Good morning. Mark Iype in Edmonton today.
The Supreme Court of Canada is hearing an important case this week that could have a big impact on a wide range of resource development projects in the West and across the country.
At issue is a jurisdictional debate over whether a federal environmental law should supersede provincial authority. As The Globe and Mail’s justice writer Sean Fine says, the case is particularly sensitive as it “involves determining the basic rules of the Canadian federation.”
The hearing on Tuesday and Wednesday will hear arguments about the Liberal government’s Impact Assessment Act, or the “No More Pipelines law” as it has come to be known by opponents, particularly in Alberta. The law, passed in 2019, is meant to address how the country weighs environmental costs against economic development, considering a broad range of factors including Indigenous rights, the impact on society and climate change.
Unsurprisingly, Alberta challenged the law immediately.
Alberta and the other provinces that have joined as intervenors argue that the law creates a system that allows the federal government to deny or delay big projects such as an oil sands development. The Alberta Court of Appeal agreed last year, saying the environmental assessment law could place provinces in an “economic chokehold,” while also ruling the law unconstitutional.
On the other side, Ottawa has argued that Alberta’s highest court ignored the principle of “co-operative federalism” and shared jurisdiction over the environment. The federal Liberals also say under the legislation, Indigenous rights and climate concerns are better recognized as part of the approval process for development projects.
While the hearing is a reference case only, meaning its ruling will only be advisory, as The Globe’s Kelly Cryderman argued in her column last Saturday, it will still likely shape policy direction. The best example she cites is the March, 2021, Supreme Court ruling that Ottawa has the authority to impose a minimum price on greenhouse gas emissions. In that ruling, the Supreme Court majority said the provinces are incapable of addressing climate change effectively on their own.
And if the hearing alone wasn’t consequential enough, arguments are being made in front of just seven justices, as opposed to the usual nine. The rare circumstance comes because Justice Russell Brown is caught up in a disciplinary process after an incident at an Arizona hotel in late January. Chief Justice Richard Wagner placed him on paid leave and Justice Michelle O’Bonsawin was designated to sit out this hearing, leaving just seven on the bench.
While the two missing justices may not have meant as much in many cases, it’s an important sidebar this week.
Justice Brown, appointed from Alberta, has been an outspoken voice for provincial rights while Justice O’Bonsawin became the first Indigenous member of Canada’s top court last fall.
So, while there won’t be a ruling issued for months still, all eyes are on the Supreme Court as this important case on federalism could have long-lasting effects for years to come.
This is the weekly Western Canada newsletter written by B.C. Editor Wendy Cox and Alberta Bureau Chief Mark Iype. 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.