The federal government has asked the country’s top court to settle the law around its environmental impact legislation after the Alberta Court of Appeal ruled it unconstitutional.
In May, Alberta’s appeal court struck down the Impact Assessment Act, 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 effects of major construction projects — like pipelines — on a range of environmental and social issues, including climate change.
The Liberal government was quick to announce its plan to take 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 “final authority” on this area of law, says David Wright, an environment and natural resource lawyer who taught 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’ve not had before in this country with respect to federal jurisdiction over impact assessment,” said Wright.
Last year, in a split 6-3 decision, the Supreme Court upheld the Liberals’ carbon tax regime as constitutional with the majority writing that the climate change threat necessitates a co-ordinated national approach.
“Those are the best tea leaves we have and they would suggest … the majority opinion finding the federal impact assessment act as constitutional,” said Wright.
‘Trojan Horse’ argument
When Alberta filed its constitutional challenge 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 feds’ legislation threatened to “eviscerate provincial authority,” in its written arguments supported by Ontario and Saskatchewan.
The Alberta Court of Appeal heard from 17 interveners before siding with the province.
Ultimately, in its 204-page legal opinion, four of the five judges called the IAA a “breathtaking pre-emption of provincial authority.”
While all five judges agreed climate change is a threat that must be addressed, four opined that environmental concerns do not trump the division of power.
In a dissenting opinion, Justice Sheila Greckol wrote the urgency of the climate crisis calls for co-operative protection environmental regimes across jurisdictions.
Greckol said that while provinces have jurisdiction over their own natural resources, projects related to those resources aren’t immune to federal assessment.
According to Wright, Greckol’s dissent “aligns more closely with existing constitutional law doctrine” and is likely to be reflected in the Supreme Court’s ultimate majority opinion.
Liberals have ‘absolute confidence’ in legislation
A spokesperson for Minister of Environment and Climate Change Steven Guilbeault said his government has “absolute confidence” the Supreme Court will uphold the legislation.
“We feel very strongly that it is fully constitutional,” said Oliver Anderson. “That’s why we took such a quick reaction to it at the time.”
On behalf of Guilbeault and Justice Minister David Lametti, Anderson pointed to the joint statement issued by the two after the first ruling in May.
“This act puts in place better rules for major projects that restore trust, protect the environment, advance reconciliation and ensure good projects can move forward in a timely way so we can grow our economy and create good jobs,” reads part of the statement.
Alberta Energy Minister Sonya Savage did not respond to a request for comment.
A date for arguments has not yet been scheduled but filing deadlines have been set into early 2023.