For those keeping score, the courts found Stephen Harper’s environmental review of industrial projects too weak, and now deem Justin Trudeau’s version too expansive. There is a lot to untangle.
The problem is rooted in basic facts. Canada is a federation. The provinces and Ottawa each have their specific constitutional powers. But in matters of the environment and industry, these powers intersect. Conflict ensues – and the only real lasting solution is, even if it currently appears unlikely, co-operation.
The latest bout was settled – somewhat – on Friday, when the Supreme Court issued a major decision written by Chief Justice Richard Wagner that ruled Ottawa had overstepped its constitutional bounds in the 2019 Impact Assessment Act. That law had increased federal oversight of proposed projects such as mines or pipelines, with a focus on climate change and Indigenous consultations.
The previous review regime, enacted under Mr. Harper in 2012, had been designed to speed projects through assessments to construction. But courts found the law lacked adequate rigour, most prominently in 2018 when federal approval of the Trans Mountain oil pipeline was quashed.
Alberta Premier Danielle Smith on Friday cheered the new decision but incorrectly claimed it meant Ottawa has no say in a project like an oil sands mine. The Supreme Court, in the past and again on Friday, makes clear Ottawa has a role in such reviews.
The federal Liberals are planning amendments to bring the law in line with the Supreme Court ruling. It will narrow the act but the Liberals, rightly so, still want to include an emphasis on climate. The details will matter.
It may seem there is a contradiction between Friday’s decision and the landmark 2021 ruling on the carbon tax, also written by Chief Justice Wagner. That ruling found Ottawa has the right to put a price on greenhouse gas emissions, on the basis climate is a national concern under the Constitution’s peace, order and good government clause.
But a key paragraph in Friday’s ruling indicated the same couldn’t be presumed in the Impact Assessment Act. In this case, the provinces’ jurisdiction over natural resources was a bigger factor. While Ottawa has the power to intervene in a proposed oil sands mine, on issues such as fisheries, its ability to invoke climate may be circumscribed.
Suncor is an example. It wants to expand its mining operations. Ottawa last year warned emissions would be too high. How the regulatory review will work, what it will consider, and who has the final say is unclear.
The tangled mess becomes more of a thicket when one considers the latest climate policy battles. Ottawa has tabled draft rules to reduce emissions in power generation. That is an area of provincial jurisdiction but Ottawa has constitutional rights through criminal law under the Canadian Environmental Protection Act. Then there’s the planned – but not yet announced – federal emissions cap on the oil and gas industry. After Friday, Ottawa will have to be extra careful in its approach.
What’s certain is all this stokes more uncertainty than clarity. If a company wants to build a critical minerals mine, a vast wind farm or a natural gas pipeline – all taking years of planning for a project that would be in service for decades, bolstering the economy – it surely is discouraging to watch these legal sagas play out.
What’s also certain is Canada needs to rapidly reduce emissions. Friday’s ruling effectively puts an added onus on Alberta and the provinces. Alberta says it aspires to net zero by 2050 but has been vague about how to get there. With the Supreme Court clarifying Ottawa’s ambit, Alberta must do more than oppose Ottawa. The Liberals, meanwhile, are chastened. One of their signature laws was exposed as sloppily written, like Mr. Harper’s was. Ottawa needs to figure out a framework that works.
It’s easy to predict more legal clashes ahead but federalism works best when it is co-operative. Chief Justice Wagner underscored that in his conclusion on Friday: Ottawa and the provinces should “exercise their respective powers over the environment harmoniously.” It sounds overly optimistic. Tangled messes do not portend harmony. But therein is the real lesson of Friday’s decision. Ottawa has to be a little less bossy, and the provinces need to step up their climate ambitions. Canada needs less fighting and more doing.