In 2020 Alberta Enterprise Group was granted intervenor status (in partnership with the Independent Contractors Association of B.C.) to argue on behalf of businesses. We were supporting the challenge of the Impact Assessment Act (IAA) by the province of Alberta in the Alberta Court of Appeal, Alberta’s highest court. Five judges heard arguments for a week in February 2021, and on May 10, 2022, after some 15 months of deliberation, the court ruled that the legislation was unconstitutional, as we had argued.
Now, more than ever, it is critical that Alberta has control over the key levers of its economy. That autonomy is necessary to make informed decisions that drive recovery through innovation, investment, and growth, and to fund the important public services we depend on every day. However, it is our opinion Alberta’s ability to achieve those objectives was jeopardized again — not by external economic shocks or worldwide pandemics, but by federal legislation.
Originally labelled Bill C-69, the act prevented any designated project from proceeding if it may have environmental effects, positive or negative, marginal or significant, touching on areas the legislation deems to fall within federal jurisdiction. As drafted, the IAA enumerated everything from migratory birds, fish, and aquatic species, to Indigenous peoples, to environmental impacts on other provinces (such as greenhouse-gas emissions) as falling within federal jurisdiction.
Where a project has such an effect (imagine a project that does not), the IAA empowered the federal government to step in and conduct a far-reaching inquiry into the impacts to determine whether, in the sole view of the federal government, it was in the public interest. If the federal government’s review suggests it is not in the public interest, that project cannot move forward. One expert referred to the act as a Trojan horse for the feds.
The end result is that if Alberta were to have a lithium mining project of critical importance to developing alternative energy, which may cause any minor impact on any one of the listed federal areas — for instance, if the project may increase the risk of migratory birds being struck by moving vehicles — that minor impact can be used as a justification for undertaking a comprehensive federal assessment of the entire project and shuttering the project permanently.
We argued, this is fundamentally inconsistent with our constitutional design and structure. Our constitutional division of powers expressly and deliberately divides jurisdiction over projects — called “works and undertakings” — between the federal and provincial levels of government. The federal government has primary legislative control over a range of important undertakings. However, the majority of works and undertakings are under the primary legislative control of the individual provinces — in fact, the Constitution defines them as being “local works and undertakings.”
Respecting this division of powers will not make local works and undertakings immune from valid federal laws, or vice versa. It will, however, allow the appropriate order of government to drive the environmental assessment bus in each case, with important contributions from the other, while minimizing unnecessary duplication, obstruction, and delay.
That is the embodiment of co-operative federalism, and the way our Constitution was intended to function. Ensuring that it does so is of crucial importance to Albertans and Alberta businesses who depend on a welcoming economic and investment climate to drive innovation, develop our economy and resources, create jobs, and help fund the public services we all rely on.
John Liston is the vice-president of Alberta Enterprise Group, and a St. Albert resident active in our business and charity communities.