The Supreme Court of Canada is pictured in Ottawa on March 3. Arguments are underway before the Supreme Court of Canada in a long-awaited case over the federal Impact Assessment Act.Sean Kilpatrick
The provinces’ rights to determine their own future are being undermined by the federal government’s assumption of sweeping powers over development projects, lawyers for several provincial governments told the Supreme Court of Canada on Wednesday.
But the argument faced skepticism from a court that just two years ago overwhelmingly upheld the federal government’s right to impose a carbon tax on the provinces.
Justice Mahmud Jamal, wondering about pollution that goes beyond provincial borders, said: “I guess the question is, if Canada doesn’t have jurisdiction, who does?” (The federal government is known as Canada in court.)
At issue is the 2019 Impact Assessment Act, which enables Ottawa to regulate natural-resource and other projects based on effects that fall into federal jurisdiction – such as on Indigenous peoples, birds, fish, and climate change.
Alberta asked the province’s Court of Appeal to rule on whether Ottawa exceeded its jurisdiction, and the appeal court responded with an emphatic yes, by a 4-1 count, saying Canada’s existence as a federal state was imperilled. The federal government appealed to the Supreme Court. Seven provinces were among the near-record 29 intervenors.
Alberta’s lawyer, Bruce Mellett, told the Supreme Court on Wednesday that the province already does comprehensive reviews of projects. Ottawa, he said, is imposing its own rules, focused on federal priorities.
New Brunswick took issue with a cri de coeur from the dissenting Alberta appeal judge on the need for co-operation in an environmental crisis.
“We in this country,” Justice Sheila Greckol wrote last year, “are all in the same boat. The division of powers provides multiple oars and in many instances no assurance that we will all row in the same direction.” Urging co-operation, she added: “Our planet is on fire, and we need water – not heat.”
After reading the quote to the court, New Brunswick’s lawyer Michael Hynes offered this retort: “The whole point of Confederation is that the oars are permitted to be rowed in different directions, depending on who’s holding the oar.”
Ontario’s lawyer, Joshua Hunter, told the court that no minimum level of risk needs to be shown before the federal government invokes an environmental review process that can last years. If the Environment and Climate Change Minister believes there is a public concern, he can hold up a project.
“Just yesterday, the minister [Steven Guilbeault] asked the agency [a federal body that conducts the assessments] to study the effects of building homes in Scarborough,” Mr. Hunter said. “If he doesn’t like the results of that study, he can shut down development needed to provide Ontario with homes.”
Justice Malcolm Rowe, a strong voice for provincial autonomy on the court, replied dryly: “Apparently there are some very old woodpeckers” at risk.
Mr. Hunter agreed. “Or maybe turtles, or what have you.”
Justice Rowe explained his point more fully in an exchange with Saskatchewan’s lawyer, Thomson Irvine. If a dam project is halted to consider the impact on a salmon fishery, Justice Rowe said, that’s acceptable; but the protection of salmon may be a pretext to launch a review in which Ottawa kills the project because it favours wind turbines over hydroelectricity.
Mr. Irvine replied, “I think that is our major concern with all of this.” Protecting the fish would be anchored in federal jurisdiction, he said; choosing one energy form over another would not.
Quebec told the court its main concern is preserving the “balance of federalism.”
“We’re asking the court not to give the federal laws more favourable treatment than provincial ones,” Frédéric Perreault, the province’s lawyer, said.
Manitoba made a similar point: “What we don’t need is one party always holding the trump card,” lawyer Charles Murray said.
British Columbia, alone among the provinces, offered a middle ground: The federal government may review activities that normally fall into provincial jurisdiction, such as a mine or oil sands project, and impose conditions to mitigate their environmental effects; but the provinces would retain the authority to determine whether those activities or projects are in the public interest.
Justice Andromache Karakatsanis said she was interested, but Justice Nicholas Kasirer said he found one aspect of B.C.’s position extraordinary – and not in a good way. That was the province’s view that the Constitution contains a kind of “notwithstanding clause,” similar to that found in the Charter of Rights and Freedoms, that gives the federal government a trump card, if it chooses to use it.
Justice Kasirer could play a critical role in deciding the matter. The carbon-tax case two years ago was decided 6-3, but one of the three, Justice Russell Brown, is on a leave of absence, while a discipline complaint against him plays out over a physical altercation and alleged harassment of women at an Arizona hotel. (Justice Brown says the allegations are false.)
The other two dissenters from that case, Justice Rowe and Justice Suzanne Côté, are expected to oppose the federal law at issue this week. Just seven judges heard the case – Chief Justice Richard Wagner sidelined Justice Michelle O’Bonsawin, the court’s first Indigenous member, to avoid a possible tie – and Justice Kasirer’s opposition, if it materializes, would lead to a close vote.
The court reserved judgment.