Alberta calls Ottawa’s impact assessment changes ‘unconstitutional’

The Alberta government says the recent changes to Ottawa’s Impact Assessment Act are “unconstitutional” and it’s considering challenging the legislation in court.

On Monday, Premier Danielle Smith and her ministers of justice and the environment released a joint statement calling the recent amendments an act of overreach by the federal government. The statement says the amendments as they stand put in-situ oilsands developments, major highways and power plants at risk of federal interference.

“Minister of environment and climate change Steven Guilbeault still has the ability to meddle in projects that are within provincial jurisdiction,” the statement says. “This is simply unacceptable and Alberta, when it comes to intra-provincial projects, will not recognize the Impact Assessment Act as valid law.”

Alberta said Monday it completed its review of the proposed amendments, which were introduced in Parliament at the end of April through a massive budget implementation bill.

The amendments were required because in October, the Supreme Court ruled that some sections of the Impact Assessment Act were “unconstitutional.” Some parts of the law were found to fall within federal jurisdiction, but the court said other sections were too broad.

The Impact Assessment Act (IAA), Bill C-69, came into force in 2019. It allowed federal regulators to consider the potential environmental and social impacts of various resource and infrastructure projects.

Writing for the majority in a 5-2 decision, Chief Justice of the Supreme Court Richard Wagner said the processes set forth in Sections 81 to 91 of the IAA were constitutional and could be separated out.

When the federal government first introduced the amendments, Alberta’s Minister of Environment Rebecca Schulz suggested the changes were insufficient but did not say they were unconstitutional.

“The infringements of the Constitution were woven throughout the original legislation. It’s not as simple as making a few tweaks and edits to bring this in line to respect provincial jurisdiction,” Schulz said in a statement on May 7.

That statement also said the Alberta government was not consulted on the amendments or given a heads-up that they were coming.

In response, Federal Environment Minister Steven Guilbeault said that Ottawa consulted with numerous stakeholders, including provinces and territories, on the proposed changes. Guilbeault said the government needed to pass the amendments because project proponents are considering critical mining, nuclear and offshore wind projects.

“We need many of these projects to help us make the transition that is needed to transform Canada’s economy, to create the good jobs that will be with us for decades to come, but also to achieve our climate targets and reduce our pollution levels in Canada,” Guilbeault told reporters Tuesday.

Energy Minister Jonathan Wilkinson said he spoke with Ontario and Alberta about “the nuclear provisions significantly.”

“I can’t remember a time that Alberta actually came here and proposed their legislative changes for consultation before, before they actually put them into … their legislature,” Wilkinson said Tuesday. “But certainly, there were discussions.”

Later on Monday, Guilbeault listed for reporters all the federal climate policies Premier Smith opposes.

“It seems that Premier Smith will oppose us on all things on the environment and climate change,” Guilbeault said. “It is obviously her choice.”

“Unfortunately, that doesn’t change (the risk of) climate change.”

The Mining Association of Canada said earlier this month that it was “cautiously optimistic” about the amendments, along with the promise of more efficient and timelier project permitting through a new federal office. 

“If well implemented and appropriately actioned, the amendments have the potential to result in more effectively tailored impact assessments that are appropriately focused on potential adverse effects in federal jurisdiction” said Paul Hébert, the vice president of communications with the Mining Association of Canada.