Is the Supreme Court the next stop for Bill C-69 (Impact Assessment Act – IAA)? That seems to be the consensus following the Alberta Court of Appeal ruling that the federal government’s environmental impact law is unconstitutional.
The IAA deals with how energy projects are reviewed (mines, dams, electrical lines, pipelines, etc…). It considers the impact of energy projects on the climate and social factors and increases public participation. It was introduced in 2019 to replace the Canadian Environmental Assessment Act and drew criticism especially when amendments to the Bill were rejected in 2019.
The IAA also replaced the Energy Board with two agencies: the Impact Assessment Agency of Canada and the National Energy Board.
The tension over the Alberta energy sector comes at a time of global economic woes, including escalating fuel prices, increased demand for various natural resources to fuel “green energy,” and overall rising commodity prices.
Bill C-69 Drew Immediate Criticism
From a June 21, 2019, article in Global News, “Critics argue that Bill C-69 will create more red tape around efforts to bring Canadian oil to market, with Alberta Premier Jason Kenney dubbing it the ‘No More Pipelines Bill.’ Several Conservative premiers, provincial energy ministers, senators and MPs have warned that the legislation will repel energy investors and rob oil-rich regions like Alberta of the ability to capitalize on their resources….Essentially, they worry it will be tougher and take longer to get new pipeline projects approved in Canada.”
With the recent decision in the Alberta Court of Appeal, it appears that the environmental legislation may be headed for the Nation’s highest court. Both Prime Minster Justin Trudeau and Minister of Environment and Climate Change Canada, Steven Guilbeault have stated the decision will be appealed.
Significant Decision
From the Law Firm, Borden Ladner Gervais, “The Decision is significant for the Government of Alberta and various allied industry and Indigenous interveners. Since its inception, the IAA has faced fierce criticism from various provinces and resource market participants, who argued that the IAA introduced a high degree of regulatory uncertainty and complexity with respect to project approval and oversight. The Court echoed similar concerns and noted several practical business impacts flowing from the IAA, including delays and the stifling of investment.”
Is Bill C-69 (Impact Assessment Act) headed to the Supreme Court of Canada (Photo by Tom Carnegie on Unsplash)?
In an article in the Financial Post, they write, “The court’s non-binding ruling on May 10 called the IAA a ‘classic example of legislative creep,’ and an ‘existential threat’ to the division of powers guaranteed by the Constitution.”
Below is a synopsis of the arguments from both sides. This is directly from the Alberta Court of Appeal decision.
Alberta and Intervenors in Support of Alberta
“Alberta argues that the IAA intrudes impermissibly into provincial jurisdiction. It contends the IAA is a ‘Trojan horse’, enabling the federal government, on the pretext of claimed narrow grounds of federal jurisdiction, to conduct far-ranging inquiries into matters assigned exclusively to the provinces. The result is federal intrusion into areas of core provincial jurisdiction, including development of 92A natural resources and local works and undertakings, and an effective federal veto over intra-provincial activities and resource development.”
Canada and Intervenors in Support of Canada
“Canada defends the IAA on the basis it deals only with matters within federal jurisdiction. It characterizes the IAA as being focussed merely on the ‘adverse effects within federal jurisdiction’ from designated projects, arguing that the Regulations focus on large projects with the greatest potential for adverse effects within federal jurisdiction. Canada asserts the federal government is entitled to take into account the public interest in deciding whether, and if, it will impose conditions on the proponents of projects that will have ‘adverse effects within federal jurisdiction’. And it contends that the decision provisions of the Act restrain the outcome of an assessment to ‘adverse effects within federal jurisdiction’”.
Some commenting on the fate of the IAA have said that there are parallels between this Bill and Alberta’s previous case against the federal carbon tax. Canada’s Supreme Court ultimately ruled that the federal price on carbon did not violate the rights of the province.
As we learn more, we will share with the readers of our blogs and newsletters.
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