Supreme Court likely to rule federal impact law constitutional: expert

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The decision will be particularly helpful for all Canadians and potential project developers and foreign investors, said David Wright, a law professor at the University of Calgary who specializes in natural resources and environmental law.

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The Supreme Court of Canada is unlikely to agree with Alberta’s highest court on the Federal Impact Assessment Act, which critics have called a “no more pipelines” law, according to an expert.

Last week, the Alberta Court of Appeal ruled that the federal Environmental Impact Act, which allows the federal government to consider the impacts of new infrastructure or resource projects on issues such as climate change, was unconstitutional.

A majority of Alberta’s highest court found the decision unconstitutional, with only one dissenting opinion out of the five justices.

David Wright, a University of Calgary law professor who specializes in natural resources and environmental law, said that while Alberta’s highest court may believe it’s unconstitutional, it’s convinced that the Supreme Court is likely to uphold the law – that critics of the law say it is much more difficult to get pipeline projects approved in Canada.

“Legally, it is likely that this will be upheld by the Supreme Court of Canada. Politically, a federal election could change the sequence of events,” Wright said.

The legal expert pointed out that the ruling on the federal carbon tax saw the appeals court declare the tax unconstitutional, but once brought to the Supreme Court of Canada, it would be deemed legally valid.

“At the Supreme Court, it was indeed ruled constitutional by a majority of the court, and so just on a general level, this is, I think, likely to go down a similar path,” Wright said.

The law, formerly known as Bill C-69, received royal assent in 2019 and was known to the Conservative opposition at the time as the “no more pipelines” bill.

Alberta argued that the law could expand the scope of federal oversight on infrastructure matters, encroaching on areas of provincial jurisdiction.

The appeals court sided with the provincial government and argued that while climate change must be addressed, the environment is not just a federal jurisdiction and therefore has no the jurisdiction to regulate it.

Wright said the provincial court is “very concerned” with the notion of exclusive provincial jurisdiction and then adopts a narrow reading of federal jurisdiction.

“The law bends over backwards to respect provincial jurisdiction and minimize intrusion into provincial jurisdiction,” Wright said.

The law was carefully crafted to include checkpoints to guard against creeping federal jurisdiction, Wright said, and the federal agency overseeing the process can decide that no assessment is required for projects that have seemingly insignificant negative effects on areas of federal jurisdiction.

In the appeals court ruling, the majority justices described the law as an “existential threat” to the division of powers between the province and the federal government, and said the law places the provincial government in a ” economic strangulation” controlled by Ottawa. .

Legitimate concerns about the environment and climate change should not override provincial and federal divisions of power, the more than 400-page ruling reads.

“If the federal government believes otherwise, it should advocate for increased jurisdiction over the Canadian public.

The dissenting opinion, written by Justice Sheila Greckol, said the law is a valid use of constitutional authority.

“The complexity and urgency of the climate crisis calls for a cooperative entanglement [of] environmental protection regimes between multiple jurisdictions.

Greckol said it’s important not to “give credence to any sort of ‘Trojan horse’ metaphor being put forward by Alberta and Saskatchewan.”

“Comparing Canada to an invading foreign army deceptively breaching our walls of protection only fuels suspicion and pits one level of government against another,” Greckol wrote.

The decision, which is not binding, will be appealed to the Supreme Court of Canada, Prime Minister Justin Trudeau told the House of Commons.

Once the Supreme Court rules on the decision, it will still not be binding, Wright said, but if the court finds the law unconstitutional, the government will be under strong pressure to change the law.

“It would or almost certainly trigger a series of amendments by the federal government to the law to bring it into line with the constitutional parameters established by the Supreme Court,” Wright said.

The law impacts a range of infrastructure projects that will require federal impact assessments, including oil and gas facilities and fishing.

The appeal process to the Supreme Court of Canada will likely be an 18-24 month process, Wright said, with a hearing in a year and a decision to follow a year later.

“It could be a little longer, but it’s unlikely to be much faster,” Wright said.

The court’s decision will be particularly helpful for all Canadians and potential project developers and foreign investors, Wright said.

“These cases don’t come up very often. The opinion or decision of the Supreme Court of Canada on the constitutionality of the federal impact assessment [come around] once or twice a decade,” Wright said.

“While this is a little painful and may create some uncertainty and political friction in the short term, once we get an opinion from the Supreme Court of Canada, it will be extremely helpful for all Canadians and certainly for developers. of potential projects and foreign investors when published.


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