5th December 2023


Business groups, energy companies and politicians celebrated a decision Friday by the Supreme Court of Canada that ruled Ottawa’s impact assessment law for major project approvals is largely unconstitutional.

The federal Impact Assessment Act, formerly known as Bill C-69, lays out the process for assessing the environmental impacts of major project development in the country and lists activities that would trigger a federal review.

But in Alberta, its language has been controversial since its 2019 inception.

Many industry leaders believe it’s a roadblock to development of oil and gas infrastructure and other energy-related projects.

Premier Danielle Smith and the opposition NDP oppose the bill, and former leader Jason Kenney disliked it so much he labeled it the “No More Pipelines Act.”

On Friday, the court opinion was met with approval from so many.

“I know this has boosted the positive feelings of Alberta business leaders. I’ve heard from a number of them already this morning,” said Scott Crockatt, spokesman for the Business Council of Alberta, whose membership is made of some of the province’s most prominent CEOs.

“The bottom line is that this is being greeted as really good news by a lot of businesses in Alberta, and across the country.”

In the ruling Friday, five out of seven judges said the Impact Assessment Act is largely unconstitutional, because it seeks to regulate activities that fall within provincial jurisdiction.

But the Supreme Court’s decision doesn’t strike down the law or remove the federal government’s authority to regulate projects through environmental assessment – instead, it essentially invites the federal government to tighten up the act to ensure it doesn’t step on provincial authority.

Crockatt said while large projects that cross provincial boundaries, such as transmission lines or pipelines, will still be subject to federal assessment, the ruling Friday will make a real difference for projects being proposed within the boundaries of one province.

“If you were considering, say, a petrochemical facility specifically within Alberta, with this decision today, you’re feeling you have quite a bit more ability to advance it,” he said. “It’s an overwhelming positive.”

A report from the Canada West Foundation published earlier this year found that of the 25 projects submitted under the federal Impact Assessment Act since 2019, almost all remain in the first two phases of a four-part approvals process.

But while businesses say those lengthy approval time frames get in the way of development, the reality is that industry leaders were unhappy with Canada’s regulatory system long before the current legislation.

For much of the past decade, Canada’s energy sector has complained of lengthy permitting timelines and regulatory uncertainty slowing down everything from major oil pipeline projects to the development of a liquefied natural gas industry in this country.

The same Canada West Foundation report found that under the Canadian Environment Assessment Act of 2012, which preceded the Impact Assessment Act, it took almost 3.5 years on average for projects to either receive approval or be terminated.

In a statement Friday, Canadian pipeline giant Enbridge Inc. said it has been watching the legal wrangling over the law with great interest. The company has said that Canada must improve its regulatory system if it is to have a chance at building the billions of dollars’ worth of new infrastructure that will be required to meet its net-zero emissions goals.

“We have argued throughout the process for regulatory clarity and efficiency, so project proponents can make informed investment decisions on resource development,” Enbridge spokesman Todd Nogier said.

“It is more critical now than ever that governments at all levels recognize that the status quo isn’t working.”

The Canadian Association of Petroleum Producers said Friday it applauded the “clear decision” from the Supreme Court, adding “the provinces are best positioned to review and regulate resource development projects within their own borders.”

In a statement, Alberta Premier Danielle Smith said the federal impact assessment legislation has been responsible for the loss of tens of billions in investment and thousands of jobs across many provinces and economic sectors.

“Today is a good day,” Smith told reporters later on in the morning. “The decision significantly strengthens our legal position as we work to protect Albertans and all Canadians from federal intrusion into our provincial jurisdiction.”

The Independent Contractors and Businesses Association – the largest construction association in Canada with chapters in Alberta and B.C. – told CTV News it’s with Smith on the decision.

“We are hoping it’s a signal that the pendulum is starting to swing back in terms of the desire of the public and policy makers to restrict and end projects,” Mike Martens said. “Maybe they’re starting to realize that these projects can be done responsibly with the environment being considered.”

ICBA believes the act originally created uncertainty for project proponents, which had the effect of driving away investment and killing jobs.

With files from The Canadian Press