Kenney kick-starts legal fight against controversial Bill C-69
Alberta justifies move as being about respecting ‘fundamental law of the land’
OTTAWA Alberta Premier Jason Kenney is launching his promised legal challenge against the federal government’s contentious environmental assessment bill, marking the latest complication for Prime Minister Justin Trudeau as he aims to balance opposing interests between the environment and the natural resource economy.
Kenney on Tuesday said the province had levelled a constitutional challenge against Bill C-69, which overhauled the regulatory regime that oversees applications for major projects like sea ports and pipelines. The new legislation officially came into force on Aug. 28.
The move follows through on a long-held threat by Kenney to legally oppose Trudeau’s C-69 legislation, which the premier on Tuesday called a “blunt and obvious effort to violate our exclusive constitutional right” in the province to freely develop its natural resources.
“This is not about jobs in Alberta, although that is critical,” Kenney said. “It’s about the rule of law, it’s about the dream of an economic union, it’s about respect for the fundamental law of the land, the constitution of Canada.”
The bill was a central pillar of Trudeau’s so-called “grand bargain” that sought to appease voters both supportive and opposed to fossil fuel development, in part by approving major oil pipelines while also enforcing a national carbon tax. His difficult approach has drawn criticism from both industry and environmental groups.
Some First Nations communities have been critical of the federal government’s decision in 2018 to purchase the Trans Mountain pipeline, which the government effectively nationalized after its private-sector owner, Houston-based Kinder Morgan Inc., threatened to walk away from the project.
On the other side, oil and gas groups were critical of Bill C-69, arguing it threatened to snarl any major new application to build an oil pipeline.
Industry groups earlier this year proposed more than 100 amendments to Bill C-69, which would have amounted to a sweeping restructuring of the bill. Several Conservative and some Independent senators sought to have those amendments accepted by the House of Commons, but Environment Minister Catherine Mckenna ultimately rejected the majority of the proposed changes.
In an application for a judicial reference to the Court of Appeal of Alberta, filed on Monday, provincial justice minister Doug Schweitzer argued that policy-makers reached “beyond the legislative authority of the Parliament of Canada” in passing legislation under C-69.
Kenney defended the decision as a purely constitutional matter.
In a testimony that tapped into deepening separation sentiments in Alberta, Kenney earlier this year testified against C-69 in a Senate committee hearing, in which he threatened to take the “extraordinary measure” of fighting the bill on constitutional grounds. Kenney then cited recent polls that showed more Albertans than ever sympathized with efforts to separate Alberta from the rest of the federation.
Observers on both sides of the political spectrum have argued that Trudeau’s Impact Assessment Act, as well as other regulatory regimes before it, are not in fact the source of the persistent pipeline bottleneck in Canada.
Dennis Mcconaghy, former executive at pipeline firm Transcanada Corp. (now TC Energy), instead places the blame at the feet of successive federal administrations, which have failed to establish clear guidelines for the government’s duty to consult with Indigenous Peoples on major projects.
“Parliament has chosen not to try to clarify what does that mean in practical terms — they’ve left that up to the courts,” said Mcconaghy, author of Breakdown: The Pipeline Debate and the Threat to Canada’s Future, released last week. “We’re in a very dysfunctional place right now.”
A number of industry groups, including the Mining Association of Canada, were largely supportive of the bill. The association, like others, blames much of the regulatory shortcomings in recent years on the Harper administration, who introduced a new regime in 2012 that narrowed the ability of some intervenors to take part in project hearings.