In May, the Alberta Court of Appeal struck down the impact assessment law, calling the controversial law an “existential threat” to each province’s right to control its own resources. Previously known as Bill C-69, the IAA received royal assent in 2019. It allows federal regulators to consider the impacts of large construction projects — such as pipelines — on a range of environmental and social issues, including climate change. The Liberal government was quick to announce its plan to refer the Alberta court’s non-binding opinion to the Supreme Court, and in recent weeks, the Office of the Attorney General of Canada completed its notice of appeal and filing deadlines have now been set.
Reading “tea leaves”
The Supreme Court’s opinion will be the “ultimate authority” in this area of law, says David Wright, an environmental and natural resources lawyer who taught at the University of Calgary. “The benefit for everybody, once you deal with the short-term pain, is a level of legal clarity that we haven’t had before in this country with respect to federal jurisdiction over impact assessment,” Wright said. Last year, in a 6-3 decision, the Supreme Court upheld the Liberals’ carbon tax regime as constitutional, with the majority writing that the threat of climate change requires a coordinated national approach. “These are the best tea leaves we have, and they would suggest … that the majority find the federal impact assessment constitutional,” Wright said.
“Trojan Horse” argument.
When Alberta filed its constitutional challenge in 2019, Premier Jason Kenne said the legislation would kill what was left of Alberta’s oil and gas sector. The Alberta government has called the law a “Trojan Horse” and argued the federal legislation threatens to “disintegrate provincial authority,” in its written arguments supported by Ontario and Saskatchewan. The Alberta Court of Appeal heard 17 interveners before siding with the province. Ultimately, in their 204-page legal opinion, four of the five judges called the IAA a “breathtaking prerogative of provincial authority.”
The disagreement
While 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 Greckol wrote that the urgency of the climate crisis calls for 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 review. According to Wright, Grecol’s dissent “aligns more closely with existing constitutional law doctrine” and is likely to be reflected in the Supreme Court’s final majority.
Liberals have “absolute confidence” in legislation
A spokesman for Environment and Climate Change Minister Steven Guilbaut said his government had “absolute confidence” the High Court would uphold the legislation. “We feel very strongly that it is fully constitutional,” said Oliver Anderson. “That’s why we reacted so quickly to it at the time.” On behalf of Guilbeau and Justice Minister David Lametty, Anderson pointed to the joint statement the two issued after the first ruling in May. “This act sets better rules for major projects that restore trust, protect the environment, promote reconciliation, and ensure that good projects can move forward on time so we can grow our economy and create good jobs,” it said. in part of the statement. Alberta Energy Minister Sonya Savage did not respond to a request for comment. No date has yet been scheduled for the arguments, but submission deadlines are set for early 2023.
