Western Canada: Alberta court concludes federal environmental law is unconstitutional in dispute headed for the Supreme Court

Good morning. It’s James Keller in Calgary.

Jason Kenney won Alberta’s 2019 election on a campaign that promised to go to war with the federal government, in large part by mounting court challenges against what he condemned as attacks on the province’s oil sector.

Target No. 1 was the federal carbon tax, which Mr. Kenney’s government (along with governments in Saskatchewan and Ontario) targetted with a constitutional reference case. Alberta’s Court of Appeal concluded the tax was illegal, while courts in Ontario and Saskatchewan sided with Ottawa. The Supreme Court of Canada eventually ruled that the tax is, in fact, constitutional and it remains in place today.

Another major target for Mr. Kenney was Bill C-69, the Impact Assessment Act, which has since become law. The legislation overhauled the environmental-approval process for major projects, including resource development, and expanded the scope of those approvals. Mr. Kenney condemned it as the “no more pipelines law” and promised a similar constitutional challenge, which he launched nearly three years ago.

The Alberta Court of Appeal has now released an opinion that says the law is unconstitutional and represents an illegal intrusion on provincial jurisdiction. The 4-1 ruling, released on Tuesday, argues that the law could effectively place provinces in an “economic chokehold” by regulating their natural resources and includes dire warnings about the effect on confederation. (You can read the full decision here).

The federal government immediately promised an appeal.

Mr. Kenney could barely contain his delight at the court’s opinion, describing it as a “huge win” for Alberta and talking about it in historic terms. Mr. Kenney and his Environment Minister, Jason Nixon, both incorrectly claimed that the court’s conclusion is binding and takes effect immediately, even though the outcomes of constitutional references are considered non-binding, advisory opinions.

The court’s opinion does, however, put the law on a collision course with the Supreme Court of Canada, whose decision, while also technically non-binding, would, in practice, represent the final word on the matter.

It’s not clear how long that appeal process will take, though it was about two years between the first carbon tax decisions at the appeal courts in Ontario and Saskatchewan and the Supreme Court of Canada’s eventual ruling.

Mr. Kenney predicted that other provinces would join Alberta’s side in that appeal.

Environmental law charity Ecojustice said it is disappointed in the majority opinion, calling it a “setback.” One of the organization’s lawyers, Joshua Ginsberg, said in a statement that the Alberta government should not stand in the way of progress as climate change advances. Other environmental groups echoed that sentiment.

Lisa Baiton, president of the Canadian Association of Petroleum Producers, said the industry’s largest lobby group agrees with the ruling and that provinces are best-positioned to review and regulate resource-development projects.

With a report from Alanna Smith

This is the weekly Western Canada newsletter written by B.C. Editor Wendy Cox and Alberta Bureau Chief James Keller. If you’re reading this on the web, or it was forwarded to you from someone else, you can sign up for it and all Globe newsletters here.