Supreme Court to rule if federal environmental impact assessment law can stand

By Bob Weber, The Canadian Press on October 12, 2023.

Canada’s highest court is slated to rule Friday on federal environmental legislation in a decision expected to settle – for now – the role of different levels of government in balancing the economic benefits and environmental costs of resource development.

The Supreme Court has said it will deliver its ruling on the constitutionality of Bill C-69, known in Ottawa as the Impact Assessment Act and in Alberta government circles as the No More Pipelines Act. Depending on who you believe, the bill either ensures national standards on environment and climate change or pries open new doors for Ottawa to meddle in provincial business.

“The government of Canada worked extensively with legal experts and provincial and territorial governments to develop the Impact Assessment Act,” said a spokesperson for federal Environment Minister Stephen Guilbeault. “We are confident the Impact Assessment Act is constitutional.”

The bill, enacted in 2019, lists activities that trigger a federal impact review and allow Ottawa to consider the effects of resource projects on a range of environmental and social issues, including climate change.

Alberta opposed it, arguing the bill gives Ottawa power to stick its nose into provincial matters such as resource development. In 2022, it asked the Alberta Court of Appeal for a legal opinion.

The Appeal Court, in a strongly worded 4-1 decision, called the law an “existential threat” to the division of powers in the Constitution and a “wrecking ball” on the rights of Alberta and Saskatchewan.

Ottawa appealed. Those arguments were heard in March.

Federal lawyers told court the federal law contains safeguards to ensure that it only captures development proposals that would generate significant impacts. The government says the current act applies to fewer projects than the previous legislation.

Lawyers also maintained disallowing the law would create provincial enclaves immune from federal oversight, regardless of their impacts on neighbouring jurisdictions or legitimate federal objectives such as mitigating climate change. Ottawa’s responsibility for First Nations, on whose land much of the development would take place, also gives it a stake in reviewing projects, lawyers argued.

Nine out of 10 provinces oppose the Impact Assessment Act, while 11 interveners from environmental groups and First Nations spoke in favour of it.

The Supreme Court has ruled before that environmental issues are a matter of shared jurisdiction between Ottawa and the provinces. That was part of the reasoning behind its 2021 decision to overturn an Alberta Appeal Court ruling that found the federal carbon tax unconstitutional.

In that decision, the judges wrote that climate change is a pressing matter of national concern and that it’s permissible for Ottawa to take the lead on a threat that crosses provincial boundaries.

Friday’s decision is not the first time environmental assessment in Canada has depended on a court ruling.

A 1992 Supreme Court decision found federal involvement in environmental assessment accorded with the Constitution. In 2016, the Federal Court of Appeal struck down assessment legislation passed by the Conservative government of Stephen Harper.

The Impact Assessment Act, the fate of which is to be decided Friday, is the federal Liberals’ replacement for that legislation.