It was a silly place to take a stand, and a silly stand to take. I realize the Canadian Constitution would be a strange object even without the Supreme Court’s “living tree” licence to print principles then ignore them. But even a federation less centralized than ours, and less incoherent, assigns the national government power over things like defence, money, weights and measures, internal trade barriers, and so forth. As it must, or you don’t have a country.
If a major matter crosses provincial boundaries, let alone national ones, it comes under the jurisdiction of the national government. Including infrastructure projects from highways to seaways to pipelines. And there’s no question that in theory environmental problems can fall into this category, like air pollution or global warming, or fail to and remain local, like a garbage dump or waste disposal site.
The real question is whether man-made climate change is a major problem. But not to the court, whose concern was federal jurisdiction.
Nor is it surprising that the court’s ruling was about that aspect of the act rather than its goals or assumptions. As the majority wrote, Parliament certainly could empower regulators to consider the “effects within federal jurisdiction” of various projects, but instead the act “grants the decision maker a practically untrammelled power to regulate projects qua projects, regardless of whether Parliament has jurisdiction to regulate a given physical activity in its entirety.”
It’s a bit rich for the court to object to federal bureaucrats arrogating the right to judge things on their supposed cosmic awareness of social merits, given that former Chief Justice McLachlin characteristically deigned to inform us that “My job is simply to listen to what the parties have to say, and to do my best to understand the position, the ramifications of deciding one way or the other, to think about what’s best for Canadian society on this particular problem that’s before us, and give it my best judgment.”
What’s “best for Canadian society” seen from the august heights of the bench is not constrained by the structure of federalism, the wording of the law, or individual rights, now is it? But I digress.
The point is, the court didn’t say the feds couldn’t regulate projects based on their impact on matters of federal concern, or that some environmental issues are not matters of federal concern. It just struck down the sections of the act that ignored those points. So if it’s necessary to ban pipelines to save us all from the sky bursting into flames, the federal government unquestionably has the power to do it… if anyone remembers how to draft a bill.
That Ottawa can’t empower bureaucrats to ban anything they want any time they want for any reason they want won’t save pipelines, the oilsands, or national unity. If “climate breakdown” is the crisis Greta Thunberg and Justin Trudeau claim, the federal government can enact drastic anti-hydrocarbon measures, and you won’t get pipelines built by saying sure, oil is killing the planet, but nobody can stop us nyeah nyeah. You’ll just convince people you’re an imbecile.
This act will be back, and major pipelines will remain trapped in a regulatory maze that contains no cheese, unless and until Alberta politicians and others haul down the white flag and dispute the underlying premise that man-made climate change is an existential international crisis. Our Supreme Court won’t do it for them.
