Alberta’s top court says Ottawa’s environmental assessment law is unconstitutional, arguing it undermines Canada’s division of powers and could effectively place provinces in an “economic chokehold” by regulating their natural resources.
The 4-1 opinion against the Impact Assessment Act, which Alberta Premier Jason Kenney has derided the “no more pipelines law,” is part of a constitutional reference case and has no immediate effect on the law. The federal government indicated it would appeal to the Supreme Court of Canada.
Formerly known as Bill C-69, the law is one of several federal policies that Mr. Kenney has criticized as an attack on Alberta and its oil sector, and he promised a legal challenge during the 2019 election campaign. He also used a constitutional reference to challenge the federal carbon tax, along with similar cases in Saskatchewan and Ontario, but the Supreme Court of Canada ultimately sided with Ottawa.
The 204-page opinion, released Tuesday, comes nearly three years after the Impact Assessment Act received royal assent. The law allows the federal government to consider the impacts of new resource projects on issues such as climate change, as well as a list of other criteria such as potential changes to health, social or economic conditions.
“The federal government’s invocation of concerns about the environment and climate change that all provincial governments and Canadians share is not a basis on which to tear apart the constitutional division of powers,” said the majority opinion.
“This legislative scheme allows the federal government to essentially render worthless the natural resources of individual provinces by stopping their development. If upheld, the IAA [Impact Assessment Act] would permanently alter the division of powers and forever place provincial governments in an economic chokehold controlled by the federal government.”
Premier Jason Kenney called the court opinion a “huge win” for the people of Alberta while incorrectly claiming the law is no longer in effect.
“Today’s victory is a huge vindication of Alberta’s strategy to fight for a fair deal,” said Mr. Kenney, predicting Alberta will have help from other governments during the appeal. “I believe the majority of Canada’s provinces will stand up for the federation, for the constitution, for jobs and the economy by supporting Alberta.”
The federal government quickly indicated that it plans to appeal while noting that the act remains in force.
Prime Minister Justin Trudeau said the law delivered on an important promise “to reform a broken system and restore public trust in how decisions about major projects are made.” Several federal ministers said they were confident the act is constitutional.
In its legal arguments, the Alberta government described the law as a “Trojan Horse” that attempts to override provincial powers through a back door, thus eroding control over oil and gas development. Ontario and Saskatchewan also joined the case in support of Alberta.
In a dissenting opinion, Alberta Justice Sheila Greckol wrote that the law helps to regulate projects that affect areas of federal jurisdiction, such as fish and migratory birds, federal lands, federally funded projects, and Indigenous people. She concluded the law is valid.
All five judges agreed climate change must be addressed but the majority argued the federal government should not have unilateral power over regulation of natural resource projects. One judge signed off on the majority opinion with the exception of one section.
During the carbon tax cases, the Alberta Court of Appeal was the only one out of three provincial-level courts to rule the carbon pricing system unconstitutional. In a 6-3 ruling in March of last year, the Supreme Court of Canada determined Ottawa has the authority to impose a minimum price on greenhouse gas emissions across the country.
David Wright, a law professor at the University of Calgary who specializes in natural resources and environmental law, said that while the court’s opinion doesn’t have an immediate affect on the law, it would be beneficial to have the Supreme Court of Canada weigh in.
“All Canadians will actually benefit from the short-term uncertainty and political pain that this reference case initiative causes because once the Supreme Court of Canada issues its opinion, we will have much more clarity on this area of law than we’ve had for a long time,” said Prof. Wright.
He said the majority focused heavily on potential consequences to the province without adequately weighing the environmental impacts the act is intended to protect against, in addition to ignoring constitutional safeguards that are already included.
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Alanna Smith