Introduction

The recent Supreme Court of Canada decision holding that parts of the federal Impact Assessment Act are ‘unconstitutional’ caused cheering in several provincial capitals and in the media.  However, there is really nothing to celebrate because, in practice, this decision won’t make much difference.  

The Court held parts of the law ‘unconstitutional’ because they infringed on provincial constitutional powers.  The applause for this finding was based on a popular misconception of what partly unconstitutional means.  It doesn’t mean that the entire law is invalid. Some parts of this law being unconstitutional may make little or no practical difference because many of the same proposed projects are captured by other, constitutionally valid parts.

This law is forward looking: it screens for numerous hypothetical potentially negative impacts, many of which may, after years of hearings, prove to be trivial, nonexistent, or outside of the proponent’s control. It does not require looking for or considering positive impacts — benefits — that may outweigh the negative impacts.

I have blogged about the evils of Canada’s Impact Assessment Act, (formerly titled Bill C-69), and testified before the Canadian Senate about it. You may wish to review these posts for a better understanding of why this is such a bad law, and why the provinces want to challenge it.   

Who Controls What?

The Court’s decision was based on the constitution’s separation of powers between the federal and provincial governments.  Jurisdiction over “the environment” is divided between the two levels of government.  However, the vast majority of the authority is federal. 

Ottawa has exclusive jurisdiction over proposed projects potentially affecting:

• navigable waters (almost any lake or river large enough to float a canoe),
• sea coast and inland fisheries (anything potentially impacting fish, lobsters, octopi, etc.)
• “works” connecting provinces, or beyond the boundaries of one province (such as an oil or gas pipeline for more than local distribution); and
• “works” within a province but declared by Canada to be to the advantage of Canada, or to more than one province.

On the provincial list of environment-related exclusive powers are only:

• natural resources; and
• matters of a merely local or private nature. 

Even this short provincial list will often trigger federal jurisdiction if, for example, logging potentially affects a First Nation.  Similarly, mining operations may potentially emit something into the air that winds could blow across provincial boundaries.  In short, there are few projects of any size the assessment of which will not have some potential impacts within federal jurisdiction. As well, the Act’s inclusion of “sustainability” (whatever that means) in its objectives may permit Ottawa to claim a very broad range of federal jurisdiction.

Direct and Indirect Federal Control

Federal climate policy is to accelerate the end of the use of hydrocarbons.  In addition to other regulatory measures, the IAA can be used to strangle the industry’s development of new production by depriving it of essential access to markets. 

Long pipelines for oil and gas are normally interprovincial, if not international. These pipelines and the ports from which to ship to markets remain under federal jurisdiction, unaffected by this judicial decision. 

The Real Purpose of the IAA is Not Impact Assessment

The real – but undisclosed – purpose of the IAA is to keep fossil fuels in the ground. This is done by preventing their transportation, via pipelines and ships, to major domestic and export markets. The recent Trans-Mountain Pipeline Extension assessment (conducted under the less onerous earlier law) took a decade, with repeated obstructive litigation, until the investors walked away and the government bought the project.

The Act is carefully designed to create a virtually endless review process, followed by a long report on potential impacts, but no decision.  The politicians, who hear none of the evidence make all of the decisions. The IAA is just the slow and costly road to the politicians. This increased politicization of the assessment process has destroyed the economics of interprovincial pipelines, because no private sector investors will take the risk of an application under what I have called the “No More Pipelines Act”.

Conclusion

Alberta and its supporters won a small constitutional victory. They can now construct small local pipeline projects without requiring an IAA proceeding., provided that that have no potentially significant federally regulated impacts. But Alberta needs more than that if its most valuable commodities, oil and gas, are to be transported to markets outside the Province. 

But the ongoing provincial battle over highly politicized federal decision-making masquerading as scientific impact assessment won’t be won through constitutional litigation; it can only be won in the court of public opinion.