Alberta Court of Appeal rules the Impact Assessment Act unconstitutional

Four judges argued that this law, which governs the assessment of major energy projects, did not respect the division of powers established in the Constitution. Only Judge Sheila Greckol wrote a contrary opinion.

Ottawa will take the matter to the Supreme Court of Canada to clarify the case. The majority position of the Alberta Court of Appeal is a non-binding opinion, but the Alberta government considers it to be prevailing.

The Impact Assessment Act (New window)which received Royal Assent in 2019, allows the government to examine how a project affects Ottawa’s work on climate change, gender parity and certain social issues, as well as its cumulative effects when it is combined with other projects.

From its inception, provincial Conservative governments and organizations representing the oil and gas industry have opposed this legislation, which before it was passed was Bill C-69.

The United Conservative government of Alberta launched a legal challenge against this federal law last year with the support of the governments of Ontario and Saskatchewan.

The three provinces criticized Ottawa for using this law as a Trojan horse to interfere in an area of ​​provincial jurisdiction, namely the production and management of natural resources.

A threatens to the Constitution

In the majority opinion written in English, the four judges go so far as to qualify this law as a threat to the country.

Climate change is not the only existential threat facing the country. The [Loi sur l’évaluation d’impact] involves another existential threat – equally pressing and consequential – and that is the obvious danger that this law poses to the division of powers guaranteed by the Constitution.

The Impact Assessment Act is a classic example of legislative encroachment. »

A quote from Alberta Court of Appeal

Judges are particularly concerned that the law may apply to projects that are located exclusively within the territory of a province. It would be enough for the federal government to make designated projects.

Their concerns thus join those expressed by the premier of Alberta, Jason Kenney, who has taken to calling this law law to abolish pipelines. He pointed out several times that Ottawa was trying to hinder the production of Alberta’s natural resources and specifically oil from the tar sands.

Alberta Premier Jason Kenney says his province is being mistreated by the federal government. (archived May 2, 2019)

Photo: The Canadian Press/Sean Kilpatrick

While some believe that the primary target of the act is hydrocarbon projects, the provinces should not take for granted that provincial highways, rail networks, wind or solar farms and countless other […] would be excluded from the scope of the law. They wouldn’t be even emphasizes the majority opinion.

According to the four judges, this law defines the effects of a project so broadly that they can apply to the entire human sphere without necessarily having these effects fall within the scope of federal jurisdiction.

If the courts upheld the law, all provincial industries […] would be subject to federal regulation, which would give it veto powerwrites Chief Justice Catherine Fraser, supported by Justices Jack Watson, Bruce McDonald and Jo’Anne Strekaf.

The federal government on appeal

An hour after the publication of the judgment, the federal Minister of Natural Resources, Jonathan Wilkinson, indicated that the government will take the question to the Supreme Court and recalled that the Act on impact assessment remained in force.

If we were to find ourselves in a situation where this law was no longer in force, the environment would no longer be protected, he said. He ruled out changing the law and cited his belief that it dealt with federal jurisdiction.

Prime Minister Justin Trudeau agreed. He recalled that the Alberta Court of Appeal had previously ruled the federal carbon tax unconstitutional, but the Supreme Court ultimately ruled in favor of Ottawa.

The federal government has the responsibility to establish new laws for the country. We remain convinced of the need to protect the environment and provide certainty for investors he said in English.

Alberta celebrates

If this law is good for the industry, why was she standing with us to oppose it? quipped Alberta Premier Jason Kenney at a press conference.

The Canadian Producers and Explorers Association, the Canadian Energy Pipeline Association and the Canadian Association of Petroleum Producers (CAPP) were intervenors in the case.

The latter has also reacted positively to the judgment. Provinces are best placed to review and regulate resource development projects within their borders and guard against regulatory uncertainty and maintain competitiveness did she say.

This is a historic victory for Alberta. »

A quote from Jason Kenney, Premier of Alberta

Jason Kenney calls on other provinces to join Alberta to defend the Constitution in anticipation of the upcoming Supreme Court challenge.

Although the opinion is not binding, the provincial government considers that it applies immediately in Alberta and that the Act can no longer be used there.

Our planet is on fire, and we need water

Only Judge Sheila Greckol would have won the federal government’s case. In the minority opinion, she points out that the monitoring of environmental consequences cannot be the monopoly of one level of government, since the effects are omnipresent.

The fumes from a potash mine in Saskatchewan can harm the health of Quebecers or Indigenous peoples living downstream of a river that does not care about provincial bordersshe says as an example.

She adds that case law has given enough flexibility to the federal governance system. Now is not the time to abandon these tools and, worse, to give credence to the metaphorical Trojan horse of Alberta and Saskatchewanshe says.

Our planet is on fire, and we need water, not heat. The majority offer warmth. This is water. [La loi] at least gives the governments of this country the chance to collaborateshe concludes.

Part of the standoff between Alberta and Ottawa

Seventeen organizations participated in hearings that took place more than 15 months ago. In addition to the oil and gas industry, the Woodland Cree First Nation has placed itself in the Alberta camp.

Several environmental organizations and two Alberta First Nations, the Chipewyan of Athabasca and the Cree of Mikisew, defended the federal government’s arguments.

The Alberta government has made this challenge one of the pillars of its promise to obtain a fairer agreement and to renegotiate Alberta’s place in Confederation.

The province also challenged the federal carbon tax, but lost in the Supreme Court. In this case, the Alberta Court of Appeal had previously agreed with him.

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Alberta Court of Appeal rules the Impact Assessment Act unconstitutional

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