Environmentalist lawyers back Liberal plan to fix unconstitutional 'no more pipelines' act with minor tweaks

‘While this act in some ways oversteps Parliament’s authority, there is broad federal authority to conduct environmental assessments’

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OTTAWA – Lawyers working for environmental groups agree with the Liberal government’s position that it need only tweak the contentious Impact Assessment Act, despite the Supreme Court ruling on Friday that the act violated the Constitution by overstepping federal jurisdiction.

“The court has been pretty clear that, while this act in some ways oversteps Parliament’s authority, there is broad federal authority to conduct environmental assessments,” said Anna Johnston, a lawyer with the advocacy group West Coast Environmental Law.

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The Alberta government brought a reference case to the court over the law, which critics believed would spell the end of all major project approvals and so dubbed it the “no more pipelines” act. The law attempted to significantly widen Ottawa’s scope for assessing major projects such as pipelines and power plants, including considerations of downstream emissions, climate targets, gender impacts, and Indigenous traditional knowledge.

In a 5-2 decision, the Supreme Court upheld the Alberta Court of Appeal’s finding that the law violated the Constitution by expanding beyond the federal government’s powers.

“Environmental protection remains one of today’s most pressing challenges, and Parliament has the power to enact a scheme of environmental assessment to meet this challenge, but Parliament also has the duty to act within the enduring division of powers framework laid out in the Constitution,” Chief Justice Richard Wagner wrote in the majority decision.

Ottawa has had an environmental assessment process for decades, but the Liberals broadened the sorts of projects that could be captured by federal assessment. Under the law as written, Ottawa could weigh in on projects even if they were entirely within provincial boundaries if the federal government deemed that the projects would have broader impacts beyond the province.

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Alberta Premier Danielle Smith said Friday the ruling should be a wake-up call to the Liberals that they overstepped and they should curb the law.

“We have the exclusive jurisdiction over natural resource development and the exclusive jurisdiction over electricity development, and they should make sure that they honour that,” she said.

Smith said she accepts that projects like pipelines and power lines that cross provincial boundaries are subject to federal rules, but she said mines and major projects inside her province are her government’s purview.

“The court ruling is pretty clear … We have the ability to approve projects, and we’re going to approve them,” she said Friday after the Supreme Court’s decision was released.

Federal Natural Resources Minister Jonathan Wilkinson said he saw the need for only small changes in the law.

“The concerns that are raised by the Supreme Court… can be dealt with in a relatively surgical way,” he said Friday.

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He said he is confident that the government can make quick changes so important projects like critical-mineral mines can get underway.

“We need to ensure that there is clarity around some of these things and so it is in everybody’s interest that we act expeditiously,” he added.

Lisa Baiton, president and CEO, of the Canadian Association of Petroleum Producers, said she hopes both sides can work together to resolve the dispute.

“Regulatory certainty and efficiency are key to facilitating natural resources projects that are in the interests of Canada,” she said in an email. “In the spirit of the Court’s call for cooperation, CAPP looks forward to collaborating with both the federal and provincial governments to ensure that projects in the national interest — those reinforcing energy security, providing lower emissions energy, and maintaining affordability to Canadians — will proceed in a timely manner.”

David Wright, an associate law professor at the University of Calgary and part of the legal team for the Canadian Association of Physicians for the Environment, which intervened in the case because it supported the law, said the court definitely ruled that the government should narrow its scope.

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“The federal basis for assessment, especially in the decision-making phase, is narrower than it was on Friday morning before this (decision) was released,” he said.

But he said the problems could be addressed with relatively small changes to the law, clearer definitions in some cases, and assessments that more clearly focus on federal areas of responsibility like waterways and Indigenous issues.

He said large projects tend to intersect with issues of federal jurisdiction in most cases, even if they are within provincial boundaries.

Johnston of West Coast Environmental Law said she isn’t sure how the province and the federal government will work out their differences but said she hopes they can work together to prioritize environmental issues.

“It would be great if governments could stop jurisdictional bun-fighting and devote more time and energy toward addressing these major challenges and protecting Canadians,” she said.

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