In an October ruling, the Supreme Court of Canada backed Alberta’s position that federal regulators overreached in their efforts to gauge the effects of major construction projects through the Impact Assessment Act.
Alberta officials filed their constitutional challenge in 2019. They argued that the federal law assessing how major projects such as coal mines and oil sands plants impact the environment would “erode the rights” of provinces by adding delays, additional regulatory costs and uncertainty to projects with significant impacts on Alberta’s economy.
In May, Alberta’s appeal court struck down the Impact Assessment Act (IAA), leading to the Liberal Party challenging the court’s non-binding opinion at the Supreme Court level. It is a move that came on the heels of a successful challenge last year, when the Supreme Court ruled that the carbon tax regime was constitutional, and the majority approved of a national approach to threats from climate change.
“Environmental protection remains one of today’s most pressing challenges, and Parliament has the power to enact a scheme of environmental assessment to meet this challenge, but Parliament also has the duty to act within the enduring division of powers framework laid out in the Constitution,” stated part of the 5-2 majority ruling issued on October 13 from Canada’s highest court.
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When the IAA, or Bill C-69, was before Parliament in 2019, eight of 10 provinces opposed it.
Ontario’s Attorney General, Doug Downey is calling for more legal certainty over the Supreme Court decision, suggesting the federal government has not adequately responded. He is hoping to get shovels in the ground soon for projects like Highway 413, the First Nations-led process to build all-season roads connecting the Ring of Fire region, Ontario Place, housing-enabling infrastructure projects, and new and refurbished energy generation and transmission projects, including new nuclear reactors.
“Ontario is using the legal tools at our disposal to assert our constitutional authority to move forward on our many critical projects without federal interference,” Downey said in a statement on October 24.
Following the latest Supreme Court ruling, federal Environment Minister Steven Guilbeault told a news conference that the legislation will quickly go back through the Parliamentary process for improvement.
There are currently 23 projects in the federal impact assessment process under the IAA. In Alberta, they include Suncor Energy’s plan to expand its oil sands Base Mine, and privately held Coalspur Mine Ltd.’s Vista coal mine expansion. Under the current framework of the Act, the Minister or the federal Cabinet has the power to decide whether a designated project proceeds based on federal priorities and legislated factors.
“Finally, we call on the federal government to learn the lessons from this decision and abandon their ongoing unconstitutional efforts to seize regulatory control over the electricity and natural resource sectors of all provinces,” announced a joint statement from Alberta Premier Danielle Smith and Minister of Justice Mickey Amery. “Instead, we invite them once more to come to the table in good faith and work with Alberta to align our mutual efforts on emissions reductions and development of our electricity grid and world-class energy sector,” the statement continued.