Politics makes strange bedfellows.
When would you ever expect Danielle Smith and Elizabeth May, former leader of the federal Green Party, to agree on anything?
But they have!
Their agreement seems as unlikely as a chocolate bar giving a TED Talk on the importance of dental hygiene.
So, what is this agreement?
They both agreed that Bill C-69, the federal Impact Assessment Act (IAA), otherwise dubbed the “No More Pipelines Act” by Jason Kenney, was unconstitutional.
Both were vindicated because, on October 13, the Supreme Court of Canada ruled that C-69 was unconstitutional in its overreach to regulate activities within provincial jurisdiction.
While both Smith and May celebrate, they do so for different reasons.
Before we delve into their reasons, let’s catch up with a short history of the IAA.
We promise we’ll give you the Cole’s notes version – but it’s still a mini-series!
The History of Bill C69
Federal environmental assessments of provincial projects go way back to the 1970s, while some of us wore tie-died shirts, ponchos and bell bottoms.
In 1988, when the Federal Minister of Environment approved two dams in Saskatchewan without any environmental review, a court challenge by the Canadian Wildlife Federation successfully argued that the Minister had broken the law.
Brian Mulroney brought in the Canadian Environmental Assessment Act, or CEAA, to prevent a repeat of this situation. It ensured environmental reviews occurred whenever a project involved federal land, monies, and decisions.
Later on, Stephen Harper saw the CEAA as a threat to oilsands development.
So, in 2012, Harper overhauled CEAA to make environmental assessments more challenging to trigger, reducing the number of assessments from thousands a year to less than a hundred per year, paving the way for quicker approvals of projects.
The government liked the much-reduced workload.
After taking power, the Liberal government overhauled the legislation in 2015 and again in 2019, with the latter overhaul becoming known as C-69, the Impact Assessment Act (IAA).
This made provinces like Alberta steaming mad.
The Alberta government does not like the feds meddling, so Alberta also took the federal government to court. It won its cases before the Alberta Court of Appeal but was challenged in the Supreme Court of Canada.
The top court ruled the federal Impact Assessment Act has a few provisions that are unconstitutional and need to be revamped.
In the meantime, the Act remains in effect, and the Feds can still undertake environmental assessments if the assessment doesn’t infringe on the “constitutional division of powers.”
This means if the project impacts the jurisdiction of the feds, they can initiate an assessment; otherwise, the approval of a project is up to the province, basically a return to the equivalent of the CEAA of the 80s.
What’s old is new again. Bellbottoms seem to come back into fashion every 20 years or so.
Why are Danielle Smith and Elizabeth May So Happy?
Elizabeth May
Elizabeth May is happy because, according to her, the IAA “was a really bad law that failed to ensure review of federal projects that threaten our environment.”
When environmental assessments go from thousands a year to far less than a hundred, it makes sense why a ‘green’ leader hated the IAA.
May is happy because she says that the government can fix the law, making it better.
May wants the revamp to return to a clear assessment trigger whenever “federal lands, federal funding and federal government… as well as Species at Risk, fisheries, marine plants, migratory birds, greenhouse gases, and Indigenous peoples” are involved.
In short, she wants to “create clear criteria for reviews and make a more thorough, less politicized way to protect Canada’s precious ecosystems whenever they lie in the path of development.”
Danielle Smith
Danielle Smith sees the court decision as a big win in her ongoing anti-Trudeau, anti-Ottawa campaign.
She ran her election campaign on keeping Ottawa out of Alberta affairs, and this win gives rocket fuel to her effort to fight the feds at any cost.
Smith claimed C-69 created more uncertainty for energy businesses because regulators had too much latitude and breadth to put any project up for assessment. Essentially, she says, C-69 was scaring investors away.
Sound familiar? Can you say “renewables moratorium,” Danielle?
Now, Premier Smith thinks she can do anything in Alberta without federal meddling.
In a press conference, Smith told reporters, “I would say that if I want to build the highway between Grande Prairie and Fort McMurray … that’s within our exclusive jurisdiction.”
This is, of course, not true according to the decision of the Supreme Court.
As CBC pointed out, “a highway that likely cuts through northern Alberta Indigenous communities and crosses the Peace River would fall more squarely into the scope of federal review.”
And so the Supreme Court decision has further emboldened Smith to interpret any interference by the feds in Alberta as unconstitutional.
It’ll be interesting to see how her ‘underdog’ strategy against the feds plays out if Pierre Poilievre wins the next election.
Happy But Divergent
Even though May and Smith applaud the Supreme Court ruling, the two politicians could not be further apart in their reasoning.
As far as we can see, there is only one thing the two women have in common: vindication.
Elizabeth May said it was deeply flawed, and she “warned [the government about] before it passed in 2019.”
She was right.
And now she is happy because she hopes the Act can be rewritten ‘correctly.’
Premier Smith, no fan of environmental regulation, just wants to remove Ottawa’s say in anything affecting Alberta.
How can two people so far apart agree on anything?
But stranger things have happened.
