The Trudeau government has said it will make amendments to the Impact Assessment Act, which was ruled unconstitutional by the Supreme Court of Canada on Friday because it goes beyond the federal government’s powers. However the government said it intends to keep the law in place.
The 2019 law, , dubbed the “no more pipelines act” by its critics, overhauls the federal government’s role in major natural resources projects, allowing it to consider numerous new potential impacts, such as climate change and gender equity, when assessing oil and gas projects, mines, power plants and numerous other kinds of other major projects.
The Alberta government challenged the law, arguing that the law interfered in areas outlined as provincial jurisdiction in the Constitution. The Alberta Court of Appeal found in 2022 that the act went beyond the federal government’s powers, leading to Friday’s Supreme Court decision.
In a 5-2 decision, the Supreme Court found that the law could apply to projects on federal land or those receiving federal financing, but said the federal government was acting outside of its jurisdiction if it used the law more broadly.
Chief Justice Richard Wagner wrote the majority decision and said the government has a role to play in protecting the environment, but it also has to respect the bounds of the Constitution.
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“Environmental protection remains one of today’s most pressing challenges, and Parliament has the power to enact a scheme of environmental assessment to meet this challenge, but Parliament also has the duty to act within the enduring division of powers framework laid out in the Constitution,” Wagner wrote.
The court has upheld the federal government’s ability to draft legislation in environmental issues previously, most notably with the federal carbon tax.
“There is no doubt that Parliament can enact impact assessment legislation to minimize the risks that some major projects pose to the environment. This scheme plainly overstepped the mark,” Wagner wrote.
He encouraged the provincial and federal governments to work together on environmental legislation.
“It is open to Parliament and the provincial legislatures to exercise their respective powers over the environment harmoniously, in the spirit of cooperative federalism,” he wrote. “Both levels of government can exercise leadership in environmental protection and ensure the continued health of our shared environment.”
Natural Resources Minister Jonathan Wilkinson said the government accepts the court’s decision, but he said he does not view it as a rejection of the law, only that it means small changes and clarifications will be required.
“It can be dealt with in a relatively surgical way such that we can actually move this forward. I think we all have an interest in finding ways to move this forward expeditiously,” he said.
Wilkinson said the government is prepared to work with provinces, because he believes large projects need regulatory clarity.
Environment Minister Steven Guilbeault pointed out that because the court was ruling on a reference case, the law itself was not struck down and he said the court was simply offering an opinion on its constitutionality.
He said the government will amend the law, but did not have a timeline for when that will take place. He said the court was clear the federal government has a role to play in regulating projects.
Alberta Premier Danielle Smith said the decision should be a wake-up call to the federal government that it can not interfere with projects that don’t cross provincial borders. She said Wilkinson and Guilbeault should closely study this ruling and consider it when it comes to some of their other proposals.
“If they are trying to pretend that they somehow still have the right to proceed with those offensive pieces of legislation that are clearly in our jurisdiction, they’re fooling themselves, it’s illegal, and we’re just not going to stand for it.
She said any company interested in a major project in Alberta should come forward now and her government will give it the green light. She said the Federal Impact Assessment Act has stood in the way of important projects.
“It is already responsible for the loss of tens of billions of dollars in investment and thousands of jobs across the country in many economic sectors. Today’s ruling represents an opportunity for all provinces to stop that bleeding, rebuild investor confidence and attract those jobs back into our economies,” she said.
Smith has been fighting against the Liberals’ proposal to force provincial power grids to be “net zero” emissions by 2035 and she said this Supreme Court decision strengthens Alberta’s case.
“We have the exclusive jurisdiction over natural resource development and the exclusive jurisdiction over electricity development, and they should make sure that they honour that.”
Wilkinson said his interpretation of the decision is that the federal government still has the ability to regulate projects through current federal laws around species at risk, fisheries and migratory bird legislation.
“The court has said that some of the language in the act needs to be tightened up and more fully tethered to areas of federal jurisdiction,” he said. “We accept that, but it is not inconsistent with the way we’ve implemented the act over the course of the past number of years.”
Conservative Leader Pierre Poilievre said the ruling was evidence the law had bypassed the Constitution to block resource development.
“Justin Trudeau, with the help of the NDP, has violated the constitutional rights of Canadians to develop their own natural resources. He has blocked natural gas liquefaction facilities, he has blocked lithium, cobalt and other mines. He has prevented Canadians from producing resources and bringing home powerful paycheques,” Polievre said. “He’s done it all to appeal to a radical NDP agenda that wants to leave all of our resources in the ground and all the money in the pockets of dictators.”
Wilkinson said the previous approach of the Harper government led to lawsuits because it didn’t take into account Indigenous perspectives, ultimately delaying projects
“It failed to incorporate the concerns, the perspectives and the aspirations of indigenous peoples. Good projects simply took too long or simply could not be built,” he said.
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