The decision of the Supreme Court of Canada to strike down large parts of the federal Impact Assessment Act caught a lot of people by surprise. The court hasn’t made much of a habit of rejecting the federal government’s ever-increasing encroachments on provincial jurisdiction, so this ruling is a bit of a black swan. It’d be nice if the Supremes were going to be more vigilant in future, but that’s unlikely. Colby Cosh explains why this is a “remarkable political moment”:
Environment Minister Steven Guilbeault, 3 February 2020.
Screen capture from CPAC video.
To hear the Liberals talk now, you would think that the Supreme Court’s 7–2 rebuke of C-69 was a mere bump in the road. Steven Guilbeault, the federal environment minister, appeared on CTV’s Question Period to reassure the public that the law can be “redefined” to accomplish its grandiose intentions; it’s just a matter of “course-correct(ing)” the text a smidgen in order to “comply with the spirit” of the ruling.
Here’s an idea for the minister: maybe just go ahead and comply with the ruling, period?
Comply with the spirit, he says. Having taken the trouble to decrypt the ruling, which is not exactly a masterpiece of lucid clarity, I wonder at the environment minister’s priorities. Rather than appearing on television with a bunch of happy talk, he ought to have been mopping up the seas of blood left by the court’s evisceration of his Impact Assessment Act.
In essence, the Liberals created an apparatus whereby a federal panel would perform environmental and social assessments of major infrastructure projects based on the possibility that they might “cause adverse effects within federal jurisdiction”.
The underlying pretext is that the federal government’s powers are sometimes engaged by the creation of mines, wells, roads and other such projects — even when they are confined within one province’s borders — because they can conceivably affect federal matters such as fisheries, migratory birds, Aboriginal welfare, treaty obligations and other “national concerns”.
This is true as far as it goes, but the court majority’s finding was that this constitutional pretext for creating a federal assessment scheme isn’t actually reflected in the scheme itself. The Liberals, asserting a right to investigate hypothetical infringements on the federal sphere of power, created a law that essentially allows them to veto anything that a province might want to permit.
As the law is written, the initial assessment-agency decision to “designate” a project for assessment can be based on just about anything, including “any comments received … from the public” and “any other factor the Agency considers relevant”. In the final decision-making phase, which is to be based on the “public interest”, specific federal heads of power are also cast aside: whoever makes the final call at the cabinet level is to evaluate a project for “sustainability”, for example.
