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
www.lexpert.ca 17 He says that before the Alberta Court of Appeal's ruling on the Impact Assessment Act, the overlap for environmental juris- diction under the Constitution was "rela- tively stable and well known." However, he acknowledges that many would debate that point. e Impact Assessment Act ruling has "created some uncertainty," he says. While it may produce "a little bit of nuance about where the line is between provincial and federal jurisdiction," Langen does not expect the Impact Assessment Act litigation will ultimately produce a significant shi. "It's going to go to the Supreme Court, in all likelihood. In no way do I think it's ultimately going to materially change things for industry or the governments involved," he says. "I think that we certainly have more than a few years ahead of us of debate between the provinces and Feds in the courts on exactly where that line lies," says Langen. is is primarily because the issue holds a much more significant material impact for industries in the western provinces. "I think that debate is going to continue." But that debate creates uncertainty, he adds, because knowing what emissions rules apply and the cost of those emissions and taxes are "a critical component to industry's decision to invest in infrastructure." 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. According to four of the five judges on the panel, while climate change poses an "existential threat" to Canada, so does the Impact Assessment Act. e majority also found that the legislative scheme also presents a "clear and present danger" to the Constitution's division of powers, "and thus, to Canada itself," which is "pressing and consequential." Parliament enacted the Impact Assessment Act in 2019. Before project proponents and public authorities can execute a designated project – its accom- panying regulations lists the "designated projects" under its purview – they must complete an impact assessment. is assessment examines the project's envi- ronmental, health, social, economic, and sustainability impacts, as well as how it will affect Canada's climate change commit- ments and the "intersection of sex, gender and other identity factors," according to "Hold Your (Trojan) Horses: Alberta Court Finds Federal Impact Assessment Act Unconstitutional", written by Bernie Roth, Laura Estep, Dan Collins, and Laura McPhee of Dentons Canada LLP. e majority agreed with Alberta that Ottawa had exceeded its constitutional authority. e court found that the federal government nudged its way into the provincial domain in a manner that would disturb the Constitution Act, 1967's prescribed balance of legislative power. As a reference, the court's ruling is not binding. e federal government has asked the Supreme Court of Canada to take up the case. e SCC ruled on a similar dispute over federal-provincial jurisdiction in Reference re Greenhouse Gas Pollution Pricing Act just over a year before. As with Re Impact Assessment Act, the carbon tax ruling came to the SCC via split decisions at the courts of appeal. Ultimately, in a 6–3 deci- sion, the majority found the Greenhouse Gas Pollution Pricing Act constitutional. Parliament enacted the legislation in 2018 to incentivize reducing greenhouse gas emissions by setting a federal backstop for carbon pricing. e attorneys general of Saskatchewan, Alberta, and Ontario mounted constitutional challenges. e SCC's majority found that the national concern branch of peace, order, and good government gave Parliament jurisdiction to establish minimum national standards for carbon pricing. "e Supreme Court said the way that that legislation was structured was constitu- tional because the federal government was "I don't think we're done with the constitutional fight over emissions reduction." "I think that we certainly have more than a few years ahead of us of debate between the provinces and Feds in the courts on exactly where that [jurisdictional] line lies." Terri-Lee Oleniuk BLAKE CASSELS & GRAYDON LLP Dennis Langen STIKEMAN ELLIOTT