We recently issued a bulletin on the Alberta Court of Appeal’s decision on the GOA’s Impact Assessment Act (IAA), where we included three teasers. With this blog we delve deeper on triggers for federal review.
The majority and dissenting opinions use some strong language, with the majority characterizing the IAA as an “existential threat … to Canada itself,” to which the dissent retorts: “Our planet is on fire and we need water – not heat.”
Notwithstanding this strong language, the majority and dissent do not appear to be that far apart when it comes to constitutional principles. Like Canadians from across Canada, the majority and the dissent have much more in common than what divides them. What divides them is actually quite narrow.
In fact, they both found that the federal government’s jurisdiction to conduct an impact assessment had to be grounded in federal heads of power under the constitution. The dissent was prepared to interpret the IAA as limiting impact assessments to designated projects that had the potential to have adverse effects of some significance in an area of federal power, such as fisheries, migratory birds or navigable waters.
The majority was not prepared to give the federal government the benefit of the doubt, particularly in the face of the inclusion of in-situ oil sands projects as designated projects, subject to an exemption if Alberta had a GHG emissions cap.
The majority gave a large and liberal interpretation to the IAA and some of the rhetoric of politicians that accompanied its passage, whereas the dissent essentially read the legislation down in deference to the more moderate voices from the political debate that surrounded the passage of the IAA.
A careful reading of the majority and dissent reveals that this is a tough case. It is one of those cases that often forms the basis for a law school exam. We can all have opinions, but no one really knows what decision the Supreme Court of Canada (SCC) will take. It could go either way.
The majority was looking for federal impact assessment legislation to be firmly grounded in a federal legislative trigger, like the one that was upheld by the SCC in Oldman.
The dissent, in recognition of the practical difficulties associated with relying on federal legislative triggers— which resulted in some projects getting built, prior to the submission of any applications for approvals under federal triggering legislation—was prepared to accept the IAA’s project based trigger subject to scrutiny during a 180 day planning phase. At the end of which, a determination could be made under s.16 of the IAA that a federal assessment was not required because the project was not likely to have adverse effects within federal jurisdiction.
The majority was not prepared to accept this approach because of the practical problems associated with policing unconstitutional exercises of federal assessment powers using judicial review.
Judicial review has certainly proven to be a major obstacle to major projects, regardless of whether they have triggered federal approval or assessment requirements.
The delay associated with judicial review and even supposedly fast tracked appeals requiring permission to appeal (in the case of the Alberta Court of Appeal) and leave to appeal (in the case of the Federal Court of Appeal), can rival or exceed the time taken to go through the regulatory processes.
It certainly does not have to be that way.
Past courts have shown that they can be creative and move at incredible speed on appeals and judicial reviews of major projects.
The Express Pipeline case is the best example of that, with the Federal Court of Appeal combining multiple leave and judicial review applications with an appeal and hearing, and deciding them all in a matter of weeks.
Unfortunately, the more recent experience is that referred to by the majority, where post decision litigation has proven effective in delaying and killing projects.
It should also be noted that going back to federal legislative triggers accepted in Oldman as the basis for undertaking federal environmental assessments is not an answer to the judicial review problem.
Bill C-68 has taken fisheries legislation back to the pre-2012 era where the legislation has to be read down to protection of fisheries to be constitutional. Fisheries and Oceans Canada (DFO) generally takes the position that any activity that harms fish or fish habitat requires a federal authorization and not just serious harm to fish or a fisheries, as was briefly the case between 2012 and 2019 pursuant to amendments that were made to have the fisheries legislation conform to federal constitutional powers as defined by the SCC. The Canadian Environmental Assessment Act (CEAA) of 1992 held the potential for federal overreach that could only be controlled by judicial review.
In the end, the rule of law is dependent on the administration of justice, which requires effective and efficient recourse to judicial review, regardless of the legislative approach taken to triggering federal impact or environmental assessments. The point at which judicial review no longer provides practical remedies is the point at which we are no longer governed by the rule of law.
Our regulatory team will be providing further analysis of the decision in the coming days.