Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1480511
18 www.lexpert.ca Feature creating, essentially, a federal minimum, but they were not going further than they had to, to establish that minimum," says Duncanson. "ey still gave the provinces significant flexibility in controlling their own economy, within their province, within that framework." "e Impact Assessment Act, arguably, goes further because it does give the federal government the ability to veto any devel- opment in the country that they don't like, that doesn't fit within their vision." at was the view of the Alberta Court of Appeal's majority, he says, that the Act is unconstitutional because it effectively takes away the province's authority to decide how to develop its natural resources and its economy. "ere really are two schools of thought on this," says Duncanson. While he says there are strong arguments on both sides, Duncanson adds that the issue comes down to how the feds use the Act, whether they use it to "effectively control how prov- inces are developing." "It does fit within this broader discus- sion of who gets to make these decisions about how we move forward, how we grow our economies – hopefully, in a way that also complies with Canada's climate change obligations." Matti Lemmens, a commercial litigator and leader of the environmental group in Borden Ladner Gervais LLP's Calgary office, notes that Alberta's concerns with the Impact Assessment Act included how its application could affect solar, wind, and other renewable projects. e majority reasons in Re Impact Assessment Act state: "While some may believe the IAA's primary target is fossil fuel projects, no province should assume that intra-provincial highways or light rail transit systems or flood control or wind farms or solar farms or any of the innu- merable intra-provincial activities a prov- ince may decide are needed for its citizens would be exempt from the IAA. ey would not be." Kimberly Howard, a partner in McCarthy Tétrault's energ y and infra- structure group in Calgary, says the Impact Assessment Act and Greenhouse Gas Pollution Pricing Act litigation does not signify a trend of increasing jurisdictional tension. Instead, she says it shows a neces- sary process of working out how to regu- late new and pressing areas. "We are needing to regulate in areas that, potentially, weren't thought of before," she says. "is back and forth between the provinces and the Supreme Court, and these federal debates, I think, are an important part of how we legislate and govern." ese cases represent "an important dialogue that needs to happen" as Canada and the provinces evaluate how to regu- late complex and overlapping areas, says Howard. "I don't view these as huge polit- ical footballs. I think they should just be the jurisdictional and constitutional debate that needs to happen as part of our legislative and judicial systems." FEDERAL ENVIRONMENTAL POLICY PRODUCES JURISDICTIONAL DISPUTE In Reference re Impact Assessment Act, 2022 ABCA 165, the lieutenant governor in council asked for the Alberta Court of Appeal's opinion on whether the federal Impact Assessment Act is unconstitutional and whether it provides powers beyond Parliament's legislative authority. The Alberta Court of Appeal found that it did. The feds have asked the SCC to take up the question.