Supreme Court hearings begin on 'anti-pipeline law'

The Supreme Court will hear arguments for and against the impact assessment from March 21 to 22.

Seven of the nine justices of the Supreme Court of Canada began hearing arguments in support of the Impact Assessment Act on Tuesday, a law introduced by the federal government in 2019 dubbed the “anti-pipeline” law by its opponents .

The Government of Alberta went to court when Bill C-69 was introduced to have it struck down, deeming the law unconstitutional. The Alberta Court of Appeal ruled in favor in May 2022 by a vote of 4 to 1.

These Supreme Court hearings are the last opportunity for the federal government to defend its law which aims to give more space to environmental impact assessment in the approval of a project. major development such as an oil sands mine or the construction of a pipeline.

The judges' questions on this first day of oral argument revolved around what is the main complaint from the provinces: does the law give Ottawa a right of veto over any development project?

The judges were basically trying to find out through their questions to what extent the federal government can assess projects, major projects or large projects that pose environmental risks, and then what type of project it can assess and what type of project it cannot could not evaluate, explains master David Robitaille, legal representative for the Quebec Center for Environmental Law, one of the interveners in favor of the law during the hearings on Tuesday.

The Attorney General of Canada, along with several environmental groups, have argued that the law is constitutional because it contains specific thresholds that a project must meet to be assessed by this process.

They invited the judges to consider the constitutionality of the law itself and not its possible application.

The law is what is called in law a law of general application, that is to say that it is a law that can apply to any project, adds David Robitaille.

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“Evaluation as such does not impose conditions, it does not prevent the provinces from exercising their skills. However, in the end, when the federal government wants to impose conditions, it will be necessary to see the effect that these conditions have on projects under provincial jurisdiction and vice versa. »

— David Robitaille, professor of constitutional law at the University of Ottawa and legal representative for the Center québécois du droit de l'environnement.

Only seven of the nine justices of the Supreme Court sit for these two-day hearings on the constitutionality of the Impact Assessment Act.

Judge Russell Brown is absent due to ;an incident in which he is involved in the United States.

The first Indigenous justice to be appointed to the Supreme Court, Michelle O'Bonsawin, was removed from the case to avoid a null decision at the end of the proceedings.

In conference press release Tuesday, the Premier of Alberta expressed concern about the absence of Justice Russell Brown since he is a minority voice on the carbon tax and defending the rights of the provinces.

“We will let the proceedings take their course. However, we believe that this law is a rewrite of our constitution, especially in a context where a lower court ruled [against it] 4 to 1.”

—Danielle Smith, Premier of Alberta.< /blockquote>

Prosecutors from Alberta and seven other provinces will speak on Wednesday during continuing hearings.