In a 5–2 majority decision, Canada’s Supreme Court has ruled that the Liberal government’s environmental assessment scheme is “largely unconstitutional.”
The Province of Alberta had challenged the constitutionality of the federal government’s Impact Assessment Act of 2019, previously known as Bill C-69. Former Alberta premier Jason Kenney had dubbed the legislation the “No More Pipelines Act” because of the regulatory burden it had created, which he said stood in the way of building more pipelines.
The legislation allows the federal government to impose further environmental assessments of resource and infrastructure project. Alberta, supported by other provinces and some First Nations groups, claimed that the law infringes upon provincial jurisdiction.
Alberta filed its case in September 2019, and in May 2022 the province’s Court of Appeal, in a non-binding opinion on the matter, stated that the act is unconstitutional.
It said that climate change represents and “existential threat” to Canada, but that the country is also facing a threat from the Impact Assessment Act (IAA).
“The IAA involves another existential threat–one also pressing and consequential–and that is the clear and present danger this legislative scheme presents to the division of powers guaranteed by our Constitution and thus, to Canada itself,” the opinion said.
“History teaches that government by central command rarely works in a geographically large country with a diverse population and divergent regional priorities.”
Shortly after the Alberta Court of Appeal released its opinion, the federal government referred the matter to the Supreme Court of Canada to settle the debate on the constitutionality of the IAA.
The IAA states that its purpose is to “foster sustainability” and to “protect the components of the environment, and the health, social and economic conditions that are within the legislative authority of Parliament from adverse effects caused by a designated project.”
Designated projects are defined as physical activities carried out in Canada or on federal lands, and falling under regulations of the act.
The act puts barriers to the creation of designated projects that would have an assessed negative impact on the environment. Those projects could refer to mine development or interprovincial highways.
Chief Justice Wagner wrote that the designated projects portion of the act is beyond Parliament’s legislative authority under the Constitution.
Reaction
Alberta Premier Danielle Smith, who is at odds with Ottawa over its energy policies, reacted to the decision on social media by saying that “Alberta wins! Canada wins!”Saskatchewan Premier Scott Moe said the government should now reflect on what other areas it may have infringed upon in provincial jurisdictions, giving as examples Ottawa’s net-zero policies for provincial electrical grids and regulations impacting oil and gas production.
Environment Minister Steven Guilbeault and Natural Resources Minister Jonathan Wilkinson emphasized that the IAA has not been struck down by the court. They said the opinion would be used to make amendments and noted the court has upheld the federal government’s right to conduct impact assessments.
“We’re not talking about rewriting the act, we’re talking here about surgical intervention to further define certain elements of it,” Mr. Guilbeault said at a press conference on Oct. 13.
Conservative MP and critic for natural resources Shannon Stubbs called the Supreme Court’s opinion “devastating” for the Liberal government.
“It ruled that Bill C-69 is largely unconstitutional and highlights all the concerns about overreach, jurisdictional clarity, the project list, and a negative impact on many indigenous communities, that Conservatives pointed out repeatedly during debate on Bill C 69, and many times since,” she wrote on social media.
Mr. Kenney also celebrated the Supreme Court decision on the federal legislation, which he had worked extensively to overturn when he was the premier of Alberta.
