Last week’s Supreme Court of Canada decision about the constitutionality of the Impact Assessment Act is not actually about impact assessment. This case is about who makes the rules in Canada.
The Supreme Court upheld that the management and development of natural resources, and some of their environmental effects, is the responsibility of the provinces and limited the federal government’s ability to impose regulations or make decisions that infringe on that responsibility. It confirmed the division of powers in the Canadian Constitution that balance local diversity with national unity.
The implication of the ruling is that the 1982 amendment to the Constitution Act, to include management and development of natural resources under provincial jurisdiction, stands. And importantly, that federal responsibilities for the environment (there are provincial ones as well) do not supersede what was explicitly agreed on in 1982.
With the Impact Assessment Act, the federal government expanded the scope of its decision-making around projects, including oilsands projects, mines and roads linked to resource developments. The federal government reasoned before the Supreme Court that because these projects would have implications for outcomes under federal jurisdiction, such as Indigenous rights, water, migratory birds and endangered species, the federal government would have its own assessment process as well as the final decision on whether a project would proceed.
This same logic underlies federal proposals for the Clean Electricity Regulations and emissions caps for oil and gas — also explicitly provincial responsibilities under the constitution.
Modern co-operative federalism “accommodates and encourages intergovernmental co-operation” but not at the expense of overriding or modifying the constitutional division of powers. This doesn’t mean that provinces have carte blanche. Where there are effects on areas of federal jurisdiction such as Indigenous people, fish, migratory birds and endangered species, or interprovincial projects such as pipelines and transmission lines, federal decision-making is permissible.
The notion of federalism in which the federal government holds the hammer on entire projects that lie within provincial jurisdiction has failed. That view brought us to a long series of court challenges and subsequent long and uncertain timelines for major projects. We need a better way. What happens if a project is approved by provincial regulators and not by federal regulators? Even if the province has the final say — those federal effects don’t go away and, most likely, neither will the court challenges.
The opinion confirms that the environment is not above the division of powers and that co-operation may be difficult — but it’s still necessary. The federal government can tax emissions; beyond that, they have to stay in their lane and work with the provinces outside those lanes. The Court clearly didn’t buy the notion that emissions are so “fundamental” that we throw out our system of government.
Co-operative federalism that involves consultation without collaboration will not achieve the fine balance between diversity and unity, and it will not be found at the Supreme Court. It will be found in the hard work of collaboration required to meet common goals in uncommon circumstances. It will be found in the understanding that national policy is not just federal policy. And national leadership can come from the provinces as well as the federal government. Collaboration may take longer, but unilateralism isn’t faster if it leads to conflict.
The message from the Court to the federal and provincial governments is co-operate. Respect each other’s jurisdiction and work together where the boundaries are not well defined.
And if either side tries to push those boundaries, the courts will push back.
Gary G. Mar is president and CEO of the Canada West Foundation. Colleen Collins is vice-president.