Here we go again. After spending years fighting a futile legal battle against the federal carbon tax, Jason Kenney’s UCP government has found another hill for its well-paid lawyers to die on.
This time it’s the federal Impact Assessment Act governing large projects, a piece of legislation Kenney and his allies dubbed the “no more pipelines law.” In a 4-1 decision, the Alberta Court of Appeal ruled the act is unconstitutional, mostly on the basis that it frustrated Alberta’s ongoing efforts to build pipelines in as many directions as possible.
The federal government immediately announced it would appeal, which means the province will once again head to the Supreme Court of Canada for a constitutional fight it will almost certainly lose. That won’t happen for at least a year, though, and probably at least two. In the meantime, conservative politicians and pundits are busy making hay over their home-field win.
Kenney described the decision as a “historic victory,” while Sonya Savage, the province’s energy minister, told the CBC’s Vassy Kapelos that “this is the biggest constitutional win in Alberta’s history.”
This is a bit like pretending you’ve won a football game because you scored a touchdown in the first quarter, and it ignores the fact there are far bigger actual wins in Alberta’s history. Chief among those is the 1982 Supreme Court decision that ruled Ottawa couldn’t tax provincially owned oil and gas wells, which paved the way for a massive revision of the hated National Energy Program. Given its relentless commitment to hating all things Trudeau, you’d think the Kenney government would remember this one.
When it comes to misreading the meaning of this decision, Environment and Parks Minister Jason Nixon took the cake when he suggested it meant the Impact Assessment Act could no longer be used in Alberta. As Globe and Mail deputy national editor James Keller noted: “The Alberta government appears to be under the mistaken impression that the court’s opinion today is binding and takes effect immediately.”
But if Kenney and his ministers are still a bit fuzzy on the legal dimensions here, they’re crystal clear when it comes to the political aspects.
As with the carbon tax reference case, they get to spend months building their argument in the court of public opinion — where pesky things like facts and evidence are far less important. You can be certain they will use this decision to paint a picture of a federal government that’s out to get Alberta and, more specifically, anyone who works in its oil and gas industry.
Postmedia columnist David Staples answered the call with a predictably overwrought piece suggesting the decision would “save Canada” — if the federal government let it stand. “The federal overreach in this policy has been so excessive and dangerous,” he wrote, “it’s made me question if Alberta can survive within Canada.”
This is, to be clear, the same Canada that bought and is building the first new pipeline to tidewater in a generation. This is the same Canada that spent more money on COVID-19 supports in Alberta than in any other province and invested $1.7 billion to help oil and gas companies clean up the old wells they keep leaving behind. This is also the same Canada that has so far refused to crack down on Alberta’s disproportionately large contributions to the national climate debt.
Opinion: After years fighting a futile legal battle against the federal carbon tax, Jason Kenney’s UCP government has found another hill for its well-paid lawyers to die on, writes columnist @maxfawcett.
Implicit in Staples’ piece is the threat, widely repeated among both separatists and those who play footsie with them, that if Alberta isn’t allowed to build all the pipelines and other oil and gas infrastructure it pleases, it would seriously consider leaving Confederation. This would be about as dumb as pouring your life savings into crypto a few weeks ago on the advice of a career politician whose retirement is already fully funded by taxpayers.
But when you’re as desperate for a political win as Kenney and the UCP are these days, you’ll take a lot of inadvisable gambles. Never mind the fact that, as University of Calgary law professor Martin Olszynski wrote, much of the legal opinion in question hinges on a straw man — the notion that there are projects that don’t require federal permits but are still being subjected to the Impact Assessment Act. “To the best of my knowledge,” he tweeted, “there is not a single project on the registry like this.”
Kenney and his colleagues don’t seem to have considered the possibility that if Alberta is given autonomy over decisions related to natural resources, provinces like British Columbia and Quebec would be, too — including pipelines traversing their borders. If anything, this decision, if upheld, would do more harm to his desire to see pipelines built than anything the federal government could contemplate.
All of this bravado and bluster over the Alberta Court of Appeal decision also ignores the reality, one that’s been obvious for years now — that government regulations like the former Bill C-69 aren’t what’s standing in the way of the sorts of new pipelines people like Kenney want to see built. Instead, it’s the growing concerns about climate change and greenhouse gas emissions, both from state actors like the Biden administration and shareholders who don’t want to invest in assets that could be stranded by more stringent climate policies.
No matter, though. The facts of this case are far less important than the politics that surround it, unfortunately. Those will only get more divisive and destructive as Kenney and his party try to paper over the divisions in their movement and prepare for a provincial election in Alberta.
By the time this decision gets overturned by the Supreme Court, the damage to Confederation and our sense of national unity may already be done.