Environmental legislation quashed
In what Premier Jason Kenney called a “historic victory,” Alberta's top court shot down a key piece of the Liberal government's environmental legislation, calling it a “clear and present danger” to Canada's constitutional order.
In 2019, Prime Minister Justin Trudeau's government passed Bill C-69, legislation that overhauled the approvals process for major infrastructure projects in Canada, and gave Ottawa the power to consider the effect of resource projects on environmental and social issues, including climate change.
At the time, the oil and gas sector — worth billions to the economies of Alberta and Canada — said the legislation would hamstring industry. The legislation, along with the companion Bill C-48 — which formalized a tanker ban off the northwestern B.C. coast — spawned protests across the west, including a protest convoy that drove from Red Deer to Ottawa.
Dubbed the “no more pipelines law” by Kenney's United Conservatives, the Alberta government went to court in September 2019, seeking to have the legislation — officially the Impact Assessment Act — declared unconstitutional in what's known as a reference case. On Tuesday, the court did so, calling the legislation “a classic example of legislative creep” as Ottawa used the cover of environmentalism to expand its powers. While it noted that climate change is an “existential threat,” the bill was itself a threat to Canadian federalism and the division of powers.
“If upheld, the (legislation) would permanently alter the division of powers and forever place provincial governments in an economic chokehold controlled by the federal government,” the majority of a five-justice panel wrote.
The Liberal government indicated it was going to appeal. A joint statement from Environment Minister Steven Guilbeault and Justice Minister David Lametti said the bill “put in place better rules for major projects that restore trust, protect the environment, advance reconciliation, and ensure good projects can move forward in a timely way so we can grow our economy and create good jobs.”
Three justices joined the majority opinion in full, which was written by Chief Justice Catherine Fraser. One justice agreed with the exception of one section. One justice, Sheila Greckol, dissented.
The decision is not binding and the legislation remains in effect, but it represents a victory for Kenney's government, which has long condemned federal environmental legislation. A similar legal attempt to find the Liberals' carbon tax declared unconstitutional failed in 2021, when the Supreme Court of Canada sided with the federal government.
Kenney, speaking at an unrelated announcement on Tuesday, couldn't keep a grin from his face as he spoke about the decision, saying it struck down a law that constituted a “massive overreach” into Alberta's constitutional powers.
“This is a huge win for the people of Alberta, for their right, responsibly, to develop their resources,” said Kenney.
The justices wrote that federalism and the division of powers are “not an academic matter” in western Canada, where, in the early days of Confederation, the region was beggared for the benefit of central Canada.
The legislation, the justices wrote, takes a “wrecking ball” to the constitutional rights of Alberta and Saskatchewan to develop their own resources.
“To deprive Alberta and Saskatchewan, which together have the vast majority of oil and gas reserves in this country, of their constitutional right to exploit these natural resources — especially while the federal government continues to permit the import of hundreds of millions of barrels of oil into Canada from other countries — is to reintroduce the very discrimination both provinces understood had ended, if not in 1930, then certainly by 1982,” the justices wrote.
Michelle Rempel Garner, a Calgary Conservative MP, said Alberta “deserves recompense” for economic damage done by the Liberals' environmental agenda.
“Justin Trudeau must respect the ruling of the independent judiciary by not seeking further appeals, recognize this legislation as unconstitutional and immediately repeal Bill C-69. Enough is enough,” said Rempel Garner in a statement.
In question period, Candice Bergen, the interim Conservative leader, asked Trudeau if the legislation would now be repealed and “let Canadians get back to work, build pipelines and sell our energy to the world.”
Trudeau said the bill “delivered on an important promise we made to Canadians.”
“The previous Conservative government gutted environmental protections,” Trudeau said. “We will be appealing this decision.”
The Alberta judges said that Parliament is welcome to legislate on the environment, but that it must remain within constitutional lines, and, if it wishes to go outside of those established boundaries, “it should make the case for an increase in its jurisdiction to the Canadian public.”