Last fall, when the Supreme Court ruled that Ottawa’s law to review proposed industrial projects overstepped constitutional bounds, the federal Liberals’ ambitious climate agenda collided with an old reality: the division of federal and provincial powers.
The decision was hailed by some as a victory for provincial autonomy over the intrusive and heavy hand of Ottawa. That was always an overly simplistic take. The provinces do not have sole jurisdiction over which industrial projects can be built within their boundaries. Conversely, Ottawa certainly doesn’t have an unlimited ambit to intervene, as the Supreme Court ruling made clear.
The Liberals this month tabled changes to their 2019 Impact Assessment Act as part of the budget bill, choosing to curtail climate ambition for legal certainty. The changes are a pragmatic response to the government’s loss at Canada’s top court on one of its signature pieces of legislation.
First, however, some of the tangled history. Forgotten in this latest federal-provincial battle is the fact Ottawa’s purported heavy hand has been wielded in recent years, most notably by … Stephen Harper. In 2010, and again in 2014, Mr. Harper’s Conservatives vetoed a proposed gold-copper mine in British Columbia that was supported by the provincial government. It’s the type of decision that today would enrage a province such as Alberta. But Mr. Harper had constitutional jurisdiction, starting with federal responsibility for fisheries.
What changed when the Liberals took power was Ottawa’s focus on the environment, from the work to establish a national price on climate-heating greenhouse gases – Ottawa defeated the provinces’ legal challenge – to the push to bolster the federal project review law. While Mr. Harper twice said no to one gold-copper mine, his review law was designed to favour industry and speed approvals. That approach failed when the courts struck down the initial green light, given by the Trudeau Liberals, for the Trans Mountain oil pipeline.
Alberta and others believed the Liberals’ assessment act was an unfair barrier to expanding fossil fuels. That ignores the approval of a liquefied natural gas export plant last year. But it is also true, in 2022, the Liberals warned Suncor that a proposed oil sands expansion likely would be rejected because of high emissions.
Greenhouse-gas emissions, however, are not a fully established legal area of federal oversight. The Liberals’ scramble to get onside with the Supreme Court’s advisory decision is obvious from how they rewrote the “purpose” section of the assessment act. It had featured a long list, starting with “to foster sustainability.” That’s a valuable aim but constitutionally vague. The amended section is short and staked on “significant adverse effects within federal jurisdiction.”
In the Liberals’ retreat, it is fair to argue they were too cautious. They abandoned any inclusion of transboundary greenhouse gases as a national concern in such reviews, which would have inevitably faced another test in court. The chastened Liberals instead seemed scared of losing again and chose a conservative path. It means Ottawa could not reject a new oil sands mine on the primary reasons of climate change and Canada’s international treaty obligations to slash greenhouse gases.
The Liberals made the safe decision, legally, but one that limits federal options on climate. While the Supreme Court last fall spoke hopefully of provincial-federal co-operation, the provinces have their own agendas. Alberta, as the main example, has no real climate plan, drummed up new rules this year to restrict clean energy and does not seem interested in doing a full review of a massive carbon-capture project proposed for the oil sands.
Beyond project reviews, Ottawa has several other major climate policies. Carbon pricing on industry is one. But others such as clean electricity and a cap on oil industry emissions are still pending, with an uncertain future. Measures such as clean power can achieve a lot. Annual emissions from power generation have already fallen 82 megatonnes since 2001, as Ontario and Alberta got off coal. That’s almost the equivalent of eliminating the entire oil sands.
The Liberals’ climate ambitions have helped reduce Canada’s emissions 5 per cent during their time in office but remain far from the target. The retreat on the federal environmental review law doesn’t mean the end of progress, but it puts more pressure on other policies to achieve the country’s climate goals.