All this week, the Alberta government will be in court challenging the constitutionality of the new federal Impact Assessment Act, with the goal of preventing Ottawa from assessing the impact of coal mining projects in the eastern slopes or new oilsands in situ projects.
A host of environmental groups including Nature Canada, West Coast Environmental Law and MiningWatch Canada will also be in the Alberta Court of Appeal arguing that the act is constitutional and does not intrude on provincial jurisdiction.
But MP Elizabeth May, the former leader of the Green party and a long-time environmental lawyer, says the federal law is so badly designed, she hopes that the courts will strike it down.
“It is a very dangerous system and a joke,” May told the Tyee. “I hope the Alberta government wins. It is not proper environmental assessment.”
“But the motivation of the Kenney government is terrible,” added May who voted against the legislation in 2019. While Premier Jason Kenney and his government “think it is an anti-pipeline bill,” May said, the Liberal legislation actually “is rife with discretions for the environment minister,” she said.
An environment minister in a more pro-oil industry government could use that discretion to push through pipelines, she said, which for May “is distressing.”
The new act lists projects such as coal or metal mines extracting 5,000 tonnes per day as being subject to assessment. In situ bitumen extraction may also be reviewed, unless it occurs “within a province in which provincial legislation is in force to limit the amount of greenhouse gas emissions produced by oilsands sites in the province.”
But many environmental groups fear that if the Alberta Court of Appeal finds the Impact Assessment Act unconstitutional and the Supreme Court upholds that decision, then Canada wouldn’t have the ability to gauge the impacts of major industrial projects.
“If they succeed, we will have very little authority for the federal assessment of anything,” said Jamie Kneen, communication director of MiningWatch.
He suspects the Alberta government challenge, which began in September 2019 at the same time the government started advocating for Australian coal mining companies, is largely motivated by ideology. “This is a government that is trying to attack the federal government at every opportunity and blame it for everything wrong in Alberta’s economy.”
But even Kneen admits that the Impact Assessment Act is not a great piece of legislation: “We are not keen on the act. It is awkward and badly designed.”
May added that there is no question that the federal government is constitutionally empowered to conduct environmental reviews.
But in a legal “factum” the Alberta government, which is not really contesting the weakness of the Impact Assessment Act, views any form of federal assessment as a “Trojan horse” enabling the federal government, “on the pretext of some narrow grounds of federal jurisdiction, to conduct a far-ranging inquiry into matters that are exclusively within the provincial jurisdiction.”
Shades of Harper’s approach
But the Impact Assessment Act really doesn’t differ much in shape and form from changes the Harper government made in 2012 to the Canadian Environmental Assessment Act in an attempt to speed up project approvals.
That year, the Harper government created a political storm when it gutted a number of environmental laws, including the CEAA, on the grounds that they were slowing down pipeline and oilsands development.
Yet the public record shows that between 1976 and 2012, the federal environment assessment process had only rejected two projects. The majority were approved with conditions. Moreover, proponents were largely responsible for any time delays as economic conditions changed.
Nevertheless, the Harper government changed the entire focus of environmental assessment.
It imposed short timelines for the review of big and complex projects and restricted public participation. It also changed the trigger for a review from a project on federal land, using federal money or areas of federal law, to a list of designated projects like pipelines or dams.
At the same time, it vastly reduced the number of projects subject to review from 4,000 a year to barely a hundred. And it placed more decision-making in the political realm at the whim of the environment minister and cabinet. It also gave federal regulators such as the National Energy Board a big voice in project approvals.
The ensuing public battle over the Trans Mountain pipeline hearings brought the whole process into disrepute.
In an attempt to restore some accountability, the Trudeau government appointed an expert panel including Rod Northey, one of the country’s top environmental assessment lawyers, to offer advice on how to restore integrity to the assessment regime in 2016.
But the Trudeau government ignored their report, as well as their recommendations.
The expert panel recommended substantive rules, a quasi-judicial tribunal with real expertise, a review of both big and small projects (because small projects can have big impacts), and a focus on federal interests such as federal lands, federal funding and federal law, and all that includes species at risk, fish, marine plants, migratory birds and Indigenous issues.
It also recommended that regulatory bodies such as the Canada Energy Regulator have no role on panels and that Indigenous people be included in decision-making at all stages of impact assessment, “in accordance with their own laws and customs.”
Instead, the government offered, with limited involvement by Indigenous people, an Impact Assessment Act that closely resembled and incorporated all the flaws of Harper’s regime, said May. “They threw the baby out of the bathtub and kept the toxic water.”
‘Bordering on useless’
Calgary legal scholar Martin Olszynski concurred in his critique of the changes: “It is certainly less of a departure from CEAA 2012 than that legislation was from the original Canadian Environmental Assessment Act in 1992.”
Just like Harper’s changes in 2012, the Impact Assessment Act focuses on a list of projects and gives the minister broad discretion to identify projects for public review whenever the minister thinks they “may cause adverse effects within federal jurisdiction or adverse direct or incidental effects, or public concerns related to those effects warrant the designation.”
The Trudeau government also gave the agency the discretion to consider the manner in which members of the public may participate. And it allows energy regulators to participate on panels. The act does not specifically require that science and evidence reported by companies be rigorously reviewed by federal scientists.
“Overall, the entire act is rendered ineffective, bordering on useless, by the extent of ministerial discretion,” said May.
Environment Canada advocated for such a poor law because the ministry is but a shadow of itself, said May. “Environment Canada is now a department without content — paper pushers with no understanding of anything. They give bad advice.”
Since the Impact Assessment Act came into effect 18 months ago, 10 projects have been triggered for assessment compared to 75 projects under Harper’s act in 2012.
Three of the 10 projects triggered under the act are in Alberta. They include the Coalspur Vista Coal Underground Mine expansion, the Suncor Base Mine extension, and the ATCO Salt Cavern.
The hearings on the controversial Grassy Mountain coal mine project proposed by Australian billionaire Gina Rinehart were held under the rules of the Harper’s Canadian Environmental Assessment Act 2012. That ruling is expected before June.
The Alberta Court of Appeal will conclude its hearing at the end of this week and a decision is expected within six months.