Ottawa’s Impact Assessment Act has been declared “largely unconstitutional“ five-and-a-half years after the legislation was first tabled in the House of Commons, prompting questions on whether Ottawa should have posed a reference question to the Supreme Court before the bill was ever introduced.
A reference question, or reference case, is a submission by the government to the Supreme Court of Canada (SCC) asking for an advisory opinion, particularly in relation to the constitutionality of a piece of legislation.
The Impact Assessment Act (IAA), also known as Bill C-69, was introduced in the House Feb. 8, 2018, and passed third reading that June. A Senate committee held cross-country hearings on the bill and sent it back to the House with 188 amendments, where 62 were accepted as written and another 37 after alterations. The final version received royal assent June 21, 2019.
The legislation, which gave Ottawa the power to evaluate major infrastructure projects for environmental impact, was dubbed by former Alberta premier Jason Kenny as the “no more pipelines act,” saying the regulatory burden imposed by the legislation would drive out investments in such projects, and that it infringes on provincial jurisdiction.
Legal action by Alberta brought the bill before the Supreme Court. In a 5–2 decision issued Oct. 13, Chief Justice Richard Wagner said the bill was within bounds on projects financed by federal authorities on federal lands or outside Canada. However, the IAA’s “designated projects” portion was not “within federal jurisdiction” and encroached on provincial authority over natural resource development.
Tom Flanagan, former chief of staff to Stephen Harper and political science professor emeritus at the University of Calgary, said Ottawa could have referred jurisdictional questions to the SCC before tabling the bill.
“It could have expedited the process with a reference case, but that would probably suggest that they had some doubts about the constitutionality of what they were doing. So [by not asking the court] they could just pretend that there were no issues,” Mr. Flanagan said in an interview.
“They probably thought they would win when it finally happened, so they would get a head start on it, and let provinces who were opposed drag it out [in the courts].”
Alberta referred the bill to the Alberta Court of Appeal for a ruling on its constitutionality. In a 4–1 decision, the court struck down the act as “a breathtaking pre-emption of provincial legislative authority” over resources. The ruling called the IAA an “existential threat ... pressing and consequential” and even a “clear and present danger ... to the division of powers guaranteed by our Constitution and thus, to Canada itself.”
Mr. Flanagan said that had Ottawa sought the court’s advice, instead of Alberta, matters could have been settled more quickly.
“When the province launches it, it becomes a two-stage process, which of course takes longer. So it gives [Ottawa] quite a cushion of time there. Now in this instance, maybe you can argue that it’s backfired on them, but that’s what they chose to do.”
Past Reference Questions
Reference questions have been posed prior to significant legislation by past governments a number of times. Prime Minister Pierre Trudeau asked the SCC in 1981 whether Parliament could enact a new constitution without the consent of the provinces. When the court ruled against him, Pierre Trudeau and the provinces negotiated the agreement that preceded the 1982 Constitution Act.In 2003, the Jean Chrétien Liberal government drafted a bill that would change the legal definition of marriage in Canada to include same-sex couples, and asked the SCC to rule on its constitutional validity. The court ruled in 2004 that the feds had the authority to amend that definition and that the new definition did not violate any constitutional rights under the charter. The Paul Martin Liberal government responded by introducing Bill C-38, the Civil Marriage Act, to allow same-sex marriage.
Prior to that, ahead of the Quebec independence referendum of 1998 Mr. Chrétien asked the SCC to decide whether Quebec could unilaterally declare secession. The court said that although unilateral session isn’t legal, should the referendum result be in the favour of secession, Canada couldn’t “deny the right” of Quebec to pursue independence, and the two sides would have to negotiate.
The Stephen Harper Conservative government in 2013 asked the SCC for clarity regarding Senate reform. The court decided in 2014 that Parliament on its own cannot change senators’ term limits or introduce elections for senator selection, but must have approval of seven provinces comprising half of Canada’s population. Moreover, abolishing the Senate would require unanimous consent by the feds and all provinces. This high threshold dissuaded the government from attempting the reforms.
Carleton University political science professor Scott Edward Bennett told The Epoch Times the Trudeau government would have been more “practical and prudent” to seek a judicial opinion first but had its own reasons to decline.
“The federal government, as it has been in recent years, often acts with certain interests in mind. They seldom want to know if something is well designed. It is more a matter of their advancing certain interests,” Mr. Bennett said.
“They probably thought that the act would go unchallenged or people would lose interest in it. Even if it were overturned, which it has been in part, the federal government would have reduced the momentum and prosperity of the regions and parts of the economy that they do not view favourably. Even slowing down the development of resource- and energy-related projects would seem like a short-term victory from that point of view.”
Law professor Allan C. Hutchinson at York University also says Ottawa could have chosen courts first, constitutional legislation later.
“The feds could have done a reference anytime they wanted. They frequently do, and the complexity of the law is not necessarily a consideration in deciding whether to do that,” he said in an interview.
Still, Mr. Hutchinson said the government may have acted in “good faith” based on legal counsel they received.
“I assume they would have got advice, which would have been reasonable advice, saying, ‘Look, you can challenge any legislation as being unconstitutional, and you’re never quite sure what the court will do, but in this case, the odds seem on your side,’” he said.
No Formula for Constitutionality
In the case of IAA, Mr. Hutchinson said the two dissenters in the SCC and the lone dissenter in the Alberta Court of Appeal demonstrate room for disagreement. He said the 2021 SCC decision backing federal carbon pricing made another federally favourable verdict seem somewhat likely.“The odds were in favour of the feds winning; they didn’t. It’s another confirmation that you can never guess what on earth the Supreme Court is going to do,” he said.
“People seem to have this idea that constitutionality is a kind of formula out there, and it just isn’t. This case shows it was a very close call. They haven’t said that the whole project is unconstitutional.”
Mr. Hutchinson says politics and law “run pretty close together” and more legislative and court processes are still to come. He says some ambiguity in the decision still leaves a “mess” to sort out.
“The feds can get involved on the environment and climate change, but ... not fully involved. And exactly what that means is going to require at least a few more decisions,” he said.
“The feds will tinker with [IAA following the SCC ruling], send it back to Parliament, and see what happens. The fact is, Danielle Smith’s [Alberta] government’s going to challenge it, whatever they do.”
Mr. Flanagan suggests the Trudeau government should find “common ground” with concerned provinces, especially Alberta and Quebec.
“If they decide to make the absolute minimum changes that they think will get the job done, they’re probably looking at another round of challenges,” he said.
“Saskatchewan probably goes along with Alberta. Quebec’s concerns are kind of different, but pretty important because it’s Quebec. So if they can get Alberta and Quebec onside, then they’re probably in good shape.
“Is that possible? I don’t know, but it seems to me it would be wise to make the effort.”
Mr. Bennett, however, doubts Ottawa will try to work with the provinces.
“With a federal government resistant to legal signals that were already available, I think we can expect the current federal government to try to get away with slowly crafting minor changes to the act and preserving as much of the bias of the act as possible as long as possible,” he said.
