In a scathing, but non-binding opinion released on May 10, a majority of justices on an Alberta Court of Appeal panel held that the federal Impact Assessment Act is unconstitutional.
We disagree.
The Alberta court’s opinion is no surprise to anyone familiar with judicial consideration of the Greenhouse Gas Pollution Pricing Act. Ontario and Saskatchewan appeal courts both upheld the federal carbon tax, as did the Supreme Court of Canada; the Alberta Court of Appeal was the sole outlier in claiming the climate law was outside federal constitutional authority.
The Impact Assessment Act is on a similar trajectory. Little over an hour after the Alberta court released its opinion, Environment Minister Steven Guilbeault and Justice Minister David Lametti announced Canada’s intention to appeal it to the Supreme Court.
As we argued before the Alberta court, the Impact Assessment Act is reasonable, justified and falls squarely within federal jurisdiction. The appeal has every chance of success in the Supreme Court.
This case matters because it will confirm the extent to which federal authorities can inform themselves about the potential impacts, risks and benefits of projects that might harm the environment, climate or human well-being, or impact Indigenous rights.
Impact assessment is a “look before you leap” law, an important tool for considering the climate, biodiversity and health effects of projects before they are approved. It is also the best way for the public to have a say in projects that affect them, as well as an important process through which the free, prior and informed consent of Indigenous peoples may be obtained.
The Alberta Court of Appeal clearly does not see it that way, referring to the act as a “classic example of legislative creep” that would grossly upset the constitutional division of powers and place an “economic chokehold” on the provinces.
With respect to the court, these arguments don’t hold water. For starters, the federal government has been assessing projects’ impacts since the 1970s, and in 1992, a majority of the Supreme Court upheld Canada’s earliest environmental assessment process as a logical tool for gathering information in support of environmental decisions.
The Impact Assessment Act does expand the factors to be considered to include all positive and negative environmental, social, economic and health effects, as well as impacts on Indigenous rights. That is simply sound decision-making, not the jurisdictional overreach the Alberta Court of Appeal claims. Apparently, the court would prefer the federal government put blinkers on when considering the potential harms of development projects.
A court-imposed stop to federal efforts to protect their health and well-being will not be welcomed by Canadians, nor is it supported by Supreme Court decisions. There is ample case law supporting the federal government’s ability to inform itself of the effects and benefits of proposed projects before deciding whether to allow — or not — impacts within its jurisdiction to occur.
The Alberta court’s opinion also perpetuates the myth that this law — known as Bill C-69 prior to enactment — will stop all development in its tracks. In fact, federal impact assessment has led to the rejection of less than a handful of development projects over three decades. The claim also ignores the fact that the Impact Assessment Act applies to roughly a dozen projects a year across Canada. Compare that to the thousands of projects and activities assessed and approved under the law upheld by the Supreme Court of Canada in 1992.
The notion that the Impact Assessment Act is an economic chokehold as claimed by the Alberta Court of Appeal is simply unsupported by facts.
Impact assessment is nothing more than smart decision-making. In this age of the twin climate and biodiversity crises, and of the increasing recognition of the need to respect and uphold Indigenous rights and authority, the act is a more important tool than ever.
We are confident the Supreme Court will agree.
Anna Johnston is a West Coast Environmental Law staff lawyer and counsel to Nature Canada in the Impact Assessment Act reference. Stephen Hazell is emeritus counsel to Nature Canada.
Comments
"Impact assessment is nothing more than smart decision-making. In this age of the twin climate and biodiversity crises, and of the increasing recognition of the need to respect and uphold Indigenous rights and authority, the act is a more important tool than ever."
Correct me if I am wrong, but the Liberals approved the Trans Mountain Expansion Project (TMEP), the Coastal Gaslink pipeline, and the LNG Canada project all under the previous assessment process. The Liberals approved Newfoundland's Bay du Nord offshore oil platform under the new Impact Assessment Act.
Climate risk (adding to Canada's emissions) does not seem to pose any barrier to project approvals.
Given the low rate of rejections ("less than a handful over three decades") Canada's assessment processes, past and present, appear to set a low bar for project proponents to clear. Certainly, emissions are no impediment.
Did TMEP and the Coastal Gaslink pipeline win free, prior, and informed consent from affected indigenous peoples? Has the oilsands industry ever obtained free, prior, and informed consent from local indigenous peoples?
Smart decision-making? Or just more smoke and mirrors from the Liberals in Ottawa?
More whining, fear-mongering, and whipping up resentment by provinces like Alberta?
Meanwhile, our environmental perils multiply.
I like to think that, unlike the US, the courts in Canada have been able to avoid politics. Watching the Alberta Court of Appeal in recent years leads me to believe that they are also bought and paid for by big oil, just like the successive tame conservative (in many names) governments.
Alberta is strange. It's an old white wealthy people's club. The rural people who prop this up always vote how they are told and really think they are smarter than everyone else. As is typical of conservatives, they have a pathological lack of self awareness.
I'm so happy to be moving from Alberta back to Canada soon.
The critique of the Alberta Court of Appeal's decision is fair enough but the defence of the Impact Assessment Act (or even its precedents) is another thing. In one sense the scope of the IAA is an imporovement: the need to include socio-economic impacts and the consent of Aboriginal groups impacted. But in another sense the IAA is an abdication of federal responsibility: nuclear projects (SMnRs) are out; there are other exceptions. And anyway, as the article itself admits: in very few cases has the federal assessment (old or new) led to refusal of a project.
These obligatory assessments do serve to impose some discipline on the proponents and other arms of government. Even that has to be watched carefully, however, because of incompetence, laziness, insufficient capacity or, yes, subtle corruption. Transparency of the assessment and accessibility are therefore crucial.