Top court's ruling on environmental assessments disappointing but not the last word, say advocates

The Supreme Court of Canada's ruling against the federal government's environmental assessment legislation is being met with disappointment by environmental groups but also optimism about a path forward to keepfuture projects in check.

The Impact Assessment Act, passed into law in 2019, gives Ottawa the power to assess major industrial projects, such asnew mines or oilsands developments.

Dubbed the "no more pipelines act" by former Alberta premier Jason Kenney, it has fuelled anger over perceived federal overreach and was challenged in court by the Alberta government.

In a much-anticipated decision released Friday, Chief Justice Richard Wagner, writing for the majority, said the impacts being considered under the legislation were beyond the scope of federal jurisdiction and was therefore largely unconstitutional.

"Environmental protection remains one of today's most pressing challenges, and Parliament has the power to enact a scheme of environmental assessment to meet this challenge, but Parliament also has the duty to act within the enduring division of powers framework laid out in the Constitution," Wagner wrote.

Ottawa can modify legislation language

However, the court did not strike down the legislation,and experts and advocates said thisdecision leaves the door open for the federal government to play a strong role in overseeing major projects.

Stewart Elgie, law professor and head of the University of Ottawa's Environment Institute, said the ruling doesn't limit Ottawa's ability to regulate greenhouse gases or a wide variety of other environmental impacts.

He noted that the ruling itself was an advisory opinion, and the federal government can modify the language of the legislation in a few places to ensure it is constitutional.

"The federal government has to stay within its areas of constitutional jurisdiction, and for the most part, that means that it can't be regulating purely local or provincial environmental effects," Elgie said in an interview.

"But it has broad authority to look at the environmental implications of resource activity and industrial activity across all of Canada, particularly when it comes to meeting our international obligations. That really is a core area of federal responsibility."

'No project is immune from environmental scrutiny'

Environmental Defence, a Canadian advocacy organization that acted as an intervener in the case, said although parts of the Impact Assessment Act were found to be unconstitutional, the ruling nevertheless affirmed "the federal government does have jurisdiction to review projects to ensure that environmental impacts are avoided or mitigated."

"Federal oversight is crucial, given that environmental issues are not contained within provincial borders," Keith Brooks, the group's program director, said in a statement.

"It's especially crucial when provinces aren't taking environmental responsibility seriously or, as the case may be, are outright hostile towards environmental protection."

Joshua Ginsberg, a lawyer for Ecojustice, another environmental group, saidthat the ruling "confirmed that no project is immune from environmental scrutiny."

Megan Leslie, the president of World Wildlife Fund Canada and a former NDP MP, said she was "relieved" that the court reaffirmed federal jurisdiction around environmental assessment. "As far as I'm concerned, that's a win."

She said she understood provinces wanting to protect their jurisdiction, but said courts should be used as a last resort, only when conversations are impossible. "And I don't think a conversation is impossible, especially when we have the worst wildfire season on record."

WATCH | Smith 'extremely pleased' on Supreme Court ruling:

Smith 'extremely pleased' on Supreme Court ruling

11 months ago

Duration 0:55

Alberta Premier Danielle Smith reacts to news that the federal Impact Assessment Act, previously known as Bill C-69, is ruled unconstitutional by Canada's top court.

Premiers claim victory, too

Even so, Alberta Premier Danielle Smith, Ontario Premier Doug Ford and Saskatchewan Premier Scott Moe were quick to claim victory following the court decision.

"This should cause the federal government to rethink the many other areas where it is overstepping its constitutional competence, like electrical generation and oil and gas production," Moe wrote on social media.

Federal Environment Minister Steven Guilbeault said the court's opinion doesn't strike down the law and won't change how federal assessments have been conducted. He said the government has been cautious in its application.

"When applying this act, we have tried to ensure we stayed within federal heads of power. We will certainly continue to do that,'' he said.

"What the Supreme Court seems to suggest is that the act is too broad in certain respects and we need to tighten that. We will work to do that in the coming months.''