band Band Gowling WLG (Canada) LLP Grant Novacs Norell 2600 – 160 Elgin Street 400 – 900 Howe Street Box 466 Station D Vancouver, BC V6Z 2M4 Ottawa, ON K1P 1C3

Arthur M. Grant Brian A. Crane, Q.C. Tel: (604) 642-6361 Tel: (613) 233-1781 Fax: (604) 609-6688 Fax: (613) 563-9869 E-mail: [email protected] E-mail: [email protected]

Counsel for Trans Mountain Pipeline ULC Agent for Trans Mountain Pipeline ULC

Osler, Hoskin & Harcourt LLP Osler, Hoskin & Harcourt LLP Suite 2500, Trans Canada Tower 340 Albert Street, Suite 1900 450 1st Street S.W. Ottawa, ON K1R 7Y6 Calgary, AB T2P 5H1

Per: Maureen E. Killoran, Q.C. Per: Geoffrey Langen Olivia Dixon Tel: (613) 787-1009 Tel: (403) 260-7003 Fax: (613) 235-2867 Fax: (403) 260-7024 E-mail: [email protected] E-mail: [email protected]

Counsel for Beecher Bay First Nation, Agent for Beecher Bay First Nation, Songhees Nation and T’Sou-Ke Nation Songhees Nation and T’Sou-Ke Nation

JFK Law Corporation Gowling WLG (Canada) LLP 816-1175 Douglas Street 2600-160 Elgin Street Victoria, BC V8W 2E1 Ottawa, ON K1P 1C3

Per: Robert Janes, Q.C. Per: Guy Régimbald Ara Laskin Tel: (613) 786-0197 Tel: (250) 405-3460 Fax: (613) 563-9869 Fax: (250) 381-8567 Email: [email protected] E-mail: [email protected]

Counsel for Canadian Association of Agent for Canadian Association of Petroleum Producers Petroleum Producers

Lawson Lundell LLP Gowling WLG (Canada) LLP 205 – 5th Avenue, S.W., Suite 3700 2600 – 160 Elgin Street Calgary, AB T2P 2V7 P.O. Box 466, Stn A Ottawa, ON K1P 1C3

Brad Armstrong, Q.C. Matthew Estabrooks Lewis L. Manning Tel: (613) 786-0211 Tel: (403) 269-6900 Fax: (613) 788-3573 Fax: (403) 269-9494 E-mail: E-mail: [email protected] [email protected]

Counsel for Canadian Fuels Association Agent for Canadian Fuels Association

Fasken Martineau DuMoulin LLP Fasken Martineau DuMoulin LLP 2900 – 550 Burrard Street 55 rue Metcalfe Vancouver, BC V6C 0A3 Bureau 1300 Ottawa, ON K1P 6L5 D. Geoffrey G. Cowper, Q.C., Stanley Martin Daniel Byma, Tom Posyniak Sophie Arseneault Tel: (604) 631-3131 Tel: (613) 236-3882 Fax: (604) 632-3232 Fax: (613) 230-6423 E-mail: [email protected] E-mail: [email protected]

Counsel for Canadian Energy Pipeline Agent for Canadian Energy Pipeline Association Association

Borden Ladner Gervais LLP Borden Ladner Gervais LLP Centennial Place 1300 – 100 Queen Street 1900 – 520 3rd Ave SW Ottawa, ON K1P 1J9 Calgary, AB T2P 0R3 Karen Perron Michael A. Marion, Alan Ross, Tel: (613) 369-4795 Brett R. Carlson Fax: (613) 230-8842 Tel: (403) 232-9500 E-mail:[email protected] Fax: (403) 266-1395 E-mail:[email protected]

Counsel for Enbridge Inc. Agent for Enbridge Inc.

Osler, Hoskin & Harcourt LLP Osler, Hoskin & Harcourt LLP Suite 2500, Trans Canada Tower Suite 1900 450 1st Street S.W. 340 Albert Street Calgary, AB T2P 5H1 Ottawa, ON K1R 7Y6

Maureen E. Killoran, Q.C. Geoffrey Langen Sean Sutherland Tel: (613) 787-1009 Tel: (403) 260-7003 Fax: (613) 235-2867 Fax: (403) 260-7024 E-mail:[email protected] E-mail:[email protected]

Counsel for Railway Association of Canada Agent for Railway Association of Canada

McCarthy Tétrault LLP Suite 2400 0 745 Thurlow Street Gowling WLG (Canada) LLP Vancouver, BC V6E 0C5 2600 – 160 Elgin Street Box 466 Station A Nicholas Hughes Ottawa, ON K1P 1C3 Emily MacKinnon Tel: (604) 643-5983 Matthew Estabrooks Fax: (604) 622-5606 Tel: (613) 786-0211 Fax: (613): 788-3573 E-mail:[email protected] E-mail: [email protected]

Counsel for Ecojustice Canada Society Agent for Ecojustice Canada Society

Ecojustice Canada Society Champ and Associates 390 – 425 Carrall Street 43 Florence Street Vancouver, BC V6B 6E3 Ottawa, ON K2P 0W6

Harry Wruck, Q.C. Bijon Roy Tel: (604) 685-5618 Tel: (613) 237-4740 Fax: (604) 685-7813 Fax: (613) 232-2680 E-mail:[email protected] E-mail:[email protected]

Counsel for Heiltsuk Tribal Council Agent for Heiltsuk Tribal Council

NG Ariss Fong Supreme Advocacy LLP Suite 800 – 555 West Georgia Street 100 – 340 Gilmour Street Vancouver, BC V6B 1Z5 Ottawa, ON K2P 0R3

Lisa C. Fong Marie-France Major Tel: (604) 331-1155 Tel: (613) 695-8855 Ext : 102 Fax: (604) 677-5410 Fax: (613) 695-8580 E-mail:[email protected] E-mail:[email protected]

Counsel for Suncor Energy Inc., et al. Agent for Suncor Energy Inc. et al.

Blake, Cassels & Graydon LLP Gowling WLG (Canada) LLP 199 Bay Street 2600 – 160 Elgin Street Suite 4000, Commerce Court West Box 466 Station A Toronto, ON M5L 1A9 Ottawa, ON K1P 1C3

Catherine Beagan Flood D. Lynne Watt Peter W. Hogg Tel: (613) 786-8695 Laura Cundari Fax: (613) 788-3509 Christopher DiMatteo E-mail:[email protected] Tel: (416) 863-2269 Fax: (416) 863-2653 E-mail: [email protected]

TABLE OF CONTENTS

OVERVIEW ...... 1 A. The Proposed Legislation is not saved by Unwritten Constitutional Principles or Other Interpretive Principles ...... 2 i. Unwritten Constitutional Principles ...... 2 ii. “Quasi-Constitutional Status” ...... 2 iii. Subsidiarity and the Precautionary Principle ...... 3 B. The Doctrine of Interjurisdictional Immunity should not be abandoned ...... 6 C. Aboriginal Rights ...... 9 TABLE OF AUTHORITIES ...... 11

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OVERVIEW

1. The Attorney General of Canada (“AGC”) submits this reply factum in response to new issues raised in the factums of the interveners that support the position of the Attorney General of British Columbia (“AGBC”), and in response to the factum of the Attorney General of Ontario (“AGON”). These specific issues have not already been addressed in the AGC’s factum-in-chief.

2. Ecojustice submits that protection of the environment is an unwritten constitutional principle and ought to infuse the Court’s consideration of the division of powers analysis. While all parties agree that protection of the environment is of significant importance, it is not an unwritten constitutional principle, nor do environmental protection laws have “quasi-constitutional status”. It is neither necessary nor appropriate to rely on a previously unwritten constitutional principle in assessing the validity of the Proposed Legislation.

3. The City of Burnaby (“Burnaby”) similarly argues that the Proposed Legislation can be constitutionally validated pursuant to the concept of subsidiarity or the precautionary principle. These are interpretive principles, not constitutional doctrines. They cannot be employed to render valid a law that is outside the authority of the enacting legislature.

4. The AGON asks the Court to do away with the constitutional doctrine of interjurisdictional immunity. The AGON’s criticisms of the doctrine have already been canvassed by the Court and the doctrine has been narrowed accordingly. Interjurisdictional immunity remains an important constitutional doctrine, fully justified by the text of the constitution.

5. In addition to responding to these issues, the AGC also presents submissions in respect of the Aboriginal rights issues raised by the following interveners: Assembly of First Nations (“AFN”); Beecher Bay First Nation, Songhees Nation and T’Sou-ke Nation (collectively, “Beecher Bay et al.”); Council of the Haida Nation (“Haida”); Heiltsuk Tribal Council (“Heiltsuk”); and, Little Shuswap Lake Indian Band (“LSLIB”).

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A. THE PROPOSED LEGISLATION IS NOT SAVED BY UNWRITTEN CONSTITUTIONAL PRINCIPLES OR OTHER INTERPRETIVE PRINCIPLES

i. Unwritten Constitutional Principles

6. Ecojustice’s novel submission that “environmental protection” ought to be recognized as an unwritten constitutional principle that would provide the Government of British Columbia with authority that it does not otherwise have to enact the Proposed Legislation should be rejected. Even if environmental protection were so recognized, it would not presumptively override the jurisdiction provided for in the Constitution itself.

7. While environmental protection is of great importance to all Canadians, it is not an unwritten constitutional principle. It is not one of the unwritten postulates which form the very foundation of the , nor does it resemble one of the fundamental and organizing principles such as federalism, democracy, constitutionalism and the rule of law, respect for minorities, and judicial independence. In contrast to these recognized principles, environmental protection does not “emerge from the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning.”1

ii. “Quasi-Constitutional Status”

8. Furthermore, environmental protection laws do not have “quasi-constitutional status”, a concept that generally refers to the notion that because of their role in protecting certain fundamental personal rights, some statutes have special status that has to be borne in mind in resolving interpretive issues. Examples include the Canadian Bill of Rights,2 the Official Languages Act,3 and the Privacy Act.4 The concept has no application to a division of powers analysis, and it cannot reasonably be suggested that the Proposed Legislation, if enacted, would be

1 Reference re Secession of Quebec, [1998] 2 SCR 217 [“Re: Quebec”] at para 32; Reference re Manitoba Language Rights, [1985] 1 SCR 721 at 752; Reference re Remuneration of Judges of the Prov Court of PEI, [1997] 3 SCR 3 at paras 82-83. 2 Hogan v The Queen, [1975] 2 SCR 574 at 597. 3 Douez v Facebook Inc., 2017 SCC 33 at para 59. 4 Lavigne v Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 at para 25.

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a quasi-constitutional statute. Even if it were, it could not override the division of powers set out in the Constitution itself.

9. The question posed on this appeal is whether the Proposed Legislation is intra vires the province of British Columbia. The primacy of our written Constitution remains one of the fundamental tenets of our constitutional framework, especially with regard to the division of powers.5 It is neither necessary nor justifiable to find that environmental protection laws have “quasi-constitutional status” or to draw upon a previously unrecognized unwritten constitutional principle to decide whether the Proposed Legislation is valid or not.

iii. Subsidiarity and the Precautionary Principle

10. The suggestion made by Burnaby that the Proposed Legislation can be constitutionally validated pursuant to the concept of subsidiarity or the precautionary principle is also unfounded.6

11. With respect to subsidiarity, the Court has stated that the notion that law-making is often best achieved at a level of government that is closest to the citizens affected is an interpretive principle, not a constitutional doctrine.7 Burnaby acknowledges that subsidiarity is only an interpretative principle.8 Similar to the limits on the principle of co-operative federalism,9 the concept of subsidiarity cannot expand constitutional boundaries or make ultra vires legislation intra vires.10

5 Quebec (Attorney General) v Canada (Attorney General), 2015 SCC 14 [“Quebec v Canada”] at para 18. 6 City of Burnaby [“Burnaby”] factum at paras 3, 10. 7 Burnaby factum para 16; 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40 [“Spraytech”] at paras 3-4; Reference re Assisted Human Reproduction Act, 2010 SCC 61 [“Re: AHRA”] at paras 69-73. 8 Burnaby factum at para 16. 9 Rogers Communications Inc. v Châteauguay (City), 2016 SCC 23 at para 39; Quebec v Canada at paras 18-21; Reference re Pan-Canadian Securities Regulation, 2018 SCC 48 [“Re: Pan Canadian Securities”] at para 18. 10 Re: AHRA at para 72.

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12. The British Columbia Court of Appeal’s statement in its reasons for decision that “subsidiarity cannot be used to alter the division of powers”11 is consistent with this Court’s holding in Spraytech that notwithstanding the concept of subsidiarity, “each level of government must be respectful of the division of powers that is the hallmark of our federal system; there is a fine line between laws that legitimately complement each other and those that invade another government’s protected legislative sphere.”12

13. The concept of subsidiarity also does not apply to matters of a national dimension. As Professor Hogg notes, the corollary to subsidiarity is “that those matters that cannot be effectively regulated at the provincial level should be the responsibility of the more distant federal level of government.”13 Sections 91(29) and 92(10)(a) of the Constitution Act, 1867 reflect this reality.

14. The Ontario Court of Appeal in Canada Post Corporation v. Hamilton noted that a significant element of subsidiarity is the notion that higher levels of government should not displace pre-existing initiatives of lower levels of governments as it is beneficial for local institutions and communities to be able to maintain their own projects and commitments. However, the principle has no application to situations where Canada has continually exercised its constitutional power over a matter and has not displaced any pre-existing local initiatives.14 As Parliament has been continuously exercising its authority in relation to interprovincial undertakings since Confederation, the concept of subsidiarity has no role to play in assessing the validity of the Proposed Legislation.

15. Burnaby also acknowledges that, like the concept of subsidiarity, the precautionary principle is only an interpretive aid.15 Burnaby submits, however, that the precautionary principle should be used in order to re-characterize the purpose of the legislation as protecting the

11 Reference re Environmental Management Act (BC), 2019 BCCA 181 (“BCCA Reasons”) at para 52 [Appellant Record (“AR”) Part 1, pp 32-34]; Re: AHRA at para. 72; Canada Post Corporation v Hamilton (City), 2016 ONCA 767 [“Canada Post”] at para 84. 12 Spraytech at para 3. 13 Peter W. Hogg, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters Canada Limited, 2014) at 5.13 [AGC Supplemental Book of Authorities (“SBOA”), Tab 2]. 14 Canada Post at paras 82-86. 15 Burnaby factum at para 23.

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environment from hazardous substances.16 While the precautionary principle contemplates that a lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation,17 this principle cannot transform constitutionally invalid legislation into valid legislation.

16. An interpretive aid, such as the precautionary principle, may not be used to override the intrinsic and extrinsic evidence before the Court regarding the purpose and effect of the Proposed Legislation. It is this evidence that must guide the pith and substance analysis.18 If an examination of the legislation’s purpose and effect demonstrates that its pith and substance relates to a matter outside the legislative competence of the enacting level of government, the legislation will be found to be ultra vires.19 This will be the case even if the legislation appears in form to relate to a matter within the enacting legislature’s competence.20

17. After thoroughly examining the intrinsic and extrinsic evidence, the Court of Appeal correctly found that, in pith and substance, the Proposed Legislation is an attempt to regulate interprovincial oil transportation and frustrate the construction and operation of the TMX Project. The Court stated that “[c]ombined with the fact that Part 2.1 would only apply to additional volumes of heavy oil in the expanded Trans Mountain pipeline above historic amounts, the (admissible) evidence supports Canada’s characterization of the proposed legislation as aimed at the TMX project.”21 The application of the precautionary principle as an interpretive aid cannot supplant the actual evidence with respect to the pith and substance of the Proposed Legislation.

16 Burnaby factum at para 3. 17 Spraytech at para 31. 18 Re: Pan Canadian Securities at para 86; Kitkatla Band v British Columbia, 2002 SCC 31 at para 53; Canadian Western Bank v Alberta, 2007 SCC 22 [“Canadian Western Bank”] at para 27. 19 Canadian Western Bank at para 26. 20 Quebec v Canada at para 31. 21 BCCA Reasons, at para 57, 94 [AR Part 1, pp 36, 54].

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B. THE DOCTRINE OF INTERJURISDICTIONAL IMMUNITY SHOULD NOT BE ABANDONED

18. In his factum, the AGON raises numerous critiques of the doctrine of interjurisdictional immunity and submits that the Court should do away with the doctrine.22 The criticisms made by the AGON are not novel and have already been addressed by the Court. In any event, the AGON’s criticisms of interjurisdictional immunity do not justify abandoning the doctrine. Interjurisdictional immunity is necessary to protect the core of Parliament’s exclusive legislative authority from provincial incursion.

19. In Canadian Western Bank, the Court responded to many of the critiques of interjurisdictional immunity that are now raised by the AGON.23 Writing for the majority, Justices Binnie and LeBel expressly cited numerous commentators who have criticized the doctrine and acknowledged that a “broad use of the doctrine of interjurisdictional immunity runs the risk of creating an unintentional centralizing tendency in constitutional interpretation.”24 In responding to these critiques, the majority clarified that the doctrine “has a proper part to play in appropriate circumstances” but that “the Court does not favour an intensive reliance on the doctrine”.25 Accordingly, rather than eliminate the doctrine, the majority narrowed its scope by restating the threshold for triggering its application:

It is when the adverse impact of a law adopted by one level of government increases in severity from “affecting” to “impairing” (without necessarily “sterilizing” or “paralyzing”) that the “core” competence of the other level of government (or the vital or essential part of an undertaking it duly constitutes) is placed in jeopardy, and not before.26

20. The AGON argues that the doctrine of interjurisdictional immunity ought to be abandoned because it is inconsistent with federalism and with the sovereignty of provincial legislatures in the exercise of their powers granted by s. 92 of the Constitution Act, 1867. However, the Court has held that while the federalism principle may justify limiting the scope of interjurisdictional immunity, it does not call into question the very existence of the doctrine. In Canadian Western

22 Attorney General of Ontario (“AGON”) factum at paras 4, 23-45. 23 Canadian Western Bank at paras 35-53. 24 Canadian Western Bank at para 45. 25 Canadian Western Bank at para 47. 26 Canadian Western Bank at para 48.

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Bank and other decisions rendered since, the Court has repeatedly affirmed that the doctrine of interjurisdictional immunity is supported both by the text of ss. 91 and 92 of the Constitution Act, 1867, and by the principles of federalism.27

21. Granting the AGON’s request to abolish the doctrine entirely would significantly undermine Parliament’s legislative authority. Pursuant to s. 91(20), Parliament’s exclusive jurisdiction includes the subjects that are expressly excepted in the enumeration of subjects assigned exclusively to the provincial legislatures. Interprovincial transportation undertakings, such as the Trans Mountain Expansion Project, are excepted from provincial jurisdiction under para. 92(10)(a). Abandoning interjurisdictional immunity would effectively grant the provinces concurrent jurisdiction over all aspects of such undertakings, thereby nullifying the exclusivity of the jurisdiction granted to Parliament by s. 91(29) and para. 92(10)(a). Indeed, the majority in Canadian Western Bank acknowledged the validity of concerns about the risk of erosion of federal competences and effective concurrency of powers, which the doctrine seeks to address.28

22. The approach advocated by the AGON would not only nullify the exclusivity of Parliament’s legislative authority in relation to interprovincial undertakings, it would also render Parliament’s role in federalism nugatory except as a source of conflicting legislation to trigger . This bleak view of federalism was first rejected in Bell Canada 1988 and more recently in COPA.29 In his reasons for the Court’s judgement in Bell Canada 1988, Beetz J. stated that he saw “very little merit” in the argument that Parliament could sufficiently protect federal undertakings against provincial statutes through the paramountcy of federal legislation.30 He rejected the “spirit of contradiction” on which the argument is founded, noting that it would lead to uncertainty and endless disputes.31 In COPA, the majority considered that requiring Parliament

27 Canadian Western Bank at paras 33-34; See also Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39 at para 58 [“COPA”]; Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 at para 65; Desgagnés Transport Inc. v Wärtsilä Canada Inc., 2019 SCC 58 at para 91. 28 Canadian Western Bank at para 34. 29 Bell Canada v Quebec, [1988] 1 SCR 749 [“Bell Canada 1988”] at 843-844; COPA at para 48. 30 Bell Canada 1988 at 843. 31 Bell Canada 1988 at 843.

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always to rely on paramountcy and to legislate conflict for that purpose would narrow Parliament’s legislative options and impede the exercise of its core jurisdiction.32

23. The AGON further argues that the doctrine of interjurisdictional immunity should be abandoned because it may result in legislative vacuums where Parliament has chosen not to legislate. No such vacuum exists in this case, as Parliament has enacted comprehensive regulatory schemes governing the transportation of oil by interprovincial pipeline and rail. However, in other exceptional cases, the Canadian constitutional framework may require acceptance of such vacuums as an expression of Parliament’s sovereign jurisdiction and political choice to legislate or not legislate in respect of matters within the core of its exclusive legislative authority. Interjurisdictional immunity thus preserves Parliament’s freedom to elect, in the public interest, to leave some core federal matter altogether unregulated.33

24. The fact that the doctrine may be, as the AGON asserts, somewhat “complex and confusing”,34 cannot justify its abandonment. The complexity that the AGON would have the Court reject is inherent in Canada’s federal constitutional structure. Canada’s constitutional texts capture a “careful and complex balance of interests […]. An interpretation [of the Constitution] that disregards regional autonomy is as problematic as an interpretation that underestimates the scope of the federal government’s jurisdiction.”35 The Court has developed various constitutional doctrines to assist it in navigating complex division of powers cases. In applying these doctrines, “[t]he interplay between legislative powers often becomes complex”, but the Court has never resiled from this challenge.36

25. Finally, the AGON’s argument that interjurisdictional immunity is inconsistent with the principle of democracy is also unfounded. The AGON submits that this doctrine renders laws passed by a democratically elected provincial legislature inapplicable because they impair a

32 COPA at para 53. 33 Kerry Wilkins, “Exclusively Yours: Reconsidering Interjurisdictional Immunity”, (2019) 52:2 UBC L Rev 697 at 724-725 citing COPA at para 53 [AGC SBOA, Tab 1]. See also Re: Pan Canadian Securities at para 131 and , 2018 SCC 15 [“Comeau”] at para 87. 34 AGON factum at para 45. 35 Comeau at para 82. 36 Confédération des syndicats nationaux v Canada (Attorney General), 2008 SCC 68 at para 32.

9 judicially determined core of a federal head of power or a vital and essential part of a federally regulated undertaking.37 In other words, the AGON is alleging that the doctrine of interjurisdictional immunity lacks legitimacy because it is applied by judges who, unlike members of Parliament and of provincial legislatures, are not democratically elected. It is well established, however, that “[t]he need for a final, independent judicial arbiter of disputes over federal- provincial jurisdiction is implicit in a federal system”.38 It is entirely proper for judges to develop and apply constitutional doctrines such as interjurisdictional immunity to ensure that the division of powers set out in the Constitution is respected.

C. ABORIGINAL RIGHTS

26. The five interveners representing the interests and concerns of certain Indigenous peoples have varied perspectives on how the specific constitutional questions posed on this appeal should be answered.39 While all have raised, in different ways, the importance of the Court being cognizant of the impact its answers might have on Aboriginal rights and title, particularly in relation to self-government, the positions of the Indigenous interested parties differ with respect to the extent to which that impact should be formally addressed in the Court’s decision.

27. The AGC agrees with the Indigenous interested parties that the answers to the questions posed on this appeal must be respectful of the entire constitutional framework, which includes s. 35 of the Constitution Act, 1982.

28. The AGC is of the view that this is not the appropriate case for this Court to make determinations regarding the specific nature and scope of self-governance rights of Indigenous peoples. Instead, the question of how the creation and administration of Indigenous laws are to be placed within our constitutional framework is a matter that requires a full and proper record in

37 AGON factum at paras 31, 33. 38 Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21 at para 83. See also Reference re Securities Act, 2011 SCC 66 at para 55; Re: Quebec at para 56; Northern Telecom v Communication Workers, [1983] 1 SCR 733 at 741. 39 (1) AFN; (2) Beecher Bay et al.; (3) Haida; (4) Heiltsuk; and (5) LSLIB.

10 order to provide the proper context for adjudication. The reference record created before the Court below by the AGBC and the AGC is not sufficient for this purpose.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated this 10th day of December, 2019. ______Jan Brongers

______BJ Wray

Counsel for the Respondent, Attorney General of Canada

11

TABLE OF AUTHORITIES

Cases Cited at Paras. 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 11-12, 15

2001 SCC 40

Bell Canada v Quebec, [1988] 1 SCR 749 22 Canada (Attorney General) v PHS Community Services Society, 2011 SCC 20

44

Canada Post Corporation v Hamilton (City), 2016 ONCA 767 12, 14

Canadian Western Bank v Alberta, 2007 SCC 22 16, 19-21 Confédération des syndicats nationaux v Canada (Attorney General), 2008 24

SCC 68 Desgagnés Transport Inc v Wärtsilä Canada Inc, 2019 SCC 58 20

Douez v Facebook, Inc, 2017 SCC 33 8

Hogan v The Queen, [1975] 2 SCR 574 8 Kitkatla Band v British Columbia (Minister of Small Business, Tourism and 16

Culture), 2002 SCC 31 Lavigne v Canada (Office of the Commissioner of Official Languages), 8

2002 SCC 53

Northern Telecom v Communication Workers, [1983] 1 SCR 733 25

Quebec (Attorney General) v Canada (Attorney General), 2015 SCC 14 9, 11, 16 Quebec (Attorney General) v Canadian Owners and Pilots Association, 20, 22

2010 SCC 39

R v Comeau, 2018 SCC 15 23-24

Reference re Assisted Human Reproduction Act, 2010 SCC 61 11, 12 Reference re Environmental Management Act (BC), 2019 BCCA 181 12, 17

Reference re Manitoba Language Rights, [1985] 1 SCR 721 7

Reference re Pan Canadian Securities Regulation, 2018 SCC 48 11, 16, 23 Reference re Remuneration of Judges of the Prov Court of P.E.I., [1997] 3 7 SCR 3

Reference re Secession of Quebec, [1998] 2 SCR 217 7, 25

Reference re Securities Act, 2011 SCC 66 25

Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 25

Rogers Communications Inc v Châteauguay (City), 2016 SCC 23 11

12

Secondary Sources Kerry Wilkins, “Exclusively Yours: Reconsidering Interjurisdictional 23 Immunity”, (2019) 52:2 UBC L Rev 697 Peter W. Hogg, Constitutional Law of Canada, 5th ed. (Toronto: Thomson 13 Reuters Canada Limited, 2014) at 5.13