Last month, the Supreme Court of Canada (“SCC”) ruled that the Impact Assessment Act, 2019 (“IAA”) is unconstitutional in part. The majority for the SCC held that while the federal government can define criteria for areas touching federal jurisdiction, they cannot do so for provincial areas. The majority’s primary area of focus was on the statutory element which enabled the feds to use the public interest to determine the entire project. Importantly, if a provincial component of the project (e.g., natural resources) was found to be against the public interest, the feds could veto it. The majority held that such a power violated the fundamental separation of powers per The Constitution Act, 1867 (“CA 1867”).
The dissent, however, noted that the environment is one of shared jurisdiction and therefore the concept of cooperative federalism should be respected. It ought not to be assumed right off the bat that the federal government intends to act unconstitutionally, which is normally the presumption that courts begin with when deciding on constitutional matters. The dissent particularly highlighted that provincial areas inherently touch federal jurisdiction and therefore its vagueness should be respected.
It seems odd that the majority ignored this line of reasoning used by the dissent. This is especially the case when considering Greenhouse in which greenhouse gasses’ (“GHG”) national impact put them under federal jurisdiction – per peace, order and good governance (s. 91 of CA 1867). Natural resources, certain commercial activities and similar provincial areas inherently emit GHGs, which would naturally enlarge the scope of federal jurisdiction. If the fossil fuel industry was effectively managed, then GHG emissions would be much lower – making federal involvement unnecessary.
Despite its puzzling nature, this ruling is understandable and does not really change anything. Maintaining the division of powers creates a sense of stability necessary for a green transition. Further, since areas of federal jurisdiction are often impacted by provincial areas, if the latter potentially touches the former, it is also grounds for federal interference. Really, all that is needed for the IAA to become constitutional is a few technical changes.
What this case did is illuminate one of the many obstacles to fighting climate change. This is in addition to the fossil fuel industry and provincial lobbyists deliberately killing industry as we have seen in Danielle Smith’s senseless renewable moratorium (risking over $33 billion), challenging positive change from Ottawa in the courts (despite bashing them for not doing enough) and undertaking misinformation campaigns falsely framing clean energy as the enemy of cheap electricity. These techniques create public uncertainty and outrage towards legitimate climate policies to favour legacy industry and provincial self-interest.
These enemies of reality (“EOR”) should realize that they are only destroying their own long-term interests. Sadly, this is why they are EOR. With respect to the IAA, big industry and the provinces childishly declared war against Ottawa rather than putting on their adult pants and pursuing cooperative federalism. We must remain on our guard. These EOR capitalize on sowing public distrust of clean energy to make us apathetic to fighting climate change. It is easier to kill an environmental policy when all you hear are negative statements.