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    Supreme Court of Canada rules against impact assessment law [UPDATE]


Highest court strikes down No More Pipelines law. [UPDATEs with comment from Alberta, industry and observers]

by: Dale Lunan

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Supreme Court of Canada rules against impact assessment law [UPDATE]

The Supreme Court of Canada (SCOC), in a 5-2 ruling released October 13, found most of the federal government’s Impact Assessment Act – dubbed the “No More Pipelines” law by the oil and gas industry – to be unconstitutional because it aims to regulate industries that are within provincial jurisdiction.

The Alberta Court of Appeals ruled the act, specifically Bill C-69, unconstitutional in a 2022 ruling. Ottawa challenged that ruling and asked the SCOC for an opinion.

In the 204-page ruling, Chief Justice Richard Wagner, writing for the majority, agreed that environmental protection remains a pressing challenge.

“To meet this challenge, Parliament has the power to enact a scheme of environmental assessment,” he wrote. “Parliament also has the duty, however, to act within the enduring division of powers framework laid out in the Constitution”.

Specifically, Wagner wrote that rules under the act setting out projects designated for federal assessment were unconstitutional because while the act aims to regulate “effects within federal jurisdiction”, those effects do not drive the scheme’s decision-making functions, according to a summary on the SCOC web site.

Secondly, the summary said, the defined term “effects within federal jurisdiction” does not align with federal legislative jurisdiction. 

Alberta Premier Danielle Smith and Justice Minister Mickey Amery, in a joint statement, expressed their pleasure in the Supreme Court’s decision confirming the unconstitutionality of Bill C-69.

“This legislation is already responsible for the loss of tens of billions in investment as well as thousands of jobs across many provinces and economic sectors,” they said. “The ruling today represents an opportunity for all provinces to stop that bleeding and begin the process of reattracting those investments and jobs into our economies.”

The decision, Smith and Amery added, is a win for the protection of sovereign provincial rights and provides the province more ammunition in its fight against Ottawa’s proposed electricity regulations and an expected cap on greenhouse gas emissions from the oil and gas sector, both of which they said were “blatant” attempts to erode provincial rights.

“Today’s court decision significantly strengthens our province’s legal position as we work to protect Albertans from federal intrusion into various areas of sovereign provincial jurisdiction,” the joint statement said. “Alberta will continue to partner with other willing provinces and interveners in pushing back against these unconstitutional federal efforts using all legal means available to us.”

The Canadian Association of Petroleum Producers (CAPP) said it was reviewing the decision but was pleased that it reaffirmed the roles of each of the federal and provincial governments.

“Regulatory certainty and efficiency are key to facilitating natural resources projects that are in the interests of Canada,” CAPP CEO Lisa Baiton said. “In the spirit of the court’s call for cooperation, CAPP looks forward to collaborating with both the federal and provincial governments to ensure that projects in the national interest – those reinforcing energy security, providing lower emissions energy, and maintaining affordability to Canadians – will proceed in a timely manner.”

The Montreal Economic Institute (MEI), an independent policy think tank, said the decision will help streamline the approval of major energy infrastructure projects by removing duplicative federal and provincial assessment processes. 

“With this ruling, the Supreme Court rightly recognises that Ottawa went overboard and meddled in areas of provincial jurisdiction,” MEI public policy analyst Gabriel Giguere said.