June 19, 2024

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A federal environmental law that has been condemned as a “wrecking ball” goes on trial Tuesday as the Supreme Court of Canada considers whether Ottawa is stepping on provincial jurisdiction by giving itself more oversight of major resource projects.

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The federal government is asking the Supreme Court to overrule an Alberta Court of Appeal opinion that declared the 2019 Impact Assessment Act (IAA) to be unconstitutional.

The act was adopted to “establish a federal environmental assessment process to safeguard against adverse environmental effects in relation to matters within federal jurisdiction,” the attorney general of Canada stated in written legal arguments to the Supreme Court.

The Alberta government counters that the act is “a profound threat” to provincial jurisdiction over natural resources.

“Alberta’s economic wellbeing, and the employment and prosperity of its population, are dependent on its ability to sustainably manage and develop its natural resources, and in particular its oil and gas resources,” the attorney general of Alberta argued in its written legal brief.

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Under the Canadian Constitution, provinces have exclusive jurisdiction over laws relating to resource development. However, neither the provinces nor the federal government has total control over environmental regulation. The IAA, also known as Bill C-69, strengthens federal authority to assess the impact of new resource projects and potentially stop them, if they affect climate change, public health and Indigenous concerns. The act can also stop projects if they affect other areas of the environment regulated by Parliament, including fisheries and federal lands.

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The appeal, which is one of the most significant in the Supreme Court’s winter term, is drawing 29 intervenors, including Indigenous groups, environmentalists, business groups and seven provinces. Environmentalists and most Indigenous organizations are siding with the federal government, while industry and some Indigenous organizations and all but one province are backing Alberta.

The Alberta Court of Appeal, in its 204-page judgment last year, acknowledged climate change is an “existential threat facing this country.” But the court’s majority concluded that the legislation also poses “another existential threat” and that is “the clear and present danger this legislative scheme presents to the division of powers guaranteed by our constitution and thus, to Canada itself.”

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The environmental law, the court continued, “has also taken a wrecking ball to something else — and that is the likelihood of capital investment in projects vital to the economy of individual provinces.”

Ottawa will try to convince the Supreme Court that it already established federal jurisdiction over the environment three decades ago when it ruled the federal government had the authority to conduct an environmental assessment of a major dam being built in Alberta. The 1992 decision in the case of the Oldman River Dam recognized the federal government’s power to enact legislation preventing detrimental environmental effects, the federal government says.

Indigenous groups on both sides of the case are closely watching the outcome of the appeal.

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Ryan Beaton, a lawyer for the intervening First Nations Major Project Coalition, says there is “a third order of government in Canada’s constitutional landscape” and the case can be viewed as the major one in determining how Indigenous jurisdiction fits with federal and provincial powers.

The legislation sets out requirements for consultation with Indigenous communities and requires Indigenous knowledge to be incorporated.

“If this act is not there, that kind of consultation becomes much more ad-hoc and case-by-case basis,” said Beaton. The coalition represents First Nations leaders who provide technical expertise for natural resource projects on their land.

The Indian Resource Council, a group representing more than 130 First Nations involved in oil and gas production, is siding with Alberta. The council says in its legal arguments that the IAA created “a federal veto” and “presumed that certain extractive resource projects, such as oil and gas production, are inherently adverse to Indigenous peoples.” Alberta says in court documents that it and other provinces already have systems to regulate projects within provincial jurisdictions that balance environmental concerns and resource development.

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The Canadian Taxpayers Federation argues the federal legislation will result in “unnecessary and costly delays in project approval and construction, jurisdictional confusion, and the loss of clear lines of governmental accountability.”

The legislation already had an impact, Ontario and Alberta assert in their court filings.

Ontario describes how federal concerns about birds and animals have delayed construction of proposed Highway 413. Alberta says that the law has stopped a coal mine and an oil sands project.

Former Alberta premier Jason Kenney called the IAA the “no more pipelines” lawargued it would, in effect, block further oil and gas infrastructure development in Canada.

This is not the first jurisdictional clash between Alberta and the Trudeau government. The appeal comes two years after the Supreme Court backed the federal government’s minimum national carbon tax program, overruling the Alberta Court of Appeal, which said the program’s intrusion on the province’s jurisdiction over resources violated the constitution.

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The IAA hearing takes place Tuesday and Wednesday. One of the nine justices that was set to hear the case, Russell Brown, is currently on leave pending an investigation into a complaint over allegations he was involved in an altercation while on a trip to Arizona in January. Brown, who was appointed to the Supreme Court from the Alberta appeal court by former prime minister Stephen Harper, was one of the two dissenting Supreme Court judges who sided with Alberta two years ago in the carbon-tax hearing.

Benjamin Lopez Steven and Meagan Gillmore are students in a legal journalism course at Carleton University.

Special to National Post

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