Environmental law gets top court’s ear
Provinces, including Ontario, argue federal legislation steps on their turf
It’s either a legitimate use of federal power to protect the environment, or a flagrant violation of provincial jurisdiction.
Now the Supreme Court of Canada will decide which of those diverging views applies to the federal government’s hotly contested revamp of Ottawa’s environmental assessment law, 2019’s Impact Assessment Act.
Its ultimate ruling will not only clarify the limits of federal authority when conducting environmental reviews. It could also impact Ottawa’s ability to intervene in controversial development proposals like Ontario’s Highway 413 or its plans to open portions of the Greenbelt to housing development.
The politically freighted legal battle landed at the Supreme Court for two days of hearings this week. The case is being heard after the federal government appealed last year’s ruling by Alberta’s top court, which declared the Impact Assessment Act unconstitutional because it violated the division of powers between Ottawa and the provinces.
At stake is the assessment regime that Prime Minister Justin Trudeau’s Liberal government took years to create in the face of ardent opposition from resource lobbyists, several provincial governments and federal Conservatives, who lampooned the law as the “No More Pipelines Act.”
Environmentalists defending the Impact Assessment Act alongside the federal government fear striking down the law would set a dangerous precedent that could pave the way to dismantling Ottawa’s longestablished role in protecting nature and animal species.
If that happens, “then we’ve completely eviscerated federal environmental powers … in the middle of climate and biodiversity crisis, when we need all levels of government to be doing everything in their power to protect the environment,” said Anna Johnston, a lawyer for West Coast Environmental law, an intervening party in the case.
Provinces opposing the law — including Ontario — argue it gives the federal government undue authority to review provincial “undertakings” like mines, highways, dams and more, and ultimately decide whether they can go ahead.
“When you look at this act and what this act actually does, it goes too far,” Ontario government lawyer Joshua Hunter told the Supreme Court on Wednesday.
As an example, he cited Ottawa’s decision to review Ontario’s proposal to build Highway 413 because it could impact species that fall under federal conservation law. “They said they’re regulating the frogs, but what they’re really doing is regulating the highway.”
Hunter also raised how federal Environment Minister Steven Guilbeault suggested this week that Ottawa could block some of the province’s plans to develop the Greenbelt because of effects on federal responsibilities, including protecting the nearby Rouge National Urban Park.
On Tuesday, when federal lawyer Christopher Rupar presented the federal case to uphold the law, Supreme Court justices peppered him with questions about the technicalities of the assessment regime, when it would apply and what criteria the government would use to determine whether a project is good to go.
The federal government argues the Alberta court that struck down the law ignored “principles of co-operative federalism” and areas of shared jurisdiction between different governments. It insists Ottawa has a legitimate role in reviewing projects that affect areas of federal responsibility, like fisheries, species at risk, Indigenous rights and cross-border pollution.
Malcolm Rowe, a Supreme Court justice from Newfoundland, bristled at perceived flaws in the federal argument. At times interrupting Rupar, Rowe called his reasoning “absurd.” He said the law allows the federal government to get its “hook in” to a given project that touches on federal jurisdiction, and then to review the entirety of that project on a broader range of criteria, from its impact on climate change to economic impacts and more.
“There’s a great slipperiness,” Rowe charged. “You’re in for one purpose, you’re in for every purpose.”
Dayna Anderson, another federal lawyer who addressed the court Tuesday, argued striking down the law as unconstitutional would “immunize” projects from federal review.
When you look at this act and what this act actually does, it goes too far.
JOSHUA HUNTER ONTARIO GOVERNMENT LAWYER