Alberta Court’s Overturning of Liberals’ Environmental Impact Law Marks ‘Principled Approach’ to Federalism: Law Prof

Pro-pipeline supporters rally outside a public hearing of the Senate Committee on Energy, the Environment and Natural Resources regarding Bill C-69, in Calgary, Alta., on April 9, 2019. The Canadian Press/Jeff McIntosh

The recent ruling by the Alberta Court of Appeal that the federal government’s Impact Assessment Act (IAA) is unconstitutional may show that the court has a “principled approach” toward federalism that’s more consistent with earlier jurisprudence, says a constitutional law expert.

“Other courts are approaching federalism in Canada a little bit differently today, and the Alberta Court of Appeal may have a different approach than some other courts,” Dwight Newman, a law professor at the University of Saskatchewan, said at a webinar hosted by the Macdonald-Laurier Institute on May 26.

“I wouldn’t describe it so much in terms of the Alberta Court of Appeal standing for provincial rights, so much as the Alberta Court of Appeal standing for a very principled approach to federalism in line with a lot of prior jurisprudence.”

The court ruling on May 10 said that the federal government shouldn’t override the Constitution and the federal system through laws such as the IAA. The act allows Ottawa to measure the environment impacts of intra-provincial pipeline and other energy development projects such that the federal government essentially has veto power.

The IAA is part of Bill C-69, which received royal assent in June 2019. Detractors like Alberta Premier Jason Kenney had dubbed it the “No More Pipelines Bill.”

Newman said the court’s ruling is a “big division of powers decision” between federal and provincial jurisdictions that came out strongly in favour of the province.

He said the reasonings will be further debated, and one involves the court’s argument that the IAA is the federal government’s attempt to regulate every resource development project, including those entirely within a single province’s jurisdiction. In particular, the court made reference to Section 92A, an amendment to the Constitution that says natural resource ownership, development, and management are within the jurisdiction of the provinces.

The panellists also drew reference from another Alberta Court of Appeal’s decision on the federal carbon tax.

In February 2020, the court ruled that the Liberal government’s carbon tax was unconstitutional, though the Supreme Court of Canada ultimately struck down the decision in favour of the government.

However, Newman noted that while he finds it a smart decision for the Alberta government to refer both the carbon tax case and the IAA case to the Alberta Court of Appeal, it doesn’t mean the court is biased in protecting the people in the province, but rather it is “standing up for legal principle.”

“The Alberta Court of Appeal has done that in these two decisions as best it sees it,” he said.

The federal government is appealing the Alberta Court of Appeal’s decision to the Supreme Court.

Alienation of Western Canada

Several panellists at the webinar discussed how the IAA has increased Western Canada’s frustration with Ottawa intervening in issues under intra-provincial jurisdiction.

Ken Coates, Canada Research Chair in Regional Innovation at the University of Saskatchewan and an MLI distinguished fellow, said that following the defeat of former Conservative prime minister Stephen Harper, there has been a slowdown in the approval of pipeline projects and more policy obstacles for energy development, including Bill C-69.

“The West was really angry about that. You have this sort of net-zero objective where people in the West are always looking to Ottawa and saying, ‘When are they coming at us?’” Coates said.

“These are all part of a piece where Western Canada has been increasingly frustrated with Confederation.”

Heather Exner-Pirot, an MLI senior fellow, said the issue also calls for a return of the Confederation’s division of power between the provinces and the feds, as “there’s a sense that Ottawa is encroaching more and more [on Western Canada] and trying to centralize things.”

“We’re a diverse country of different economic interests, different cultural interests, and so trying to make us all fit the mould ... is a recipe for disaster. And we’re seeing the polarization, we’re seeing the alienation, and we’re seeing the opposition to that,” Exner-Pirot said.

“A lot of Canada’s polarization issues would be addressed if the federal government stuck to federal ... powers and the provinces stuck to their powers.”

Noé Chartier contributed to this article.