Despite the brave faces from the prime minister and his cabinet, there’s no escaping the fact that the Supreme Court’s decision finding the Impact Assessment Act to be unconstitutional was a sharp rebuke and a major defeat.
Conversely, the decision is a significant win for Alberta and a clear validation of the argument against federal overreach that prompted the legal challenge in the first place.
As such, there’s been nothing insincere about the elation here in Alberta, and we’ve seen a rather extended and exuberant victory lap from the premier since the ruling. That’s to be expected — it’s not just the triumph over the much-maligned Impact Assessment Act, but also the likelihood that this bodes well for challenging Ottawa’s Clear Energy Regulations and other meddlesome policies.
It’s notable that the premier who set all of this in motion didn’t last long enough to see it come to fruition. Whichever of the two main leaders prevailed in Alberta’s most recent provincial election was going to be in the fortunate position of having this court decision land in her lap.
But here’s the ironic twist: had it been up to either of those leaders, there would be nothing to celebrate. There would have been no court challenge and, therefore, no victory. They are certainly welcome to take pleasure in the outcome, but they shouldn’t get a pass on this disapproval of the winning strategy.
As premier, NDP Leader Rachel Notley was critical of what was, at the time, Bill C-69. It’s fair to say, though, that had she been re-elected in the 2019 election, she would not have taken the fight to the courts. The NDP viewed Jason Kenney’s court battles as unnecessarily antagonistic, not to mention a waste of time and resources. They were explicit with such allegations when the Kenney government lost its constitutional challenge of the federal carbon levy.
Oddly enough, current UCP Leader Danielle Smith also viewed these court challenges as a waste of time and resources. Unlike Notley, however, Smith viewed this approach as not nearly antagonistic enough.
This morphed into one of the chief (non-COVID-related) arguments from the UCP’s right against Kenney’s leadership: that despite his rhetoric in the 2019 election about standing up to Ottawa, he simply wasn’t tough enough.
Smith herself articulated this viewpoint when, during her leadership campaign, she unveiled her proposed Alberta Sovereignty Act. The act, she said, would be a new and effective means of dealing with federal overreach, as opposed to the two failed preceding approaches.
The “NDP approach,” she argued, involved merely following along with Ottawa’s plans. The “establishment UCP approach” was nothing more than angry letters and prolonged and pointless court challenges. Her preferred option was to somehow prevent federal policy from applying in Alberta to begin with.
As we know, despite the passage of a version of the Sovereignty Act, there is no federal policy that has been rendered null and void in Alberta, nor does there seem to be much belief anymore that such a thing is even possible.
So now there is purpose and value in fighting the federal government in court and ensuring that Ottawa, as the current premier put it, stays in its lane. But that was true all along.
Energy industry ‘still digesting’ impact of Supreme Court’s decision on Bill C-69: CAPP president
‘Massive win’: Premiers jubilant after Supreme Court finds federal environmental impact assessment law unconstitutional
Braid: Smith is ecstatic as a horrible federal law finally gets the trashing it deserves
Varcoe: ‘Stay in your lane’ — After victory against Bill C-69, Alberta emboldened in feud with feds
Kenney may have overpromised and underdelivered when it came to fighting Ottawa. However, Kenney at least understood that there was a mechanism for holding Ottawa to account and was prepared to make use of that.
Albertans’ fondness for the courts and the Constitution may now be at somewhat elevated levels, but the cynical view that we needn’t even bother pleading our case definitely undermined public confidence in these institutions.
As we can see now, it’s also an approach that would have harmed Alberta’s interests.
“Afternoons with Rob Breakenridge” airs weekdays from 12:30 to 3 p.m. on QR Calgary