Good morning.
Wendy Cox in Vancouver today.
Ontario Attorney-General Doug Downey announced Tuesday his province would go to court in an effort to finish what Alberta started when Alberta launched a Supreme Court reference case challenging the federal government’s Impact Assessment Act.
In a major ruling earlier this month, the Supreme Court of Canada found that the law – enacted in 2019 and dubbed by critics as the “no-more-pipelines act” – reaches too far into provincial jurisdiction and is therefore unconstitutional.
The act gives Ottawa wide-ranging powers over natural-resource and industrial projects, allowing the federal government to scrutinize projects for “effects within federal jurisdiction” – such as on Indigenous peoples, birds, fish, species at risk and climate change.
But although the Supreme Court ruled 5-2 that it steps into provincial jurisdiction, the court also said a federal role remains possible in environmental assessments.
Immediately after the Supreme Court’s decision, the federal government said it would revise the act to make it comply.
But the Supreme Court’s ruling isn’t binding: Reference cases are brought by governments – in this instance Alberta’s with Ontario and other provinces intervening in support – to shape policy and law and the resulting decisions are advisory only (though pretty strong advice).
On Tuesday, Ontario’s Attorney-General said his province will launch a court case to kill the law once and for all.
Downey argued that it is unfair that a law declared unconstitutional by the Supreme Court is still standing in the way of infrastructure projects he says are desperately needed in a fast-growing province.
“We’re not going to wait and have our projects held up,” he told a news conference.
Downey said Ottawa’s assertion that it will amend the act left confusion and potential roadblocks in the way of provincial infrastructure projects.
“Despite this finding of unconstitutionality from Canada’s highest court, the minister has publicly taken the position that the act still applies in its entirety while the federal government drafts potential amendments,” the province said in a court filing on Tuesday.
In two applications for judicial review filed in federal court, Ontario cites the potential effects of the act on two projects – the building of Highway 413, linking up Peel, York and Halton regions north of Toronto, and an underground parking garage at Ontario Place, an amusement park.
Kaitlin Power, a spokeswoman for Environment and Climate Change Minister Steven Guilbeault, said the federal government will provide regulatory certainty by announcing interim guidance on how it will administer the assessment law and she said the act has helped speed up – not slow down – major projects.
“Since the act came into force, we have already seen major projects get approved on a faster timeline. It’s important to recognize that the Supreme Court explicitly upheld the right of the Government of Canada to implement impact assessment legislation and to collaborate with provinces on environmental protection.”
Duane Bratt, a political science professor at Mount Royal University in Calgary, wrote in a Globe op-ed last week that the jubilation expressed by Alberta Premier Danielle Smith upon release of the Supreme Court’s opinion was likely premature. He noted that paragraph 142 of the decision explicitly notes a revised law would be held up by a future Supreme Court.
He quoted from the ruling: “The fact that a project involves activities primarily regulated by the provincial legislatures does not create an enclave of exclusivity. Even a ‘provincial’ project may cause effects in respect of which the federal government can properly legislate.”
On Tuesday, Stewart Elgie, a professor of law and economics and director of the Institute of the Environment at the University of Ottawa, said the reference case brought by Alberta took 32 months to complete, and Ontario’s case could take 12-18 months.
“By the time Ontario gets a court decision, the federal government will probably have amended the IAA to comply with the Supreme Court’s ruling. Ontario’s action sounds like it is more about politics than law,” Elgie said.
This is the weekly Western Canada newsletter written by B.C. Editor Wendy Cox and Alberta Bureau Chief Mark Iype. If you’re reading this on the web, or it was forwarded to you from someone else, you can sign up for it and all Globe newsletters here.
Wendy Cox