This article was originally published in the Globe and Mail.
By Heather Exner-Pirot, October 13, 2023
In a strong rebuke to the federal government, the Supreme Court on Friday issued its long-awaited opinion on the constitutionality of the Impact Assessment Act (IAA). In a 5 to 2 decision, the majority found that the Liberal government’s regulations for major projects such as oil and gas operations and mines violate provincial jurisdiction.
The decision will have lasting impact. It is a piece of cautiously optimistic news for the industry, paving the way for realizing its greatest desire: to move away from concurrent and competing federal and provincial processes for project approval, toward a more efficient principle of one project, one assessment.
There will be immediate impacts, too. It’s hard to see how the Liberal government’s proposed clean electricity regulations and oil and gas emissions cap, which is contentious on similar grounds, can now be seen as constitutional.
In the wake of the decision on Friday, the federal government promised to amend the act. The decision provides good reason for the government to start looking at its other environmental regulations through the same lens.
The IAA, which became law in 2019 after contentious Senate hearings and months of public protests, is unpopular for wholly legitimate reasons. It duplicated and often competed with provincial processes for approving natural resources projects, adding time, money, confusion and risk for companies.
It also politicized the regulatory process, allowing the federal minister of environment and climate change to designate just about any resource project in the country for assessment, and then effectively veto it too. The results, if unchecked: a quiet quitting of investors and proponents who then move their capital to greener, more predictable pastures.
Even before the Supreme Court opinion on the IAA came out, the Liberals had promised to reform it. Friday’s decision gives the government additional impetus to do it properly.
The opportunity in those forthcoming amendments is not for the federal government to take bad, unconstitutional regulatory legislation and turn it into bad, constitutional legislation. The times demand much more. The act reflected an outdated way of thinking that saw the environment and Indigenous peoples as inherently needing to be protected from the provinces and the resource sector. But the world has changed.
Now we need to build: to meet net-zero goals, to supply our allies with energy and critical minerals, to compete with the U.S. Inflation Reduction Act, to bolster our anemic economy – take your pick. Where we once applied sticks to major energy and resource projects, we now need to offer carrots. This needs to be reflected in the amendments to the IAA.
In the Liberal government’s news conference responding to the opinion, Energy and Natural Resources Minister Jonathan Wilkinson expressed hope that this would be the last time the federal and provincial governments settled their differences in court, saying “Canada works best when Canadians work together.”
Let’s all hope that happens.
A large and critical part of Canada’s economy has found itself in the crosshairs of jurisdictional infighting. It has created polarization and uncertainty, and investors and proponents of projects abhor it. Our country needs and deserves a functional regulatory process – one that doesn’t just prevent bad projects, but advances good ones, too. The Supreme Court’s decision is an opening to create one.
Heather Exner-Pirot is director of energy, natural resources and environment at the Macdonald-Laurier Institute.