Alberta will challenge a federal veto power over provincial natural-resource projects at the Supreme Court of Canada on Tuesday and Wednesday – but the court will be missing its strongest voice for provincial rights because of a disciplinary matter.
Justice Russell Brown has been on paid leave from his $403,300 job for nearly two months, after a violent altercation at an Arizona hotel with a former U.S. Marine. Chief Justice Richard Wagner says he placed the 57-year-old on leave Feb. 1 after being informed by the Canadian Judicial Council of a complaint about the altercation.
A federal veto is built into the 2019 Impact Assessment Act, a sweeping law by which Ottawa regulates development with effects that it says fall into federal jurisdiction. That can include effects on Indigenous peoples and their lands, fish, birds and climate change.
Alberta asked the province’s Court of Appeal soon after the law took effect whether it was an overreach into its jurisdiction. The province said the impact law covers virtually all sectors of its economy, including oil and gas, and that Alberta has its own review processes to balance environmental effects and economic benefits. The appeal court ruled 4-1 that the federal legislation was unlawful, calling it a “profound invasion,” and an “economic chokehold.” Ottawa appealed to the Supreme Court.
In legal terms, the case is about federalism, the division of powers between Ottawa and the provinces set down in Canada’s founding 1867 Constitution. (That document does not specify who is responsible for the environment.) In ordinary parlance, it’s about what holds the country together – or drives it apart.
A near-record 29 intervenors will present arguments at the hearing. That includes seven provincial governments outside of Alberta, largely on Alberta’s side, and seven Indigenous groups, including a coalition of 130 First Nations, largely in support of Ottawa. Environmental and business groups will also be represented.
Justice Brown was raised in the northern B.C. community of Burns Lake, but was a law professor and judge in Alberta before joining the Supreme Court in 2015, an appointee of Conservative prime minister Stephen Harper.
Justice Brown has made himself exceptionally clear that he’s a provincial-rights advocate.
Early in a 2020 hearing on the lawfulness of a federal carbon tax, he said he simply doesn’t believe in co-operative federalism – long a buzzword in legal and political circles, at least in central Canada, describing the sharing of legislative power.
“Federalism isn’t co-operative,” he said from the bench. “If you want to work out an arrangement, that’s fine. Federalism just is. It’s federalism. Whether it’s co-operative or unco-operative, I don’t really care.”
In his dissent from the court’s 6-3 ruling in that case, he was similarly blunt.
“It is apparently to be assumed that all important matters fall within federal jurisdiction,” he said, adding that the decision authored by Chief Justice Wagner, “rewrites the rules of Confederation.”
His absence increases the chance that a decision that goes against Alberta will simply create more hostility.
“There is a history of Alberta politicians resenting interference by the Ottawa-based, federally administered SCC,” Margot Young, a law professor from the University of British Columbia’s Allard School of Law, says. The case “is vulnerable to political criticism should the judgment go in favour of the federal government.”
Justice Brown’s absence in this week’s hearing will be deeply felt.
“He understands the Alberta perspective on federalism, and he understands it on a visceral level,” says Bruce Ryder, a professor at Osgoode Hall Law School.
Alberta, like Justice Brown, is not a believer in co-operative federalism, he said.
“It greatly troubles Alberta,” Prof. Ryder said, “because they see it as not so much co-operative as oppressive.”
The Supreme Court has strong traditions around regional diversity. By law, three of the nine judges on the full bench have to be from Quebec. By tradition, three are from Ontario, one from the Atlantic provinces and two from the Western provinces.
Justice Brown’s absence, says Prof. Ryder, “is unfortunate from the point of view of the court’s legitimacy. It’s important for the different parts of the country to feel that their voices are heard and understood by one of theirs, so to speak.”
The legal context and the political one are interwoven. Late last year, Alberta Premier Danielle Smith’s government passed a law to insulate the province from what it sees as federal intrusions. In 2001, the future Conservative prime minister Stephen Harper co-wrote a proposal to create a “firewall” around the province. Hostility between Alberta and the central government has deep roots.
The question now – with Justice Brown gone indefinitely – is who speaks for the provinces on the Supreme Court.