“Holy s— we won!” That was the first joyous response from Premier Danielle Smith’s circle, after a momentous Supreme Court ruling came out Friday.
Hardly anybody in the government expected victory over Ottawa’s Impact Assessment Act. The court seemed stacked against provincial rights for years, especially after the departure of Justice Russell Brown.
But by a 5-2 count, the justices emphatically rejected the IAA as the intrusive, unconstitutional heap of parliamentary junk it has always been.
Ecstatic, Smith quickly started the victory dance.
“If you believe in fairness, common sense and the sanctity of the Canadian Constitution, today is a great day,” she said.
She invited companies to start building natural gas plants again, presuming that the decision cancels Ottawa’s ability to impose net-zero emissions on the electricity grid by 2035.
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Smith also concludes that the coming federal cap on oil and gas emissions will be invalid. Alberta will be under no obligation to adhere to it, she says, while still calling for talks with Ottawa.
Legislature motions under the Sovereignty Act will suddenly be more credible. The new twist allows Smith to claim she’s defending federal law, not defying it.
The Trudeau Liberals are already trying to blur the decision, claiming that a few amendments to the IAA will sort things out.
But no amount of politicking and message-managing will change the core of the decision.
The Impact Assessment Act is perfectly fine and legal for federal projects on federal land, or outside Canada, the court said.
But it may not be applied to private or provincial projects on private or provincial land.
Declared illegal is the whole crazy part of the IAA, which requires provincial and private adherence to dozens of categories before a resource project can be built.
Many criteria are totally unrelated to the resource or even the environment.
The act says the criteria include “the intersection of sex and gender with other identity factors; and any other matter relevant to the impact assessment that the Agency requires to be taken into account.”
The feds are now free to impose those conditions on their own projects, but not on provincial ones.
The court noted that the IAA makes companies jump through many hoops to get a final approval. And at the end, the federal minister in charge can simply change conditions or throw the whole thing out.
Former premier Jason Kenney opposed the IAA fiercely. NDP Leader Rachel Notley criticized the bill at a Senate hearing.
Kenney took to Twitter on Friday for a round of well-earned triumphalism. As Smith noted, he started the challenge and deserves the credit.
“Today’s Supreme Court decision striking down the Trudeau government’s destructive Impact Assessment Act is a massive victory for both the Canadian federation and economy!” Kenney said.
“It is the most important decision on the ground rules of our federation since patriation in 1982.”
Once the Trudeau Liberals took office in 2015, the gradual creep of federal authority into areas of provincial responsibility has seemed unstoppable.
Environment and climate were wedges used to assume control over nearly every significant resource project in this country.
The top court often appeared to be agreeable. Ottawa’s carbon tax victory in 2021 hinged on the doctrine of “national concern.” The Constitution itself went on the back shelf.
Or so it seemed, until Friday.
“Today’s decision significantly strengthens our legal position,” Smith said.
“Alberta will simply not accept being handcuffed by Ottawa’s unfair overreach with another blatant attempt to erode and emasculate the rights of constitutional authority of the provinces.”
But the premier also acknowledged that Ottawa still has regulatory authority over cross-border projects such as pipelines, as well as responsibility for the environment.
The decision did not rule out Ottawa having some regulatory concerns for provincial projects.
The details are complex but the core is clear.
Ottawa simply cannot grab power it does not possess under the Constitution. The feds must find joint solutions, or face rebellion by provinces that now have the law on their side.
Don Braid’s column appears regularly in the Herald.