The Alberta Court of Appeal gets it wrong — again

In a scathing, but non-binding opinion released on May 10, a majority of justices on an Alberta Court of Appeal panel held that the federal Impact Assessment Act is unconstitutional.

We disagree.

The Alberta court’s opinion is no surprise to anyone familiar with judicial consideration of the Greenhouse Gas Pollution Pricing Act. Ontario and Saskatchewan appeal courts both upheld the federal carbon tax, as did the Supreme Court of Canada; the Alberta Court of Appeal was the sole outlier in claiming the climate law was outside federal constitutional authority.

The Impact Assessment Act is on a similar trajectory. Little over an hour after the Alberta court released its opinion, Environment Minister Steven Guilbeault and Justice Minister David Lametti announced Canada’s intention to appeal it to the Supreme Court.

As we argued before the Alberta court, the Impact Assessment Act is reasonable, justified and falls squarely within federal jurisdiction. The appeal has every chance of success in the Supreme Court.

This case matters because it will confirm the extent to which federal authorities can inform themselves about the potential impacts, risks and benefits of projects that might harm the environment, climate or human well-being, or impact Indigenous rights.

Impact assessment is a “look before you leap” law, an important tool for considering the climate, biodiversity and health effects of projects before they are approved. It is also the best way for the public to have a say in projects that affect them, as well as an important process through which the free, prior and informed consent of Indigenous peoples may be obtained.

The Alberta Court of Appeal clearly does not see it that way, referring to the act as a “classic example of legislative creep” that would grossly upset the constitutional division of powers and place an “economic chokehold” on the provinces.

With respect to the court, these arguments don’t hold water. For starters, the federal government has been assessing projects’ impacts since the 1970s, and in 1992, a majority of the Supreme Court upheld Canada’s earliest environmental assessment process as a logical tool for gathering information in support of environmental decisions.

The Impact Assessment Act does expand the factors to be considered to include all positive and negative environmental, social, economic and health effects, as well as impacts on Indigenous rights. That is simply sound decision-making, not the jurisdictional overreach the Alberta Court of Appeal claims. Apparently, the court would prefer the federal government put blinkers on when considering the potential harms of development projects.

A court-imposed stop to federal efforts to protect their health and well-being will not be welcomed by Canadians, nor is it supported by Supreme Court decisions. There is ample case law supporting the federal government’s ability to inform itself of the effects and benefits of proposed projects before deciding whether to allow — or not — impacts within its jurisdiction to occur.

The Alberta court’s opinion also perpetuates the myth that this law — known as Bill C-69 prior to enactment — will stop all development in its tracks. In fact, federal impact assessment has led to the rejection of less than a handful of development projects over three decades. The claim also ignores the fact that the Impact Assessment Act applies to roughly a dozen projects a year across Canada. Compare that to the thousands of projects and activities assessed and approved under the law upheld by the Supreme Court of Canada in 1992.

The notion that the Impact Assessment Act is an economic chokehold as claimed by the Alberta Court of Appeal is simply unsupported by facts.

Impact assessment is nothing more than smart decision-making. In this age of the twin climate and biodiversity crises, and of the increasing recognition of the need to respect and uphold Indigenous rights and authority, the act is a more important tool than ever.

We are confident the Supreme Court will agree.

Anna Johnston is a West Coast Environmental Law staff lawyer and counsel to Nature Canada in the Impact Assessment Act reference. Stephen Hazell is emeritus counsel to Nature Canada.