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21 March 2023, 8.00am EDT

Public Interest Groups at Supreme Court of Canada to Defend Federal Environmental Law from Alberta Challenge

AlbertaEnvironmental Assessment
Source: 
MiningWatch Canada — Environmental Defence Canada — Nature Canada — West Coast Environmental Law — Canadian Association of Physicians for the Environment —Canadian Environmental Law Association

Unceded Algonquin Anishinaabe Territories (Ottawa, ON) – This week, the federal government is defending its Impact Assessment Act (IAA) (formerly Bill C-69) at the Supreme Court of Canada. Last year, the Alberta Court of Appeal issued a non-binding opinion that the IAA is unconstitutional; the Government of Canada is appealing that opinion. The hearing will be held on March 21 and 22.

The IAA is the federal government’s primary tool for assessing the environmental and social impacts of major projects and proposals, such as pipelines, mines, transmission lines, and dams. It is one of Canada’s most fundamental environmental laws, and plays a key role in ensuring sound decisions over projects affecting nature, communities, and Indigenous rights.

MiningWatch Canada and Environmental Defence Canada, represented by Canadian Environmental Law Association (CELA); Nature Canada, represented by West Coast Environmental Law (West Coast); and the Canadian Association of Physicians for the Environment (CAPE) are intervening in the hearings to defend environmental protections in the IAA. CELA and West Coast are also representing themselves.

The IAA, which came into force in 2019, was an attempt to strengthen Canada’s environmental laws and fix the project review process, which had been gutted in 2012 by the government of the day. The IAA does not fully restore protections lost by the 2012 rollbacks – for example, the IAA only triggers around a dozen assessments per year, compared to thousands of projects assessed annually under Canada’s original assessment law. However, it makes important strides forward, including legally requiring assessments to consider a project’s climate impacts.

“Impact assessment is all about looking before you leap,” says Stephen Hazell, interim Policy Director with Nature Canada. “Provincial and federal governments share the legal authority to protect the environment and conserve nature. As intervenors, we will be making submissions to the court that the IAA sits squarely within federal authority.” 

While it was before Parliament, Bill C-69 was the target of massive opposition from the oil and gas lobby. Back in May 2019, Alberta Premier Jason Kenney threatened that if all the amendments to Bill C-69 demanded by the oil and gas industry were not adopted, the Province would launch a constitutional challenge on the grounds that the law intrudes on provincial rights. In February 2021 – despite many of the oil and gas industry’s amendments being adopted – Alberta did just that, arguing that the IAA goes beyond the federal government’s constitutional authority.

“For the first time, we have a law that requires the consideration of a project’s total carbon pollution before it gets approved. The Government of Alberta is attacking that, just as they have other important climate and environmental rules,” says Julia Levin, Associate Director, National Climate with Environmental Defence. “We’re in a climate emergency. The federal and provincial governments must use every tool in the toolbox to tackle the climate crisis together.”

Given some provinces’ weak environmental protection and weak environmental assessment frameworks, it is more important than ever to have strong federal laws.

“The federal government has a crucial role in safeguarding our communities, our health, and the environment where provincial governments can’t, or won’t. Ontario, for example, doesn’t even require mining projects to undergo environmental assessments, and most provinces have major gaps when it comes to cleaning up closed mines and wells and making them safe,” says Jamie Kneen, MiningWatch Canada’s national program co-lead. “We need to be able to make informed decisions to ensure that only acceptable projects go forward, and that those projects are as safe as they can be.”

“Fundamentally, affirmation that the federal government has jurisdiction to consider climate-polluting greenhouse gas emissions and Canada’s climate commitments when assessing major projects is essential to securing human and planetary health,” says Dr. Joe Vipond, emergency physician and CAPE Past President. “This view aligns with CAPE’s physician-led approach to mitigate climate change in order to protect human health.”

The Supreme Court of Canada’s hearing is scheduled for March 21 and March 22, with appearances by the above interveners scheduled for March 21. The hearing will be live-streamed here.

Background: 

About MININGWATCH: MiningWatch Canada is a non-profit organization created to provide a public interest response to the threats to public health, the environment, and community interests posed by irresponsible mineral policies and practices in Canada and around the world. It provides timely information and support to mining-affected communities and related organizations, and works for better mining-related policies.

About ENVIRONMENTAL DEFENCE CANADA: Environmental Defence Canada is a leading Canadian environmental advocacy organization that works with government, industry and individuals to defend clean water, a safe climate and healthy communities.

About NATURE CANADA: Nature Canada has been a voice for nature for more than 80 years. We are a charitable organization advocating the conservation of land and the protection of waterways, and oceans to help stop the loss of species. We facilitate mobilization among more than 900 nature organizations and 100,000 nature-lovers while helping Canadians connect to nature.

About WEST COAST ENVIRONMENTAL LAW: West Coast Environmental Law is a non-profit group of environmental lawyers and strategists dedicated to safeguarding the environment through law. West Coast works to transform environmental decision-making and strengthen legal protection for the environment through collaborative legal strategies that bridge Indigenous and Canadian law.

About the CANADIAN ASSOCIATION OF PHYSICIANS FOR THE ENVIRONMENT: The Canadian Association of Physicians for the Environment works to better human health by protecting the planet. CAPE supports physicians to be advocates for healthier environments and ecosystems, and collaborates with other organizations, nationally and internationally, to work effectively and build power together.

About CANADIAN ENVIRONMENTAL LAW ASSOCIATION: Canadian Environmental Law Association (“CELA”) is a public interest law clinic dedicated to environmental equity, justice, and health. Founded in 1970, CELA is one of the oldest environmental advocates for environmental protection in the country. With funding from Legal Aid Ontario (LAO),  CELA provides free legal services relating to environmental justice in Ontario, including representing qualifying low-income and vulnerable or disadvantaged communities in litigation. CELA also works on environmental legal education and reform initiatives.

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