The federal government has asked the country’s highest court to settle the law on its environmental impact legislation after the Alberta Court of Appeal declared it unconstitutional.
In May, Alberta’s Court of Appeal struck down the Impact Assessment Act, calling the controversial law an “existential threat” to each province’s right to control its own resources.
Formerly known as Bill C-69, the IAA received royal assent in 2019. It allows federal regulators to look at the effects of large construction projects — such as pipelines — on a range of environmental and social issues, including climate change.
The Liberal government has been quick to announce its plan to take the Alberta court’s non-binding ruling to the Supreme Court, and in recent weeks the Attorney General of Canada’s office completed its notice of appeal and filing deadlines have already been set.
Reading “tea leaves”
The Supreme Court’s opinion will be the “last resort” in this area of law, says David Wright, an environmental and natural resources lawyer who teaches at the University of Calgary.
“The benefit for everybody, once you fast-forward through the short-term pain, is a level of legal clarity that we haven’t had before in this country regarding federal jurisdiction over impact assessment,” Wright said.
Last year, in a 6-3 split decision, the Supreme Court upheld the Liberals’ carbon tax regime as constitutional, with the majority writing that the threat of climate change required a coordinated national approach.
“These are the best tea leaves we have, and they would suggest … the majority opinion finding the federal impact assessment to operate as constitutional,” Wright said.
The Trojan Horse Argument.
When Alberta filed its constitutional complaint in 2019, Premier Jason Kenney said the legislation would kill what was left of Alberta’s oil and gas sector.
The Alberta government called the law a “Trojan horse” and argued the federal legislation threatens to “eviscerate provincial governments,” in written arguments supported by Ontario and Saskatchewan.
The Alberta Court of Appeal heard from 17 interveners before siding with the province.
Ultimately, in their 204-page legal opinion, four of the five judges called the IAA a “breathtaking preference of provincial governments.”
Disagreement
Although all five justices agreed that climate change is a threat that must be addressed, four opined that environmental concerns do not override the separation of powers.
In a dissenting opinion, Justice Sheila Grecol wrote that the urgency of the climate crisis requires cooperative environmental protection regimes across jurisdictions.
Grecol said while provinces have jurisdiction over their own natural resources, projects related to those resources are not immune from federal assessment.
According to Wright, Grecole’s dissent “aligns more closely with existing constitutional law doctrine” and is likely to be reflected in the Supreme Court’s ultimate majority.
The Liberals have “absolute confidence” in the legislation
A spokesman for Environment and Climate Change Minister Stephen Guilbeau said his government had “absolute confidence” the High Court would uphold the legislation.
“We feel very strongly that this is completely constitutional,” said Oliver Anderson. “That’s why we reacted so quickly to this weather.”
On behalf of Guilbeault and Justice Minister David Lametti, Anderson pointed to a joint statement the two issued after the first ruling in May.
“This act puts in place better rules for major projects that restore trust, protect the environment, promote reconciliation and ensure that good projects can move forward in a timely manner so that we can grow our economy and create good jobs.” , part of the statement reads.
Alberta Energy Minister Sonia Savage did not respond to a request for comment.
No date has yet been set for arguments, but filing deadlines are set for early 2023.
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