Alberta Court of Appeals finds Impact Assessment Act unconstitutional

Four judges argued that this law, which governs the appraisal of large energy projects, does not respect the separation of powers enshrined in the constitution. Only Judge Sheila Greckol wrote a contrary opinion.

Ottawa will appeal the decision to the Supreme Court of Canada.

That Impact Assessment Actwhich received royal assent in 2019, allows the government to examine how a project impacts Ottawa’s work on climate change, social impacts and gender parity, as well as its cumulative impact when combined with other projects.

From the outset, conservative provincial governments and organizations representing the oil and gas industry have opposed this bill, formerly Bill C-69.

The United Conservative government of Alberta, with support from the Ontario and Saskatchewan governments, challenged this federal law last year.

The three provinces criticized Ottawa for using this law as a Trojan horse to interfere in an area of ​​provincial jurisdiction, namely the production and management of natural resources.

A threatens to the constitution

In the majority decision, written in English, the four judges went so far as to describe this law as a threat to the country.

Climate change is not the only existential threat facing the country. That [Loi sur l’évaluation d’impact] poses another existential threat – just as urgent and momentous – and that is the obvious threat this legislation poses to the constitutionally guaranteed separation of powers.

The Impact Assessment Act is a classic example of legislative intervention. »

A quote from Alberta Court of Appeals

Judges are particularly concerned that the law may apply to projects that take place solely on provincial territory. The federal government only has to appoint them designated project.

They join concerns expressed by Alberta Premier Jason Kenney, who promulgated the law Pipeline Abolition Act. He has repeatedly pointed out that Ottawa is attempting to impede the exploitation of Alberta’s natural resources, particularly oil from the tar sands.

Alberta Premier Jason Kenney feels his province is being mistreated by the federal government. (archived May 2, 2019)

Photo: The Canadian Press/Sean Kilpatrick

The majority opinion even emphasizes that While some believe the law’s primary target is hydrocarbon projects, provinces should not take for granted these provincial highways, rail networks, wind or solar farms, and myriad other projects […] would be excluded from the scope of the law. You would not.

According to the four judges, the law defines the effects of a project to such an extent that they can relate to the entire human sphere without these effects necessarily falling under the competence of the federal government.

If the courts upheld the law, all provincial industries […] would be subject to federal regulation and would have veto powerwrites Chief Justice Catherine Fraser, joined by Justices Jack Watson, Bruce McDonald and Jo’Anne Strekaf.

The federal government on appeal

An hour after the ruling was published, Natural Resources Minister Jonathan Wilkinson said the government would appeal the decision and the law would remain in effect.

If we were to find ourselves in a situation where this law was no longer in effect, the environment would no longer be protected. , he said. He ruled out changing the law, emphasizing his belief that it was federal jurisdiction.

Prime Minister Justin Trudeau shared the same view. He recalled that the Alberta Court of Appeals previously ruled the state carbon tax unconstitutional, but the Supreme Court ultimately ruled in favor of Ottawa.

The federal government has the responsibility of making new laws for the country. We remain convinced of the need to protect the environment and reassure investors he said in English.

Jason Kenney calls on other provinces to join Alberta to defend the constitution in anticipation of the upcoming Supreme Court challenge.

Alberta celebrates

If this law is good for the industry, why did they join us in opposing it? Alberta Premier Jason Kenney quipped at a news conference.

The Canadian Association of Petroleum Producers, the Producers and Explorers Association of Canada and the Canadian Energy Pipeline Association intervened in the case.

This is a historic victory for Alberta. »

A quote from Jason Kenney, Premier of Alberta

Jason Kenney calls on other provinces to join Alberta to defend the constitution in anticipation of the upcoming Supreme Court challenge.

Our planet is burning and we need water

Only Judge Sheila Greckol would have won the federal government’s case. In the minority opinion, she points out that the monitoring of environmental impacts cannot be the monopoly of one state level as the impacts are ubiquitous.

Fumes from a Saskatchewan potash mine may affect the health of Quebecers or Indigenous peoples living downstream of a river that doesn’t care about provincial bordersgives her as an example.

She adds that case law has given the federal system of governance enough flexibility. Now is not the time to abandon those tools and, worse, give credence to the metaphorical Trojan horse of Alberta and Saskatchewanshe scolds.

Our planet is on fire and we need water, not heat. Most offer warmth. this is water [La Loi] at least gives the governments of this country a chance to work togethercloses them.

Part of the showdown between Alberta and Ottawa

17 organizations participated in hearings held more than 15 months ago. Alongside the oil and gas industry, the Woodland Cree First Nation has placed itself in the Alberta camp.

Several environmental organizations and two Alberta First Nations, the Chipewyan of Athabasca and the Cree of Mikisew, defended the federal government’s arguments.

The Alberta government has made this challenge one of the pillars of its promise to reach a fairer deal and renegotiate Alberta’s place in the Confederacy.

The province also challenged the federal carbon tax but lost in the Supreme Court. In this case, the Alberta Court of Appeals had previously agreed with him.

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