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Opinion: Why the Supreme Court needs to uphold Bill C-69

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This week, the Supreme Court of Canada will hear arguments that will decide the future of one of the country’s most fundamental environmental oversight laws: the federal Impact Assessment Act (IAA).

Ecojustice, along with other environmental organizations, health groups, and First Nations, have intervened in the hearing to support this law against provincial attempts to undermine it. Provinces say they are acting in defence of their authority to exploit resources. But they are in denial about the severity of the environmental crises that face Canada as a whole, and about the federal government’s legitimate and crucial role in bringing them under control.

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The IAA, known as Bill C-69, has made a convenient target for conservative governments and the fossil fuel industry. The ink was barely dry on the law before the Alberta government launched a legal challenge against it. Branding the legislation as an affront to the province’s energy sector, they committed to take the federal government to court.

But the IAA hardly deserves boogeyman status and is no threat to industry or to federalism. In fact, it is mostly a patch to a Harper-era law that almost everyone agreed was inefficient and dysfunctional. It is the product of intensive debate, legislative scrutiny and give-and-take compromise in the House of Commons and the Senate. Thousands of Canadians from all backgrounds, Indigenous peoples, lawyers from Ecojustice, and the federal government, worked together to transform Bill C-69 into a law that improved, although not perfected, how environmental assessments work in Canada.

Like its predecessor, the IAA only applies to large projects with the greatest chance of impacting areas of federal concern. Even then, it lets bureaucrats exempt a project from assessment if they think its environmental effects are manageable.

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Detractors fret that the IAA recognizes that climate change not only exists (it wasn’t mentioned in the former law), but that the federal government has the duty to consider it when reviewing a project that affects its jurisdiction. This is far from a federal takeover of all greenhouse gas regulation, as the provinces seem to fear. Nor does the IAA allow Canada to dictate which projects are or are not, broadly speaking, in the public interest; its authority under the law is confined to federal effects.

Canada now faces greater environmental peril than ever. Three interconnected threats: climate change, biodiversity loss, and pollution and waste, are inflicting severe damage. These threats will not abate unless every government takes their responsibility to protect people and the environment seriously. The IAA is not perfect, but it is at least a serious attempt to discharge the government’s moral obligation to its citizens.

Decisions under the IAA, including whether the federal effects of a project are in the public interest and whether conditions should be imposed to mitigate them, might be politically unpalatable to a province or make it a bit more complicated for a proponent to do as they wish with public lands and resources. That does not make the IAA unconstitutional; it shows that it serves a purpose — environmental protection — which Canadians have the right to expect from every level of government.

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Ecojustice has a long history of protecting good environmental laws from attack. We intervened when several provincial governments challenged the federal government’s ability to put a price on carbon, and we won. Our first major case as an organization was on behalf of Friends of the Oldman River, a grassroots group of Alberta citizens, seeking a federal assessment on the potentially severe environmental impacts that would result from the construction of a megadam on the Oldman River.

In 1992, the Supreme Court of Canada issued a precedent-setting ruling upholding the constitutionality of federal environmental assessment under Canada’s first environmental assessment law. The court found, in Friends of the Oldman River v. Canada that Canada could lawfully assess the environmental impact of projects, even in relation to developments sponsored or regulated by provinces.

More than three decades later, we are going back to the future — heading to court to fight for federal oversight of potentially environmentally damaging projects. But now, the impacts of the climate and biodiversity crises are in full view, with people across Canada demanding urgent action from political leaders.

That is why we’re going to court. We need to make sure that provinces who prioritize extraction over protecting nature, preventing pollution, and ensuring a safe climate future do not stand in the way of an essential environmental law. The health of our communities, nature and the climate depend on it.

Joshua Ginsberg is director of the Ecojustice Environmental Law Clinic at the University of Ottawa.

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