By Gary G. Mar
Published in the Calgary Herald

May 18, 2022

For those who see superior court decisions as the legal version of the Stanley Cup playoffs, it may be tempting to view the recent Alberta Court of Appeal decision on the federal Impact Assessment Act as a “Battle of Alberta,” with the Government of Alberta coming out on top. But this decision doesn’t create winners or losers. What it does, hopefully, is take us one step closer to reduce the uncertainty surrounding investment in major projects across the country, something that would make everyone a winner.

On May 10, the Alberta Court of Appeal declared that the federal government had overstepped its bounds in the way that the Impact Assessment Act was formulated. The issue wasn’t the importance of impact assessment, or the criteria used to review project-related effects. It was that the Act allowed the federal government to unilaterally declare a project under provincial authority to be within federal jurisdiction and to then be able to assess all impacts of the project, even those not tied to any federal heads of power.

The majority opinion reminded the federal government that what is considered federal jurisdiction is defined by the Constitution and if the division of powers is not clear the courts will decide, not Cabinet through a unilateral decision.

The responsibility for environmental regulation is shared with no jurisdiction assigned in the Constitution to either the provinces or the federal government. In recent years, it has been the job of the courts to build out the boundaries. The process began with previous Court decisions, most notably through the Oldman River and Greenhouse Gas Pricing Act (GGPA) decisions.

The Oldman River decision established that that the federal government was entitled to act on environmental matters within provinces, but that this power was not absolute. The Supreme Court supported federal jurisdiction in the GGPA, but that decision was limited to the issue of minimum carbon price standards and allowed provinces leeway in how they implemented their own carbon price.

Clearly, the job of partitioning responsibility and jurisdiction between the provinces and the federal government isn’t done. Although the Alberta court sided with the province, we will have to wait for the Supreme Court decision to see where they believe the boundaries lie and whether the federal government has sole jurisdiction to set those boundaries.

Interestingly, a good question is how this problem of jurisdiction in environmental assessments was dealt with before the Impact Assessment Act. The answer is cooperative federalism. Alberta and Canada both have impact assessment regulations. In 1999, they came to a non-binding agreement, the Canada-Alberta Agreement on Environmental Assessment Cooperation, which set out a mechanism for a joint review panel, “including a framework for determining the lead jurisdiction.” However, the wording of the Alberta decision was clear and unequivocal. Constitutional jurisdiction cannot be relinquished by either the federal or any provincial government. The only way the division of powers can be changed is through constitutional amendment.

Regardless of the outcome of this decision, or the appeal to the Supreme Court of Canada, if we are to avoid ongoing uncertainty and potential future references to the courts all parties need to recognize that they have shared goals and shared responsibilities and the only way forward is real cooperation. If neither party is superior, then they must cooperate to achieve their shared goals rather than create uncertainty and occupy the courts.

Cooperation is possible. It requires shared analysis and understanding of the environmental, social and economic impacts of policies on all jurisdictions across the country. We see it through examples like the Canada-Alberta bilateral agreement on assessment and federal-provincial working groups in other shared areas of responsibility like agriculture. Failure to cooperate means that no policy will be truly “Pan-Canadian.”

Gary Mar is president and CEO of the Canada West Foundation