Saturday, December 10, 2022

Alberta’s highest court deems Impact Assessment Act to be unconstitutional


The Alberta Court of Appeal has determined that the federal government overstepped its mark with the Impact Assessment Act.

The decision on the act, previously known as Bill C-69, was made with a majority opinion from three of five justices, with an additional judge signing off on that opinion. The Honorable Chief Justice Catherine Fraser, Honorable Justice Jack Watson, JD Bruce McDonald found the act to be ‘a federal overreach’ and it was concurred by Justice Jo’Anne Strekaf.

Justice Sheila Greckol had the lone dissenting opinion.

Alberta had argued that the act was a “Trojan Horse” that intruded into provincial jurisdiction. Ontario, Saskatchewan, the Woodland Cree First Nation and Indian Resource Council along with oil and gas producers all supported the province’s challenge.

The Woodland Cree and Indian Resource council believes the act encroaches on the independence of First Nations Groups, supporting the use of the act by the federal government.

The federal government argued that the act focused merely on the “adverse effects within federal jurisdiction” from designated projects.

Federal Natural Resources Minister Jonathan Wilkinson says the legislation is constitutional and the federal government will be appealing the decision.

“We consulted broadly with Indigenous communities, with Canadians, with industry, with legal experts from around the country,” said Wilkinson in Ottawa. “We are very confident that this is constitutional, that our position will be upheld.

“The whole point of an environmental assessment process is to have rigor, to ensure that we are actually addressing substantive environmental concerns at the very early stages, such that good projects can go ahead and projects that actually are not able to be conformed to good environmental standards, do not.

“If in fact this legislation was not to be in effect, we’re in a situation where we’re not being protective of the environment.”

The Athabasca Chipewyan First Nation says that striking down the act would restrict Indigenous participation in environmental assessments.

The court says there is no government that has power over the environment.

In the majority opinion, the court determined that Section 92A of the Constitution, Resource Amendment, gives exclusive jurisdiction to provinces for exploration, development, management and conservation.

“The court’s opinion says the act is meant to establish a federal impact assessment and regulatory regime to review and regulate all effects of both federally designated projects and intra-provincial designated projects.”

The court concluded that Section 7 of the legislation prohibits a designated project for Indigenous people from doing any act or thing resulting from a change in the environment on physical and cultural heritage, the current use of lands and resources for traditional purposes and any structure with historical significance.

The court summarized 13 factors in its opinion stating “Canada’s Constitution does not permit this hollowing out of provincial powers.”

Justice Greckol, who supported the use of the act, says that natural resource projects are not an enclave of exclusive provincial jurisdiction for all purposes including environmental protection, immune from federal consideration.

“Oversight of environmental impacts cannot be the monopoly of one level of government,” said Greckol.

In her conclusion, she found the act is a valid exercise of parliament’s authority, citing Ottawa’s establishment of a federal environment assessment regime that regulates effects within federal jurisdiction.

“Now is not the time to give credence to the kind of “Trojan Horse” metaphor advanced by Alberta and Saskatchewan that (likened) Canada to a foreign invading army deceptively breaching our protective walls,” said Greckol.

This opinion is not binding.

If Ottawa wants to appeal, it can try to do so, to the Supreme Court of Canada.

Alberta’s Minister of Energy Sonya Savage lauded the court decision.

Premier Jason Kenny offered his response to the decision Tuesday afternoon.

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