Alberta taking federal government to court over revised impact assessment law

Alberta Premier Danielle Smith speaks about introducing three new bills to do with transgender issues in Edmonton, on Thursday October 31, 2024.THE CANADIAN PRESS/Jason Franson

EDMONTON -

Alberta is taking the federal government to court, saying Ottawa has failed to follow through on what Premier Danielle Smith calls necessary changes to a law governing resource development.

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The federal Impact Assessment Act, enacted in 2019, determines whether certain major resource projects should be approved based on the environmental, economic or social impact each project might have.

Smith said Thursday the province has asked the Alberta Court of Appeal to rule on the constitutionality of the act, which was amended by Prime Minister Justin Trudeau's government earlier this year. 

Those amendments came after the Supreme Court ruled last year that the broad authority it grants to the federal government needed to be scaled back, especially the authority to regulate projects that fall under provincial jurisdiction.

Smith's announcement comes nearly two months after she issued Ottawa an ultimatum to make a number of further changes or else face legal action. 

Smith told reporters that the government failed to make the amendments she requested, and the amendments approved earlier this year didn't go far enough to bring the legislation in line with the constitutional division of powers between levels of government.

"Their amendments contain some clever word games, but still ultimately gave the federal government control over projects that fall under Alberta's exclusive jurisdiction," she said.

"The prime minister should know better by now than to think that we are bluffing, and we're confident that we are once again on the right side of this legal challenge."

Some of the amendments Smith said "did nothing to address Alberta's concerns" include definitional changes for what level, and scope, of potential impact a project must have to require federal review and approval that makes the onus of proof stiffer for Ottawa.

Another major amendment was to exempt a project's greenhouse gas emissions from consideration in impact assessments.

In a joint statement, federal Environment Minister Steven Guilbeault and Energy Minister Jonathan Wilkinson disagreed with Smith, saying the amendments made this past spring did address last year's Supreme Court decision.

"It follows closely the opinion of the Supreme Court of Canada who confirmed the jurisdictional role of the federal government on environmental and Indigenous areas of responsibility," the statement reads.

"Smith advocates for an even worse approach than the flawed process of (former prime minister Stephen Harper's government), which resulted in so many projects tied up in the courts.”

The statement also says that a legal challenge will put dozens of projects at risk, "including four in Alberta that are currently being assessed representing billions of dollars and hundreds of potential jobs in her home province."

"We want to ensure as much clarity, certainty and predictability as possible for projects, which Premier Smith threatens with her reckless political games."

Smith reiterated Thursday that she wants the federal government to take further steps to limit their involvement in the project approval process. And if the federal government still gets involved, Smith said she wants the process to be quick and minimal.

Another change the Alberta government is pushing for is the removal of the federal environment minister’s ability to be a decision-maker when it comes to the approval or denial of projects being assessed.

"I think that's a real problem with the Impact Assessment Act as it stands today," Alberta Justice Minister Mickey Amery said Thursday.

"To have a federal minister have the discretion to approve a project that falls within the jurisdiction of our provinces is inappropriate and irresponsible."

Amery said he wasn't able to provide an estimate for how much the legal action would cost Alberta, saying it depends on how long the case is before the courts.

He did say that this new legal challenge means Alberta has 10 ongoing cases and judicial reviews currently before the courts related to federal policy. The other cases range from federal gun legislation to fertilizer rules, Amery said.

This report by The Canadian Press was first published Nov. 28, 2024.