“No more pipeline bills” C-69 Alberta’s next legal hope

Recently lost a constitutional challenge to federal carbon Canada’s top prices The court, Alberta, is still in the fight against Bill C-69, Impact Assessment Act.

Billions of dollars in resources and pipeline development are not the only ones at stake. State-federal relations and alienation of the West are incidental issues that promise a long-term battle.

‘sucker punch’

Passed on June 21, 2019Bill C-69 has extended the review process for proposed energy projects by adding a new phase of front-end consultation. The law recognized a wide range of interests in appealing to the proposed project and required “indigenous knowledge” and “intersection of gender and gender with other identity factors” in approval. C-69 also gave the Cabinet final decision.

Jason Kenny dubbed C-69 as a “pipeline ban bill” before premiering in April 2019, promising a legal battle two months before the bill was passed. He called the bill “Federal Sucker Punch”, “Full Attack”, “Alberta Economic Disaster”. C-69 passed on the same day as C-48, which bans oil tankers off the coast of northern British Columbia.Alberta legally launched Challenge to both..

In February, the Alberta Government filed a proceeding in the Alberta Court of Appeals with the support of Saskatchewan, Ontario and some indigenous peoples.

Kenny said When Bill C-69 violates Section 92A of the Constitution, it “empowers the federal government to intervene and regulate resource production directly above us.

Uphill battle

Former Alberta Energy Minister Ted Morton believes Alberta is “fully justified” in a court challenge, but faces a difficult battle.

“For decades, environmental policy jurisdiction has been shared between governments at both levels. Projects that only affect the region are under state jurisdiction,” he said in an interview. ..

“But if activity in one state adversely affects neighboring states (such as water and air pollution), federal policies usually take precedence. Last month’s Supreme Court ruling on carbon taxes is now this. We are expanding our jurisdiction to include CO2 emissions and climate change. “

By June 2019, all states except BC opposed bill C-69. Morton believes that Kenny must rally his fellow prime ministers regardless of legal consequences.

“If you lose in court, you don’t automatically lose the policy struggle. [former Alberta premier] Peter Lougheed demonstrated in the 1980s, but it is possible to turn a judicial defeat into a policy victory, “Morton said.

“There is no need for economically destructive, all-purpose policies imposed by distant central governments. Constitutional and complementary federal state law to address the challenges of Canada’s climate change. There is plenty of room for constitutional law. “

Federal jurisdiction

Bruce Purdy, a professor of law at Queen’s University, believes that the C-69 is constitutionally sound for the rest of its scope.

“Sure, it’s a terrible law, but it’s not unconstitutional,” Purdy told The Epoch Times.

“The Federal Reserve has some environmental jurisdiction, even for projects entirely within the state. For example, the federal government has power over” inland fisheries, “and federal fisheries law It is based on the constitution. The Impact Assessment Act is … “drafted to protect environmental components and health, social, and economic conditions within the legislative powers of Parliament,” he explained.

“Unless Alberta can show that some aspect of the act is actually local in” facts and substance, “the constitutional objection will fail. “

In February 2020, Vancouver-based Teck Resources Ltd. launched a $ 20.6 billion oil sands project in northern Alberta due to concerns over ongoing debate over Canada’s resource development and climate change issues. I canceled it. Kenny suggested that C-69 was a factor in Tech Resources leaving the project. Purdy said that if the project were terminated by a formal ruling under the framework created by the bill, a constitutional opposition could reverse it.

“The law may be constitutional, but certain reviews reach outside the boundaries of the law and violate state jurisdiction. In that case, it is not the law itself that is not authorized, but the specific. It will be an evaluation., “He explained.

“Creating extra risk”

Canada’s investment in the oil sector fell from a record $ 81 billion in 2014 to nearly $ 20 billion in 2016, according to Richard Masson, executive fellow at the University of Calgary’s School of Public Policy. -69 said things got worse.

“Most of the people I’ve talked to think that they create extra risk rather than trying to streamline the process. And given how much risk, and certainly focused opposition, who’s big again Would you like to build a project? “Masson said in an interview.

“If you think about gateways and energy east [being cancelled and] I can’t imagine another company wanting to propose a big pipeline, as the federal government had to take over to see Trans Mountain being built, and then Keystone was canceled by the United States. .. “

Masson is a Calgary-based company, Fractal Systems Inc., which has developed a technology to reduce the viscosity of bitumen from oil sands and reduce transportation costs via pipelines. Chief Commercial Officer. He said the bill and legal objections bring uncertainty to developers.

“We are confident that doing this right is very important to the country and that developers know what the rules are before they start the process,” he says. I did.

“Perhaps the new bill or some of the provisions of the new law could be amended or abandoned by the Court of Appeals, and I’m guessing that the Fed will probably bring it to the Supreme Court. Probably a long battle before it is finally resolved. “

Central Canada Bias

Central Canada, with two judges from Ontario and three from Quebec, has a majority in the Supreme Court of Canada. Morton believes this will hurt Alberta.

“As with the carbon tax, the challenge for C-69 is not about law, but about regional differences, and the strong anti-Western prejudice of all Ottawa agencies, including the Supreme Court,” he said. Said.

“If Ontario or Quebec had as much oil and gas as Alberta and Saskatchewan, there would be no carbon tax or bill C-69, and the Supreme Court would beat them, if any. “

Barry Cooper, a professor of political science at the University of Calgary, shares Morton’s view of prejudice in central Canada.

“The Supreme Court’s carbon tax decision was not very wise, not only for legal reasons, but especially for political reasons, at least if we wanted to keep the country intact. Otherwise, the Constitution. I think it was a great decision, as it shows that we can’t trust the Supreme Court more than we can trust Congress to protect ourselves, “Cooper said in an interview.

The Alberta Court of Appeals ruled in favor of Alberta 4-1 on carbon price decisions, but the Supreme Court dismissed 6–3. Cooper hopes that Alberta will eventually fail again, despite that hope.

“The Supreme Court can say that the federal government dominates … under peace, order, good government, or anything else they want to create.”