A leading B.C. expert in environmental law says future federal assessments of major projects will be more narrow following a Supreme Court of Canada advisory ruling against federal legislation governing the environmental effects of such projects.
Five out of seven judges on the Supreme Court of Canada Friday (Oct. 13) ruled that much of the legislation formerly known as Bill C-69 was unconstitutional because it tries to regulate activities within provincial jurisdiction.
“For B.C., it means that any federal assessment of major projects like new mines or hydro facilities will need to focus specifically on impacts to federal jurisdiction such as fish, fish habitat, migratory birds, Indigenous lands and federal lands,” Deborah Curran, executive director of the Environmental Law Centre at the University of Victoria, said. “Federal assessment cannot examine, more generally, sustainability.”
While the court’s ruling is non-binding, critics of the legislation — chief among them Alberta — praised the court’s decision.
Premier Danielle Smith called the legislation “destructive” in a statement issued shortly after the ruling.
“This legislation is already responsible for the loss of tens of billions in investment as well as thousands of jobs across many provinces and economic sectors,” she said.
She also called the decision a “massive win” for the protection of provincial rights.
“Today’s court decision significantly strengthens our province’s legal position as we work to protect Albertans from federal intrusion into various areas of sovereign provincial jurisdiction,” she added.
Various environmental groups have publicly lamented the ruling as a setback and BC Green Leader Sonia Furstenau said it obscures a larger point.
“Canada’s climate commitments have been consistently undermined and instead of being a leader in climate action, Canada is a significant fossil fuel expander,” she said in a statement to Black Press Media.
Oil production is expanding in the coming years, reflecting a lack of political will toward leadership in climate action and transitioning toward a clean, renewable energy economy, she added.
“The recent Supreme Court decision highlighting overlapping jurisdictions in resource projects really underscores the need for strong political determination rather than just better laws,” she said. “Unfortunately, the (federal) government continues to heavily invest in the oil and gas industry, signaling a lack of commitment to tackling the climate crisis head on.”
The Impact Assessment Act came into effect in 2019, but soon faced constitutional a challenge from Alberta. Saskatchewan, Ontario, groups representing First Nations as well as the oil industry represented by Canadian Association of Petroleum Producers supported the challenge.
After Alberta’s highest court had ruled against the legislation in 2022, the federal government, supported by environmental groups and others, appealed that decision, only to find itself on the losing side once again.
The federal government has since signalled that it would change the legislation to make it constitutional.
Curran said the court clearly identified the importance of environmental protection as one of today’s most pressing challenges, adding that the ruling does not change current constitutional jurisdictions around the environment. Provinces remain responsible for non-renewable natural resources, forestry, hydro and other electric installations. The federal government remains responsible for fisheries, oceans, navigation, migratory birds, federal lands and Indigenous lands.
“If provincial approval of major projects that affect the environment will have an impact on federal jurisdiction, for example if they will affect fish or Indigenous lands, then the federal government has the authority to review and impose conditions on those projects,” she said.
Curran pointed out that the court did not strike down the law. “The court was clear that the federal government can have an impact assessment regime that addresses the physical impacts of major projects,” she said. “It found the part of the regime that applies to federal lands or federally funded or undertaken projects valid. The court specifically noted that the criteria for making decisions about ‘designated projects need to be directed specifically to federal aspects of regulation.”
The provincial government is still reviewing the decision.
“We have received the Court’s decision and are now taking the time to review it in detail,” said a statement from the Ministry of Attorney General.
-with files from Canadian Press