Canada’s next big environment/energy/jurisdictional battle is at the Supreme Court of Canada next week. It’s not as straightforward as whether Ottawa has the right to impose a national price on carbon – the question from two years ago. But the debate over the sweeping national law for assessing the environmental ramifications of big projects is just as consequential.
On one side are the provincial governments, who overwhelmingly side with Alberta and the province’s belief that Ottawa’s Impact Assessment Act (IAA) threatens new development in its resource sector. Many still call it “Bill C-69″ or if you’re an opponent, the “No More Pipelines law.” Alberta says the law creates an overly onerous system that gives the federal government an unfair ability to deny or delay developments, such as a natural gas power plant, or an oil sands project. The Alberta Court of Appeal said last year the environmental assessment law could place provinces in an “economic chokehold,” and is also unconstitutional and undermines Canada’s division of powers.
Ottawa disagrees, arguing Alberta’s highest court ignored the principle of “co-operative federalism” and shared jurisdiction over the environment. The federal Liberals have also long argued that the law was designed to reform a broken system and restore public trust in how decisions about major projects are made – in part by ensuring Indigenous rights and climate concerns are a recognized part of the process.
But far from the complex constitutional arguments that will unfurl in the highest court of the land, how you feel about the IAA likely boils down to what region you live in, and which level of government and which party you trust the most. On the environment, do you want Ottawa as caretaker, or conservative governments in Alberta or Saskatchewan? When it comes to bolstering economic growth and getting things done, do you trust the minority Liberal government in Ottawa?
The hearing on the IAA on Tuesday and Wednesday is a reference case – meaning the court’s opinion is advisory only. But reference cases are still likely to shape policy direction – a key example being in March, 2021, when the Supreme Court ruled that Ottawa has the authority to impose a minimum price on greenhouse gas emissions. The Supreme Court majority said the provinces are incapable of addressing climate change effectively on their own.
When it comes to the IAA, some Indigenous communities in northern Alberta would agree that provinces can’t be left to do what’s right, and they want the federal government to keep a strong role in environmental matters. The Mikisew Cree and the Athabasca Chipewyan First Nations are intervening to urge the court to uphold the constitutionality of the federal law.
Both have been in the news this month on a separate matter, as a leak at Imperial Oil’s Kearl oil sands project has left some community members unwilling to drink or bathe in water from local waterways. Communities say they weren’t informed in a timely manner. And while Imperial Oil first informed the Alberta Energy Regulator about the leak in May, Environment and Climate Change Canada didn’t find out as it should have until the seepage had been going on for nine months.
Speaking to the 1867 constitutional division of powers, the submission from the Mikisew Cree to the Supreme Court says, “the federal Crown, as the more distant level of government, was – and remains – more likely to respect the reserves and treaties.” (Not every Indigenous group agrees with that sentiment. The Indian Resource Council said the IAA “presumes that certain extractive resource projects, such as oil and gas production, are inherently adverse to Indigenous peoples.”)
The federal government, indeed, has more separation from the oil revenues the Alberta government is deeply dependent on. Ottawa “has its eye on the whole pie, and not just pieces of the pie,” said University of Calgary Professor Martin Olszynski, who is also acting as a lawyer for World Wildlife Fund Canada, an intervenor. “There is certainly the perception it has tended to be both more rigorous, and more comprehensive.”
But from Alberta’s perspective, the federal government underplays the economic contributions of the oil and gas industry to the county as a whole, and is far too removed from the economic picture on the Prairies. When Ottawa looks at the effects of its climate policies, for instance, it looks at the economy as a whole, not specifically at export-focused Alberta or Saskatchewan. The IAA “is cooperative federalism, according to the Ottawa’s rules,” said Canada West Foundation vice-president Colleen Collins.
And while the federal government has long argued this is not about putting a halt to new projects, now-Environment Minister Steven Guilbeault has previously said it’s unlikely any new pipelines will be built under the IAA. “Now that we have a real evaluation and impact assessment for projects, we will come to the conclusion that many of these projects are incompatible with the goals we have for 2030,” Mr. Guilbeault told the National Post as a Liberal candidate in 2019, referring to greenhouse gas reduction targets.
Canada is not alone in struggling to address the climate challenge (or loss of habitat and biodiversity, or an explosion of plastics in oceans and waterways). But it’s hard for Albertans to not assess their position relative to our southern neighbours. The United States is being lauded for the massive infusion of cash into green energy, via the Inflation Reduction Act. At the same time, the U.S. manages to be the largest oil and natural gas producer in the world, and the Biden administration just this month approved a US$8-billion oil extraction project, Willow, in Alaska.
Back at the Supreme Court of Canada, adding to the confusing legal mix is Justice Russell Brown being on paid leave because of a complaint made after a physical altercation in an Arizona hotel. Based on his record, there’s a natural assumption Justice Brown would be on Team Provincial Powers. Now, Supreme Court Chief Justice Richard Wagner must choose whether to sit with eight judges and risk a tie, or designate a judge to sit out, which could influence the result.
Going forward, the Supreme Court will likely be dealing with more tug-of-wars over what level of government and what point of view should prevail on energy and the environment. Indeed, this case is likely a preview of further legal challenges as Ottawa pushes ahead on a Clean Electricity Standard, a cap on oil and gas emissions, and even a promise to cut regulatory red tape to get critical mineral projects up and running quickly. These – amazingly – are likely to be even more divisive.