The Ontario government is joining Alberta in its court battle over the federal government’s Impact Assessment Act, part of Bill C-69. It’s a bill that if left in place could derail much of what Premier Doug Ford campaigned on in the June provincial election.
A provincial court in Alberta recently described the environmental legislation as taking a “wrecking ball” to the Constitution, but the feds have appealed that decision to the Supreme Court and so Ontario will intervene.
“The Attorney General of Ontario intends to intervene, to file a factum and requests to participate in oral argument,” states the notice filed with the court after approval by cabinet on Wednesday.
The Impact Assessment Act was passed by the Trudeau government in 2019 and hailed by supporters as a sweeping and much needed update to environmental protection laws. It was less welcomed by provincial governments which saw it as infringing on their jurisdiction and by companies involved in resource extraction which saw it as a threat to their industries.
The environment isn’t mentioned in Canada’s Constitution, and courts have ruled that it’s a shared jurisdiction and that any federal incursion into matters must be connected to a federal power.
The Court of Appeal of Alberta declared that the legislation took “a wrecking ball” to the constitutional right of provinces “to have their 92A natural resources developed for their benefit.” Sec. 92A of
the Constitution makes it clear that provinces have control over non-renewable natural resources, forestry and production of electricity in their respective provinces.
In addition to describing the effects of the federal legislation as a “wrecking ball,” the court found that Bill C-69 gave the federal cabinet an effective veto over projects that provincial governments are constitutionally responsible for, something the Constitution doesn’t allow for.
Ontario, in addition to supporting Alberta’s arguments on constitutional grounds, argues that the law is duplicative and costly.
“The federal impact assessment process duplicates Ontario’s rigorous and world-leading environmental assessment requirements, unnecessarily adding years to project timelines and costing jobs and billions of dollars in lost investments,” said Natasha Krstajic, spokesperson for Ontario’s attorney general Doug Downey.
“As Canada and Ontario compete for new jobs and every dollar of investment, global companies need to have confidence in our ability to deliver major infrastructure projects on time and on budget.”
This isn’t the first time the Ford government has spoken out against this legislation. Minister Greg Rickford appeared before the Senate when the upper house was studying the bill to say that it would hurt Ontario’s economy.
“We believe that Bill C-69, in its current form, contradicts several of Canada’s economic goals, and could potentially grind to a halt natural resource and economic development in Ontario,” Rickford told the Senate in February 2019.
That ability to grind Ontario’s development to a halt is shown by the federal government invoking the IAA on Hwy. 413. Previously, a highway project of this sort wouldn’t be subject to a federal environmental assessment, but now it is.
The Ford government is also concerned about the IAA being used to shut down the mining of critical minerals in Northern Ontario, which is vital to their plan to make the province a key hub for electric vehicle battery production. There are also concerns about the ability to produce small modular reactors, a new type of nuclear power that is not only low on greenhouse gas emissions but can be deployed in hard-to-reach locations around the world.
The justices at the Alberta Court of Appeal were right to say that this act was a violation of the Constitution.
Let’s hope the Supreme Court sees it the same way and doesn’t twist themselves into pretzels to find a political solution to make the Trudeau government happy.