Supreme Court examining controversial environmental assessment law this week

The Supreme Court of Canada will look this week at whether the federal government overstepped its constitutional limits with its controversial environmental assessment legislation.

It's the next move — and the final legal level — in a reference case launched by the Alberta government to test if Ottawa's Impact Assessment Act (a.k.a. Bill C-69) is constitutional. 

The Impact Assessment Act allows Ottawa to consider the effects of new resource projects on environmental and social issues, including climate change. Alberta launched a challenge to the bill shortly after it was given royal assent in 2019. 

Critics say consultations on the bill were inadequate, that it tramples provincial jurisdiction and blocks new energy infrastructure. Supporters say it's a reasonable tool to address climate change and protect the environment from potential consequences of natural resource project development. 

Canada's highest court will examine the matter on Tuesday and Wednesday to settle whether the law is within Ottawa's power. The federal government appealed to the Supreme Court after Alberta's Court of Appeal deemed it unconstitutional last spring. 

In May, a majority decision from the province's court called the act a "breathtaking pre-emption of provincial authority" and a "wrecking ball" that upset the division of powers set out in the Constitution.

The Constitution gives provinces the power to develop their natural resources but is murkier when it comes to who regulates environmental matters.

All five justices said climate change must be addressed, but the majority opinion stated the federal government doesn't have unilateral power to regulate on environmental issues, nor should those concerns override the divisions of power. 

The dissenting justice said the law was constitutionally valid as it regulates things that fall in federal control. She also noted the importance of co-operation between governments on climate change. 

Courts' opinions on reference questions are not legally binding. The decision from the Court of Appeal did not strike down the legislation. 

Then-premier Jason Kenney called it a historic victory. Alberta's conservative government has often referred to it as the "no more pipelines act." 

Several provincial governments and other organizations are intervenors on this reference case. Saskatchewan, Ontario and First Nations groups, including the Indian Resource Council, support Alberta's position. 

"It creates a federal veto against exploration and production activities and it's not right," Stephen Buffalo, president of the Indian Resource Council, told CBC News. He noted Indigenous groups were not consulted when the bill was developed. 

"We want to ensure the environmental issues are protected but in the same sense they have to consult with the First Nations that are in this sector to make sure that our rights are protected and that we're possibly moving towards something that is even greater, which is an economic impact that can affect our communities."

Other groups, including environment and legal groups and additional First Nations, are in favour of Ottawa's argument.

"There are open legal questions in this area of the law," said David Wright, an associate professor at the University of Calgary's law school. "Think what you will about the political theatre and dynamics around this, in the long term, that kind of short-term political pain will pay off in terms of enhanced clarity in the law."

Wright is also co-counsel on this case for the Canadian Association of Physicians for the Environment, who are intervenors.

"Because they don't come along very often, when a case does come along, the decision is consequential and of great interest to the country," he said.

The federal government has maintained the law is on solid footing. 

"We are very confident that this is constitutional, that our position will be upheld," federal Natural Resources Minister Jonathan Wilkinson said last May. 

Environment Minister Steven Guilbeault declined to comment on Monday, saying the case is before the court. 

Premier Danielle Smith's office did not respond to a request for comment. On her weekly radio show Saturday, she lamented that Justice Russell Brown would not be involved. He has roots in Alberta and was strongly opposed to the federal carbon tax during that Supreme Court case. 

"It's just such a shame that he's not going to be around for this," she said. Brown is on leave pending an investigation into an Arizona altercation he was involved in. 

Alberta Justice Minister Tyler Shandro said in a statement Tuesday that the bill represents a threat to the long-term economic prosperity of the province.

"We want to grow investment in Alberta, not have it driven away by unbalanced, unpredictable new rules for major projects," he said.

Wright said he expects the Supreme Court's ruling to build on what it has said about climate change and the jurisdiction of governments when it comes to the environment, similar to what was seen in the carbon tax case. 

In that 2021 decision, the majority of Supreme Court judges said the federal government's carbon tax was constitutional because climate change is a large enough threat that it requires a national approach. 

The 6-3 decision found Ottawa can act under the Constitution's "peace, order and good government" clause, better known as POGG, allowing it to pass laws that address national concerns. 

Decisions from the courts on reference cases like this can often take upward of a year to be released.