Decision on Federal Impact Assessment Act has potential to effect Peace region resource projects

EDMONTON, A.B. – The Alberta Court of Appeal determined on Tuesday, May 10th, that the federal government’s environmental impact law, called the Impact Assessment Act (IAA), infringes on provincial powers and is unconstitutional.

Though originally challenged in Alberta, the opinion–if it is upheld by the Supreme Court of Canada after the federal government’s intended appeal–may require changes to the act that will improve the outlook of major resource projects in all provinces, including B.C.

The act, passed by parliament and subsequently given royal assent in 2019, lists activities that begin an impact review. The review gives the federal government the ability to consider the effects of new resource projects on a range of environmental and social issues, including climate change.

The majority decision called the act a “trojan horse” that extends the federal government’s jurisdiction past the limits set in the constitution. 

When the IAA was passed into federal law by parliament in 2019, it added another level to the approval process required for natural resource projects, according to Peace Region MLA Dan Davies.

“We’ve already seen our resource companies pulling back. It’s put on a thick layer of permitting that British Columbia already had,” he said.

Section 92 of the constitution enshrines each province’s right to explore, develop, and manage non-renewable natural resources within its borders.

“It’s an overreach of the federal government in something that is provincial jurisdiction,” Davies said.

Bob Zimmer, MP for Prince George-Peace River- Northern Rockies, agreed.

“Ultimately, provinces should be deciding how they want to develop our natural resources and get them to market.”

If the Supreme Court of Canada agrees that the act infringes on the province’s right to do so, it will be up to parliament to change the act to properly respect provincial jurisdiction. 

Where passing the act spelt trouble for provincial powers and new natural resource projects combined, the decision may require changes to the act if upheld.

This may insulate intraprovincial resource projects from federal interference. Requiring approval solely from the province may also make such projects more predictable.

Zimmer said that there was “no question” about allowing the industry to flourish: “instead of turning our resource capacity down, we should be turning it up and responding to needs around the world.”

The need he sees Canada’s oil and gas industry filling is the remaining worldwide demand for natural resources from sources that are responsible from both human rights and environmental perspectives. This ability is hampered by the IAA and other regulations like it.

“At a time when the world is crying for natural resources from their allies, Canada should be at the forefront of providing those resources from a safe source,” Zimmer said.

Currently, as a reference question and not a case before the court, the court’s decision is not legally binding and does not form a precedent negating the act itself, either in Alberta or otherwise.

In a dissenting opinion, Justice Sheila Greckol said the IAA is within the federal government’s power because it recognizes that some effects of resource management become national issues that require national action. The climate crisis is one such effect. 

“The complexities and the urgency of the climate crisis call for co-operative interlocking environmental protection regimes among multiple jurisdictions,” Greckol wrote.

Issues of national importance and interprovincial undertakings (including pipelines between provinces and territories and climate change focused regulations, among others) fall under federal jurisdiction because they interest and effect the nation as a whole.

The peace, order, and good government clause, in which residual powers of national importance belong to the federal government, has also played a role in environmental regulations. This was the case in the Greenhouse Gas Pollution Pricing reference in 2018.

After the decision, Prime Minister Justin Trudeau, speaking in the House of Commons, announced the federal government’s intent to appeal the decision. He said that the act is an effort to fix a “broken system and restore public trust in how decisions about major projects are made.”

With files from The Canadian Press

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