Advisory opining

We expect judges to be careful in their choice of words, lest they make their rulings weak. It's what makes the recent decision by Alberta's Court of Appeal, that the federal Impact Assessment Act is ultra vires so unusual, say critics.

In that ruling, the majority held that the federal law exceeds Ottawa's authority, particularly around natural resource projects. The federal government has promised to appeal the decision to the Supreme Court of Canada. 

Richard Lindgren, a staff lawyer with the Canadian Environmental Law Association, acted as co-council before the Court of Appeal for Environmental Defence and MiningWatch Canada. The three organizations argued that the federal regime is constitutionally sound. According to Lindgren, the federal legislation can be upheld under several federal heads of power, including fisheries, treaty-making authority, relationships with Indigenous peoples, trade and commerce and criminal law power.

"Some of those submissions obviously found some traction with the dissenting justice, but it's pretty clear that the majority preferred the submissions of Alberta and its aligned intervenors," Lindgren says.

Lindgren says his clients are disappointed and somewhat puzzled by the findings of the majority opinion. Mainly at issue was the suggestion that Section 92A of the Constitution Act 1867 is a kind of immunity shield that prevents any meaningful federal role when it comes to designated projects involving natural resource projects or extraction.

"I find that to be quite an interesting proposition," Lindgren says. "It will be very revealing to see what the Supreme Court of Canada does with that."

Martin Olszynski, a law professor at the University of Calgary, says the decision contains basic doctrinal errors. When dissecting the path to their conclusions, it's something of a straw-person that the dissenting justice neatly, clearly and coherently tears down.

"She points out that you can talk about a veto and social forces, but what we're really talking about is cooperative federalism and equal sovereigns in their own spheres," Olszynski.

"The provinces are not the children of the federal government, but neither is the federal government the child of the provinces," Olszynski says. "And yet the necessary implication of the majority's reasoning is that somehow the federal government is always subservient to provincial policies and preferences when exercising its own legislative authority. That doesn't make sense."

While the majority reasoning focuses heavily on natural resources, an area of provincial jurisdiction, there are plenty of items on the federal assessment list that don't touch natural resources.

"They did the same thing with the Greenhouse Gas Pollution Pricing Act reference," Olszynski explains, adding that the GGPA applies to several areas unrelated to natural resources development. "But it's the narrative and the frame that the Court of Appeal has adopted in both cases now, that this is somehow all designed to undermine Section 92A when in both cases, the scope of the federal legislation is considerably larger and encompasses many more things."

Olszynski says you can't interpret the scope of federal authority through existing legislation because it's not the same thing. Legislation can fill the jurisdictional space, or it can be less than. In the end, what matters is that Parliament has the jurisdictional space to legislate.

"Yet again, we see this Court of Appeal suggest that somehow because the IAA was broader in scope than the prohibition against harms to fish, then somehow that's off-side constitutionally," Olszynski says.

Interestingly, observers note similar use of injudicious language in the IAA decision and the same court's decision regarding the federal carbon price, which the Supreme Court overturned last year. 

Lindgren is stuck by the amount of extrajudicial commentary in the decision, particularly in the first few paragraphs, on various political, social, and economic issues that fall outside of the constitutional questions put to the court, echoing the judgment in the carbon price decision.

"It's not the first time we've seen this kind of language from this court in terms of adjudicating the constitutionality of federal statutes," Lindgren adds. "It will be interesting to see how the Supreme Court of Canada responds, if at all, to that kind of rhetoric."

Andrew Bernstein, a partner at Torys LLP in Toronto, believes that this appeal to the SCC will be harder for Ottawa to litigate than in the GPPA reference. It's unclear what they will do, particularly as there will be a new member of the top court by the time this arrives.

As for the unusual tone of the Court of Appeal decision, Bernstein suspects that the majority's use of language was deliberate, knowing that Supreme Court will have the final say.

"They want the Supreme Court to understand just how emotionally fraught the topic is to people in the West," Bernstein says. "Their message is that we feel incredibly strong about this, and before you reverse us, you should understand just how high emotions run."

Olszynski says that in the GPPA reference, the Supreme Court reminded the Court of Appeal that courts are neutral arbiters and directly overruled certain findings. So why persist with problematic rhetoric?

"I don't know that it's a signal to the Supreme Court, but it's speaking to Albertans of a conservative political orientation," says Olszynski. "It's congenial to their interests. If it goes to the Supreme Court, and if the Supreme Court overrules them again, it's a further undermining of the Supreme Court's legitimacy in this province, and that is very deliberate."

Olszynski says that the Supreme Court will be aware that there is a narrative being fostered that they are unsympathetic to Alberta's interests—and it's not correct. Read the decisions, and see which one is torqued with problematic reasoning and which one isn't.

"Once, you can sort of ignore it—the GPPA decision was full of political rhetoric," says Olszynski. "But when you see it twice, and all of the similarities, at some point, you do need to say something."

Olszynski says it becomes the role of academics to call this sort of behaviour by the Court of Appeal out when they see it.

According to Lindgren, the majority tried to characterize the pith and substance of the Impact Assessment Act, believing that they have mischaracterized the dominant purpose of the Act in their belief that it gives the federal government a virtual veto over all resource projects.

"Overall, it's aimed at safeguarding areas of federal jurisdiction from adverse impacts arising from designated projects, so I'm not entirely clear from the majority reasons why they characterized the pith and substance so broadly," Lindgren says. "That is going to be one of the key issues for the Supreme Court of Canada to adjudicate—what is the true nature of the Act, and which heads of power does it fall under?"

Lindgren says the Supreme Court of Canada's decision in this appeal could be the most significant environmental law decision since Oldman River in 1992, which held that federal environmental assessment guidelines were binding on the federal government and extended to projects sponsored by provincial governments.

Lindgren also flags the majority's suggestion that the Act is unconstitutional because it doesn't resemble the former environmental assessment regime that the SCC upheld in Oldman River. The dissenting justice pointed out that there is no constitutional pre-requisite that the assessment process must be tied to an affirmative regulatory duty, as the majority claims.

Lindgren points out that the current Impact Assessment Act is far narrower in scope than the original 1992 federal assessment regime — another reason why the majority's belief that it is too broad is questionable.

While three judges signed the majority decision, a fourth concurred with most of their reasons, save one section describing the Act as de facto expropriation of natural resources, for whom the concurring judge said she had no opinion.

"I read it as that judge having some concerns about the legal analysis there, and I think that's fine," Bernstein says. "You don't need to get to de facto expropriation to get to the conclusion that the Court of Appeal reached."

Bernstein says that he was disappointed in the ruling because it did not further explore the issues around interjurisdictional immunity.

"It's incredibly un-trodden ground," Bernstein says. "Every single case involves provincial laws not applying to the core of federal jurisdiction. There are no cases and there has been no careful examination in the court about the circumstances in which the federal laws don't apply to the core of provincial jurisdiction, and that's a really interesting question."

Bernstein expects this is an issue that will get more play at the Supreme Court, especially if the majority believes that the Act is within federal jurisdiction, at which point there is a secondary question about what it applies to.