In 2019 the federal government enacted the Impact Assessment Act which regulated “designated projects” (think: oil sands, mining and other major projects within provincial boundaries). The Kenney government tagged it the “No More Pipelines Act” and brought a reference case to the Supreme Court of Canada arguing that the IAA was unconstitutional.
Last Friday the Court released its opinion.
In a 5-2 decision the majority determined that the IAA (with respect to designated projects) was indeed unconstitutional because the Act was not sufficiently focused on environmental effects within federal jurisdiction and the definition of “effects within federal jurisdiction” was overly broad.
Now, before Danielle Smith breaks out the champagne it’s important to note that the IAA remains valid and the federal government has committed to addressing the Court’s concerns by amending the IAA’s overly broad language, a task the law profs at UofC say should be “relatively manageable.”
This was an interesting case, not just because of the 5-2 split. All the justices hear the same legal arguments, read the same factums, and review the same caselaw and scholarly articles and yet the dissenting justices found the IAA to be constitutional. This gives me hope because the dissenting opinions of today have a way of becoming the majority opinions of tomorrow.
The Court’s take on environment
The Court outlined some legal principles and reinforced some of it key decisions relating to environmental law, including the following:
- Three decades ago, the Court acknowledged that the protection of the environment has become one of the major challenges of our time.
- Environmental protection is a fundamental value in Canadian society.
- The Canadian judiciary, together with the other branches of government, plays an important role in protecting the “right to a safe environment.”
- The Constitution Act 1867 delineates federal and provincial jurisdiction for a great many things, but the “environment” is not one of them. As a result, the federal and provincial governments pass laws relating to the environment through their other constitutional powers listed in section 91 (federal) and section 92 (provincial).
- Consequently the “environment” is a shared and overlapping responsibility which cuts across sections 91 and 92.
- Depending on the circumstances, the federal and provincial governments will both have legislative authority over the same activity or project. Or to put it another way, just because a project is wholly within a province’s boundaries and is primarily subject to provincial jurisdiction does not make it immune from valid federal legislation. So no, Danielle, the IAA decision did not give Alberta the green light to do whatever it wants within its borders.
- Such shared responsibility is neither unusual nor unworkable in a federation such as Canada.
- However, let’s be honest, sharing responsibility for the environment can cause friction between the provincial and federal governments.
- This friction can be resolved (1) in the courts or (2) through negotiation conducted in the spirit of cooperation and harmony. (May I suggest we go with (2), environmental protection is too important for politicking).
Which brings us back to where we started.
The federal government passed the IAA in 2019 as part of a package to protect the environment and address climate change. The Court is of the opinion it’s unconstitutional and the feds will amend the Act to rectify this.
We’re on the same expensive and time consuming path with the federal regulations relating to emissions from electricity generation and the emissions cap on the oil and gas sector.
While I wasn’t thrilled with (and had difficulty following) the Chief Justice’s reasoning that led him to conclude the IAA was unconstitutional, I did agree with two things he said:
“Environmental protection is a fundamental value in Canadian society and one that is shared by Canadians from coast to coast” and “It is open to Parliament and the provincial legislatures to exercise their respective powers over the environment harmoniously, in the spirit of cooperative federalism.”
So can we please stop using the environment as a political football and get down to business mitigating the impacts of climate change?
And if that’s a bridge too far, can we vote in a government that believes climate change is real and is prepared to work with the feds to combat it, because folks, we’ve got a long way to go and not much time to get there.
Susan on the Soapbox 
Climate change is important and a global issue but the Alberta government won’t even stop the cumulative impacts of industry to the headwaters (East Slopes) that is the critical water source for three prairie provinces. That should be a Federal issue that any court should understand.
Carl, I agree with you 100%. The ABLawg post by the UofC law profs provides a good summary of what falls within federal jurisdiction with respect to pollution. It states the federal government doesn’t currently have broad jurisdiction over interprovincial pollution, or greenhouse gas (GHG) emissions. However prior court cases have recognized (i) marine pollution by ocean dumping, (ii) pollution of interprovincial rivers, and (iii) minimum national standards for carbon (GHG) pricing as matters of national concern pursuant to Parliament’s residual power to enact laws for the “peace, order and good government” (POGG).
It seems to me the courts struggle with the cumulative impacts and interprovincial impacts generally. In law school we learned that the law lags behind society, in this case, it needs to speed up.
Here’s the ABLawg link: https://ablawg.ca/2023/10/16/wait-what-what-the-supreme-court-actually-said-in-the-iaa-reference/
Good morning. I think one of the messages that environmental activists and other progressive civil society groups need to take away from this is this: they need to redirect their efforts. I feel there has been a tendency for those of us on the left to labour under an unhelpful misapprehension — that the federal government is somehow the provinces’ Daddy, and can tell the provinces what to do. As such, anytime a provincial government does something we don’t like, we call upon the federal government to take some action to counteract that provincial decision. This same attitude appears when we’re talking about health care.
In fact, each level of government is sovereign within its own jurisdiction, and neither is subservient to the other. So we’re all going to have to do the hard work of pushing our 10 provincial governments to do better, or work to support their more progressive opposition parties if the ruling party is intransigent.
The Prime Minister isn’t some school principal that sets the Premiers’ knees shaking if called into the office. Ottawa can’t be the solution anytime we don’t like a provincial policy.
Absolutely agree…..but changing government in Alberta is hard work. I know. Been at it since 2010. We need to leave the security of our offices, our neighbourhoods and our little circle of friends and join a constituency ; we also need to read widely…know a bit about our history…and learn from those who’ve been fighting for a progressive government in Alberta for decades.
Until that happens, the crazies, who are organized….are going to continue to cut our children’s future off at the knees. It’s always only been about them…and their immediate economic benefits. Too few of us have a better set of values
Jerrymacgp: you’ve made a critically important point and expressed it well.
I don’t know whether activists simply don’t understand the division of powers or whether they’re frustrated with the lack of progress we see here in Alberta and are clutching at straws, but the bottom line is the feds can’t help us, even if they wanted to.
Alberta is part of Canada. Canada is a federated state. The powers of the federal and provincial governments are set out in the Constitution. They are for the most part sovereign powers although there are powers that overlap and legal doctrines that come into play to allow certain joint sovereignty to apply.
While we may wish to expend the federal power to regulate the environment, that only gets you so far, because a cautious court will not necessarily deliver the result we want. Also when the conservatives come into power they can wipe out all the headway the Liberals have made with a stroke of a pen.
So we have to get our act together here in Alberta. We have to force the government in power to address the environmental issues within their jurisdiction. It will be a tough slog but there’s no other way.
I couldn’t agree more Susan…and thanks for the clarification on what the Supreme Court decision actually means. But I am struck by your bracketed comment that you had trouble following the Chief Justice’s reasoning behind the decision. Are you not a lawyer? And what can we conclude about our Supreme Court if a decision that might be read as a ‘green light’ for Danielle Smith and her Take Back Alberta crowd to bring in the Australians to finish off our eastern slopes (the watershed for the prairies), is hard to follow?? Imperial Oil’s Kearl site apparanty factored in the seepage they knew would happen……….the leak was kept silent as long as it was, most likely because the seepage was worse than they’d planned.
People in that region would have been glad of Federal oversight….our Alberta Energy Regulator (AER) being the captured bunch of hostages that they are. Funny no one is calling for their release isn’t it?
Ingamarie: yes I’m a lawyer but I did have trouble following the Chief Justice’s reasoning. I thought he hammered on the requirement for specificity in the legislation too hard, using the so-called lack of specificity as a reason to find the IAA unconstitutional. The two justices who wrote the dissent had no issue with the so-called lack of specificity, so I was not alone in this view.
The concern I raised about Smith taking the decision as a “green light” comes from the fact that she’s already misdescribed the decision, saying it demonstrates Alberta was firmly in the right when it bucked the IAA. This is typical of politicians who over-inflate court decisions that go their way or dismiss them as the “woke” ramblings of the “unelected” judiciary when they don’t.
Your points about the eastern slopes and the Kearl site are very well taken. This all leads me to conclude we need to find a better way to fight these things.
Agreed.
Hi ingamarie and Susan. I just glanced through the review Susan referenced by Olszynski, Bankes and Wright. They, too, had trouble parsing the reasoning of the majority, regarding the decision-making process laid out in the IAA. In the section “The IAA’s Constitutional Defects, Implications, and Remedies” they point out apparent contradictions in the SC decision and quote a long paragraph verbatim. It’s dense, and I haven’t studied it in detail (and I’m definitely NOT any kind of lawyer). But it may be the SC justices misrepresented a critical point: you can’t separate the details of what pollution might be released, and the overall environmental, economic and social effect of the entire project.
But wait, there’s more! The SC decision doesn’t much mention Indigenous peoples, and their rights. Olszynski et al say their colleague Robert Hamilton will address this soon. (Oh, I can’t wait. Imagine the irony: “the Indians” might yet save us from Danielle Smith’s stupidity.)
What’s clear so far, as Susan has pointed out, is that Danielle Smith is utterly wrong to claim she has carte blanche to approve new oil and gas projects in Qberduh.
Mike, as you point out even the legal scholars found this opinion to be a bit of a head-scratcher.
Apparently Smith was surprised Alberta had “won.” (I use the term loosely, given that this was not a binding decision). I suspect she thought the Court would support the federal government’s position because it had previously upheld the federal carbon pricing regime. This makes me wonder whether Smith understands the rule of law. The Courts are independent of the government, even the one that’s appointed them to the bench. So the fact they upheld one piece of Liberal legislation does not mean they will uphold another.
Secondly, she appears to believe that a “win” on the IAA case guarantees a win on the proposed federal regs limiting emissions from electricity and oil and gas projects. Apparently she’s not aware that these emissions regs are being passed pursuant to a completely different statute, the Canadian Environmental Protection Act, and consequently the analysis may very well result in a win for the feds.
Thanks for this addition to the subject. I agree the native people may yet save us all, which is why we’ve been supporting members of RavenTrust for many years. We whites are always so sure of ourselves, but re-reading a wonderful book called BEING SALMON, BEING HUMAN recently, I came upon a funny anecdote.
The author asked a member of the Klallam tribe if they had a word for ‘reason’ or ‘rational. The tribal representative had a very hard time coming up with something, but said eventually that the closest he could come would be an expression “the pitifulness of our thinking”. The author concluded that the people of the Salmon knew humans were ingenious, but they also recognized that many of our bright ideas have downsides…
This is a truth Smith and her buddies have yet to grapple with.
Ingamarie: thanks for sharing the story about the Klallam tribe and their word for “reason”. Very apt.
“Rule of law”? Susan, I’m certain Smith doesn’t understand–and wouldn’t care if she did. Think “Pawlowski.”
Hi ingamarie, thanks for sharing that story. I’m willing to bet the original Klallam word has a much more subtle meaning–but oh, how well the translation describes colonist hubris!
Well as usual, Smith and Scott Moe are over-selling their “victory” over the dreaded Libs. All of Ms. Soapbox’s careful analysis will be utterly ignored by the Rabid Right. Every time someone says “No, you can’t do that” Smith will screech and howl about how unfair it is that she has to play by the rules. Her puppet master, David Parker, will claim that Communists have taken over Ottawa.
Three years and seven months till the next election in Qberduh. God give me strength….
Mike: I echo your sentiment: God give me strength!!!
Susan: Thanks for sharing another great blog. Danielle Smith and the UCP believes that money trumps anything else. We do not want a degraded environment for ourselves, and for our future generations. It is not a good path to be taking. No amounts of money can turn things back to the way they used to be, after that happens. If the UCP were allowed to do things without any oversight, it’s going to leave a big mess. I’ll play some more fitting music. This is a song bt the Canadian progressive rock band, Rush. It is Distant Early Warning. It was released in 1984. Neil Peart, Geddy Lee and Alex Lifeson wrote it. I saw Rush twice live.
Dwayne, you’re absolutely right about the degradation of the environment (your song pick was perfect). Recently I head an interview with Jane Goodall. She’s 89 now, travels 300 days a year talking about the need to protect the environment and biodiversity. She said she still has hope because the young (1) understand the severity of our circumstances and (2) are prepared to collaborate to fix it. That was heartening.
PS how cool that you saw Rush in person!
Dear Ms. S: Another scintillating blog. Excellent work.
How about we just stop electing people embedded in conspiracy culture. Would that be so hard? All of the other provinces manage to do it. For some unknown reason that lofty ambition eludes us.
Jaundiced Eye: Thanks. I agree with you and like you wonder what it is about Albertans that gets in the way of them electing someone other than the no-longer-conservative nutball party.
It may be that a paucity of critical thinking is responsible for the continued election of the nutball party.
Susan: Here is my second song pick. This is from Bruce Cockburn, and is If A Tree Falls. This is a live version from 2009. I did see Bruce Cockburn live, and met him. He is also in my music collection.
Dwayne: That was an incredible song. I looked it up. Cockburn wrote it in 1988. That’s 35 years ago. And yet here we are with Smith et al battling the feds who are trying to do something to mitigate climate change. That makes Cockburn’s line “Anybody hear the forest fall?” even sadder.
Susan: Here is my final song pick. This is Steve Winwood and Carlos Santana live in 2004, and they are doing a version of the Timmy Thomas song, Why Can’t We Live Together? I saw Carlos Santana 5 times live, and I saw Steve Winwood twice live. Both are in my music collection. This is a fitting song for the times we are now in.
Dwayne, two of my favourite musicians performing a wonderful song..
Aren’t you lucky to have seen them both, especially Carlos Santana who I’ve admired for such a long time.
Thank you!
What a charade as usual.
The total lack of ethics and morals is on display for everyone to see but always in subtle ways hard to prove and with a touch of Goebbels design.
Take Back Alberta ‘King’ Parker has already been fired from the Ditchley Foundation. We just have to poke and poke so that we can justify what we have been called by both this arrogant and his oil servant Daniella – ‘WOKE’ and ‘NAZIS’.
Manipulative is the politically correct word to replace CHEAT. That is what they are doing with these directed surveys and so called phone town halls. 7.5 million dollar propaganda to get the little woke Nazis to agree to give them our money to pay these people’s land lords that in the last 30 years, if you compare with what is happening in Norway took about a trillion dollars in profits out of this province. This is what they call the price of doing business and creating jobs for the people.
What is going on with this CPP issue is abhorrent, undemocratic and to me a non surprising disrespect to all of us. We are on the road to witness what greedy predators are capable of doing when they decide they are superior to the rest of us like this arrogant Parker that had the courage to insult our health care workers that so brilliantly put up with the most horrendous 2 years of pandemic while some of our aristocrats broke the rules with vacations in Mexico and alcohol festivities in public buildings.
Here is a reminder of this brilliant premier arrogantly attacking the Federal Government just because she does not understand any other language.
Here is some of this premier’s most brilliant claims:
1 – Privatization of Hospitals and that cancer is preventable until stage 4
2 – Comparing vaccinated Canadians (me included) as supporters of Hitler
3 – Unvaccinated Canadians are the most discriminated group she has ever witnessed
4 – She falsely claimed to be of Cherokee ancestry
5 – Refuted the existence of mass graves around Residential Schools
6 – Claimed that Russia invaded Ukraine to fight neo-Nazis and destroy American funded bioweapons labs
7 – On her first day in government she tried to drop criminal charges against her buddy Artur Pawlowsky
By the way whatever happened to the RCMP investigation of our last brilliant UCP Premier Jason Kenney?
https://www.nationalnewswatch.com/2023/10/17/canada-pension-plan-board-says-alberta-pension-exit-consults-are-biased-manipulative/
Carlos: excellent points. I wanted to add a comment to the discussion around David Parker being “ditched” by the Ditchley Foundation. What was amazing to me was that none of us would have know about Parker being forced out (at least not for a while) had Parker not told us that in a Tweet. He posted the letter from Ditchley saying he was out and captioned the letter with a comment that implied the “woke” crowd were behind his expulsion.
Who knew the “woke” were so powerful that they could make an international organization that’s run by CEOs and former police commissioners, that holds “invitation only” conferences to ensure the right people are attending, who knew that the “woke” could force them to dump David Parker.
The fact he believes this to be the case is incredible.
This is the language these people understand. Of course it is very convenient and I am sure profitable behaviour. I am sure the Australian Billionaire is very aware of how to get what she wants. These people have experience all over the world and they know the levels of corruption everywhere.
https://albertapolitics.ca/2023/10/guest-post-alberta-has-already-killed-the-notorious-grassy-mountain-coal-mine-so-why-is-it-still-alive/
Carlos, all I can say is we must never let our guard down. Ever.
Susan: What are your thoughts on this?
https://www.bnnbloomberg.ca/video/alberta-energy-regulator-stands-in-the-way-of-orphan-well-clean-up-report~2788336
Dwayne: I have the utmost respect for Drew Yewchuk. He’s done the research and if he says, based on his research, that the AER is not doing its job when it comes to cleaning up orphan wells, then I believe him.
This is yet another example of what happens when the regulator and the government are captured by the industry. What makes this even more aggravating is the fact that at the end of the day it’s the taxpayer, not industry that pays to clean up the industry’s mess.
Yewchuk has really put the cat in with the pigeons re the AER’s mendacity and doublespeak – see https://www.cbc.ca/news/canada/edmonton/alberta-oil-well-liability-energy-regulator-1.7088683
I’m no pollyanna re mining – its a cruel fact that what humans don’t grow, we cut down in forests, jerk out the rivers and oceans with nets and dig out of the ground. That is what humans do. Its our global activity.
However, it seems to me that the calculations of Net Present Value re the commerciality of extracting a resource out of the ground by the Canadian Oil and Gas mining section is wildly skewed in favor of overpromising economic return of the deposit and wildly underestimating or not even being arsed to account the costs of remediation.
Its seems to be some real economic dishonesty going on.
Of course it doesn’t help that the Provincial Govt and its Ministries are so captured by the industry (‘Wearing a Tar Collar’ as I like to put it) that they are more than willing to let the deception continually play out. The PCs before and UCP after them and the go-along-to-get-along Ministry folk who have FORGOTTEN who they are there for, have forsaken any notion that the People of Alberta are the owners of the resource, not the extractive industries who contract with the Govt to exploit those Crown resources.
My final take on it is if the People of Alberta are going to handed the bag to clean up after O&G, then the royalty rates need to move to a lions share going to the People of Alberta. Its time we acted like the owners of the resource, instead of Tiny Tims cringing, hands out in supplication, begging for crumbs.
Lee, you’ve raised so many good points here. I especially agree with the comment that government and its agencies have been captured by the industry (I liked your “tar collar” characterization) and we the people aren’t much better given that we continue to elect governments who give the industry what it wants. We’d better wake up to the long term liabilities we’ll be stuck with if we fail to hold the industry accountable for the environmental mess it has created. A few light taps on the wrist now and then simply doesn’t cut it.