Why we want informed environmental decision-making, and why the word ‘veto’ is unhelpful
On Thursday, February 25th I double-checked that my computer’s mic was working and logged into a hearing before the Alberta Court of Appeal that was considering the legality of Canada’s Impact Assessment Act (IAA). I was appearing on behalf of Nature Canada, arguing that the federal government has the authority to enact the IAA and to assess the impacts of natural resource projects that have the potential to affect federal matters like fisheries, migratory birds and species at risk.
The Alberta government has brought a “constitutional reference” to the Court of Appeal, asking it to rule that the IAA is outside of federal constitutional authority because of its impact on provincial powers. The case was argued virtually over the course of four days by lawyers for sixteen parties and intervenors, and heard by five Alberta Court of Appeal judges.
Before we go into the details about why this case is important, our arguments and next steps, I would like to give a huge shout-out to our client, Nature Canada, for deciding to intervene in the reference and for entrusting us to represent them in court. West Coast and Nature Canada are longstanding partners in calling for stronger environmental laws, and partnering to uphold the IAA was a natural fit (pun intended).
What the case is and why it is important
Our interest in the case is clear: the federal government must make informed decisions about whether to allow impacts on federal matters like fisheries, migratory birds and species at risk, and about federally-regulated projects like pipelines. The IAA establishes a process for doing so.
It is by no means a perfect law, but for now it is what we have, and federal authority to designate projects for impact assessment and consider all those projects’ effects must be maintained.
Being a constitutional reference, no legal interests are immediately at stake. Alberta has simply asked the Alberta Court of Appeal for its opinion as to whether the IAA is within federal constitutional authority to enact (in legal terms, whether it is intra vires federal power).
The main issues
The federal government has been assessing the environmental effects of various projects and activities for nearly 50 years. In 1992, the Supreme Court of Canada upheld the Environmental Assessment and Review Process Guidelines Order (EARPGO), an earlier regulation that required environmental assessments of all projects and activities that required federal authorization under another statute, had a federal proponent or federal funding, or that was located on federal lands.
In that case, the Supreme Court soundly rejected Alberta’s argument that an assessment of a hydroelectric dam on the Oldman River was a “Trojan horse enabling the federal government, on the pretext of some narrow ground of federal jurisdiction, to conduct a far ranging inquiry into matters that are exclusively within provincial jurisdiction.” The court found that the EARPGO simply added to the information that authorities must consider when performing their functions or duties.
Given that the Supreme Court of Canada has upheld federal power to assess the effects of projects and activities, Alberta’s case is not particularly strong, and smacks of political posturing. However, the IAA differs from the EARPGO in three ways that the Alberta Court of Appeal appeared to find important, and if this case makes it to the Supreme Court of Canada (which, given its importance, it is likely to do) it has the potential to clarify points of law.
1) How assessments are “triggered” – The first way the IAA differs from the EARPGO is in how it subjects projects to federal assessment. Unlike the EARPGO, which “triggered” assessments on the basis that a federal authority was exercising a regulatory duty elsewhere, the IAA designates projects for assessment by listing them in regulations. Projects of a particular type and above a specified threshold are subject to the IAA, such as new metal mines that will produce at least 5,000 tonnes of ore per day, or new highways that will need at least 75 km of new right of way.
The project list regulation has been designed to only capture those projects with the greatest potential for the most significant impacts on areas of federal authority. But Alberta is arguing that there is no guarantee that those projects will have federal impacts, and even those that might not will still have to go through a lengthy federal review. The Alberta government takes particular offense to the designation of in situ oil sands mines in provinces without a legislated carbon cap in place.
2) Effects considered – The second way the IAA differs from the EARPGO is in the scope of effects that decision-makers must consider. The EARPGO limited the effects to be considered to environmental effects and “social effects directly related to those environmental effects,” whereas the IAA requires consideration of all effects. While the Supreme Court in Oldman did state that those effects could include both positive and negative environmental, social and economic effects, some commentators have suggested that the range of effects to be considered should be more limited for natural resource and hydro projects like mines and dams, as compared to federally-regulated projects like railways and pipelines.
3) A decision separate from other federal statutes – The third main difference is that the IAA establishes a decision about whether to approve a project’s federal effects. The EARPGO simply set up a process for informing decisions made under other statutes, like the Fisheries Act, or other decisions, such as whether the government should fund the project. The IAA, on the other hand, requires the Minister of Environment and Climate Change or Governor in Council to decide whether designated projects’ effects on federal areas of authority are in the public interest, regardless of whether those projects otherwise require a federal exercise of duty or authority. Throughout the reference hearing, Alberta and intervenors in support of Alberta’s position repeatedly characterized this decision as a veto.
What we said
Federal division of powers
I started our submission to the Alberta Court of Appeal by reviewing key Supreme Court of Canada cases about the division of powers between the federal Parliament and provincial legislatures over environmental matters.
The Constitution Act, 1867 lists the various things the federal and provincial governments have power over, called “heads of power.” For example, it gives the federal Parliament jurisdiction over sea coast and inland fisheries, navigation and shipping, and interprovincial projects, and gives the provincial legislatures authority over things like natural resources, hydroelectric energy, and local works and undertakings.
The environment is not listed among the various heads of power (many argue that’s because the environment wasn’t contemplated when the Constitution was enacted). Over the years the courts have confirmed that it is an area of shared responsibility under various relevant heads of power, such as those described here.
In three cases in the 1980s and 1990s – Crown Zellerbach, Hydro-Québec and Oldman – the Supreme Court of Canada, and in particular Justice La Forest, stressed the importance of preserving the ability of both the provincial and federal governments to exercise their powers to protect the environment. In Hydro-Québec, Justice La Forest recognized what he referred to as the “superordinate importance” of both federal and provincial legislative measures to protect the environment, and to preserve the ability of both orders of government to “exercise leadership” in environmental protection.
In Oldman he again confirmed the need to find concurrent spheres of jurisdiction with respect of environmental protection wherever possible, finding that it is unhelpful to characterize projects as either “provincial” or “federal.” I argued that it is similarly unhelpful to characterize a valid decision with respect to effects on areas of federal jurisdiction as a veto.
In cases such as Quebec v Moses, R v Fowler and Northwest Falling, the Supreme Court of Canada has been clear that Parliament has jurisdiction to enact laws that require proponents to obtain federal approval before impacting federal matters. Indeed, in considering federal authority under the Canadian Environmental Assessment Act (CEAA, a precursor to the IAA) Moses, Justice Binnie held:
There is no doubt that a… mining project, considered in isolation, falls within provincial jurisdiction under s. 92A of the Constitution Act… There is also no doubt that ordinarily a mining project anywhere in Canada that puts at risk fish habitat could not proceed without a permit from the federal Fisheries Minister, which he or she could not issue except after compliance with the CEAA. The mining of non-renewable mineral resources aspect falls within provincial jurisdiction, but the fisheries aspect is federal.
In other words, Parliament has authority to establish a decision-making function with respect to federal effects, including when that decision applies to natural resource projects. The Impact Assessment Act simply does what the Supreme Court has confirmed is within Parliament’s power: it establishes a decision-making function respecting federal matters, and sets out the factors that must be considered when reaching that decision.
Canada can consider a broad range of factors
I next argued for Nature Canada that when deciding whether federal effects are in the public interest, it is not only constitutionally permissible, but reasonable and appropriate for federal authorities to consider a broad range of considerations.
There is strong case law in support of this position, too. In Quebec v National Energy Board a unanimous Supreme Court of Canada held:
Ultimately, it is proper for the Board to consider in its decision-making process the overall environmental costs of granting the license sought… If in applying this Act the Board finds environmental effects within a province relevant to its decision to grant an export license, it is entitled to consider those effects… This co-existence of responsibility is neither unusual nor unworkable.
In MiningWatch Canada, the Supreme Court held that an assessment under CEAA must consider the entire project, and not just those project components that would result in federal effects. In fact, in the National Energy Board case, the Supreme Court held that when deciding whether to grant a license to export power to the United States, the National Energy Board could consider the impacts of the provincial generating facilities that would provide that power in the future.
As these cases confirm, the scope of project and factors that the Minister may consider when deciding whether federal effects are in the public interest are broad.
Weighing the pros and cons
We also argued that federal decision-makers can and should consider the full range of impacts and benefits when deciding whether federal effects are in the public interest.
In Oldman, Justice La Forest found that rarely will a project like a dam impact navigation in a beneficial way. Similarly, rarely will a pipeline or mine have a positive impact on fish. That is why decision-makers need to consider things like jobs and economic benefits, which are often provincial in nature. If federal authorities didn’t consider those (often provincial) benefits, they would find little or no justification for authorizing the harm.
But the Constitution doesn’t distinguish between impacts and benefits. A provincial matter is a provincial matter whether it’s a benefit or an impact. Therefore, if federal authorities can consider provincial benefits, it must be able to consider provincial impacts, too.
From a policy perspective, it also makes sense to consider the full range of a project’s benefits and impacts when deciding whether a federal effect is warranted. As the Supreme Court of Canada noted in Canadian Forest Products, the environment (components like trees, or areas like parks) have different values for different people. Fisheries have inherent ecosystem values, food values, as well as recreational and even spiritual values for some. Ecosystem losses may be compensated for, or they may be compounded by other related losses. That is why the decision of whether to allow harm to – or even the destruction of – say, a lake, must be made in light of all the impacts and benefits associated with that harm.
Take, for example, a hydroelectric dam. Under the IAA, the Minister would have to consider whether the dam’s impacts on navigation, fisheries and perhaps migratory birds or species at risk are in the public interest. One of the clearest advantages of a hydroelectric dam is the provision of energy to residents of the province – a provincial matter under the Constitution.
What if the dam would also create jobs? Those would be another advantage that Justice La Forest said in Oldman could be considered. But what if the dam is located on farmland (Site C, anyone?), and would result in the loss of farm jobs? In this case, the Minister would have to weigh the job benefits against the job impacts when deciding whether the net jobs meant that the fisheries and navigation impacts were in the public interest.
Take the example one step further and consider an often badly-understood and much-maligned provision of the IAA (often on outrightly sexist grounds): the requirement to consider the intersection of sex and gender with other identify factors (better known as the GBA+ provision).
GBA+ can be highly relevant in assessments, and there are more aspects to it than ensuring equal access to jobs.
Consider if the dam is to be located near a town, and the proponent proposes to bring in a few hundred workers from outside the community and house them in town. And consider if evidence arises during the assessment that housing hundreds of workers in small communities creates a risk to women’s health and safety. That risk to safety is not just due to the potential for increased violence – things like rising housing costs and lower housing availability, and increased pressures on health care also tend to disproportionately impact women. And that risk is compounded for Indigenous and other racialized women (see our sister blog for more detail).
In other words, a consequence of authorizing the federal effects would be an increased risk of harm to women. Seen in that light, it becomes obvious that it would be wholly appropriate for the Minister to not only consider that risk, but to also require the proponent to house the workers in a camp away from town, as a condition of approval. Workers’ housing is clearly provincial in nature, but if imposing conditions respecting workers’ housing allows the federal Minister to authorize federal effects, it should be within federal power to do so.
In Oldman, Justice La Forest recognized that the “environment” “encompasses the physical, economic and social environment.” That recognition is ultimately a recognition that you can’t untangle an environmental harm from the collateral effects of allowing that harm to occur. Trying to do so would be like trying to unscramble an egg.
What happens next
The hearing wrapped up on February 26th, and now the five Alberta Court of Appeal judges will take time to consider the information and write their decision. It will likely be long, it may take months, and it will likely be appealed to the Supreme Court of Canada.
In short, it may be a couple of years before we have an ultimate judicial opinion on the extent of federal authority to require projects to undergo assessments, and what decision-makers can consider when deciding whether federal effects are warranted.
In the meantime, we hope that protection of the environment stops being an object of partisan rivalry, and that all provinces and the federal government work together to ensure a strong environmental safety net for Canada. When it comes to environmental protection, we need all hands on deck.
Top photo: Alberta Foothills (AutumnSkyPhotography)