On Thursday, the Alberta government announced that it has asked the Alberta Court of Appeal to provide an opinion on whether the newly amended federal Impact Assessment Act (IAA) is constitutional. The problem? The things that rendered much of the act unconstitutional, which had been pointed out by the Supreme Court last fall, were never addressed.
The flaw that tainted IAA 1.0 was one of jurisdictional blindness: the law didn’t keep the feds in their own lane, and instead gave Environment Minister Steven Guilbeault the ability to veto just about any infrastructure project he likes — even in-province pipelines and roads, as well as gravel pits and mines, which are all within provincial domain.
IAA 1.0 inserted a federal stake into these provincial projects by making Ottawa the master of any process that has the potential for “effects within federal jurisdiction” — that is, anything that could affect fisheries, migratory birds, Indigenous people, cross-border pollution, etc.
IAA 2.0 is about the same, but instead of mere “effects,” the legislation is now concerned with “non-negligible adverse changes” that a given project could cause within the same set of federal domains: fisheries, etc.
It sort of looks like the changes were cosmetic, so Alberta, naturally, is frustrated with Ottawa.
“They rely on vague new terms like ‘not negligible adverse change,’ but these are not defined. And they, in my view, potentially justify even further federal interference altogether,” said Justice Minister Mickey Amery in an interview Thursday. “This puts major projects like oilsands developments, major highways within our borders, power plants (and) other things truly at risk.”
“When a government receives direction from a court — in this case, the highest court in the land — and simply makes inconsequential amendments to its definitions … it is a government that disregards the rule of law.”
Now, IAA 2.0 does include new provisions that permit a provincial assessment process to be used in lieu of the onerous federal one, which in theory restores some jurisdictional respect to the law. But not quite — a substantial checklist of requirements must be met in order for a provincial assessment to be made, and the minister is also free to jump in and block such a process from kicking in.
Which, Amery says, is yet another problem: “When you have a discretionary process that is led by an activist environmental minister, it provides for no certainty, and it provides for no stability.”
The attitude concerns are entirely valid. When the Supreme Court initially ruled that IAA 1.0 was unconstitutional, Guilbeault announced that he would “comply with the spirit” of the decision, and promised that no change to the law would be made that would actually affect its overall outcomes. In other words, he seemed to say that he didn’t actually plan on listening to the court when he got around to amending the act. Indeed, it seems he didn’t.
Then, in October, the Alberta government asked the feds to make a number of changes to IAA 2.0 to hopefully remedy its shortfalls. The province wanted the ability to “fully substitute” its own environmental assessment in exchange for the federal process. It wanted the better-defined threshold of “significant adverse effects” to trigger the federal process. And it wanted less ministerial discretion — that is, less capacity for Guilbeault to throw a wrench into the mix.
In response, the feds waved away the Alberta government, with Guilbeault saying Premier Danielle Smith was merely talking tough to keep her party membership happy. Ottawa further accused the Alberta government of not co-operating in suggesting changes.
It’s getting to be a very protracted fight. About five years have already been spent arguing over this jurisdiction-trampling law, and within that time, even the Supreme Court has agreed that the feds went too far. And yet, nothing has really changed. Everyone’s in about the same position as they were in 2019. Meanwhile, Amery says that multiple companies have expressed “serious concerns” with their desire to build under the existing federal assessment scheme.
It’s at least good news that the province is willing to keep at this long and arduous fight, and in a way that’s consistent with the rule of law. Alberta isn’t flatly refusing to comply with the law over a jurisdictional dispute, unlike, say Saskatchewan in its carbon tax scuffle with the feds. Nor is the provincial government being hypocritical — unlike Ottawa and the Liberals, who shame Saskatchewan for flatly refusing to comply with the law, while ignoring court guidance themselves.
By asking this reference question — and going back through the courts a second time — the province is behaving like the adult in the room.
National Post