Last week, the Supreme Court of Canada ruled that the federal Liberals’ Bill C-69 – the so-called ‘no more pipelines’ bill – was unconstitutional. The decision means a big change in federal-provincial relations, with the federal government much less able to inflict its extreme and economically harmful views, notably on environmental issues, on the provinces. Photo credit: The Canadian Press/Adrian Wyld
After a few tough years of provincial political instability and repeated punishments from the federal Liberal government, things have started looking up for Alberta. The most recent positive development was last Friday’s Supreme Court of Canada decision to declare the former Bill C-69, the Liberal Impact Assessment Act, unconstitutional. This legislation had been dubbed the “no more pipelines” act by former Alberta Premier Jason Kenney. Bill C-69 greatly increased the scope of the federal process to assess a proposed major project, including resource projects, mines, pipelines, highways and the like.
The Bill required such things as enhanced consultations with Indigenous groups and increased consideration of diversity and “gender” impacts – whatever that means. That was one of the problems, in that so much subjectivity was included in this supposedly fact-based assessment process that few understood how it was to be applied. All in all, it was a deliberate attempt by the federal government to slow down and discourage all of the major resource and infrastructure projects that in the past were a positive mainstay of Canada’s economy.
Alberta opposed the legislation and initially appealed to the Alberta Court of Appeal, which ruled the legislation unconstitutional in 2022 on the grounds that the federal government was treading on provincial jurisdiction. The federal government appealed the Alberta Court decision to the Supreme Court, which last week agreed with the Alberta Court’s decision. The Court ruled against the federal government 5 to 2, so it was not a close decision. Nine out of the ten provinces ended up opposing the Bill in the Supreme Court.
The current Liberal government in Ottawa has made a practice of encroaching on provincial jurisdiction, and it was by no means certain the Supreme Court would rule in favour of the provinces on this occasion. Several provinces also challenged the constitutionality of the federal government’s imposition of the carbon tax and lost. Accordingly, there was a reasonable expectation that the Court would support the federal government once again, especially as Trudeau has greatly increased the politicization of our court system by appointing so many Liberals as judges.
Federal Liberals such as Environment Minister Steven Guilbeault and Minister of Energy and Natural Resources Jonathan Wilkinson tried to downplay the decision, indicating that not much will really change and that they just needed to do a few “tweaks” to the existing legislation to get legal approval. Nothing could be further from the truth. This court decision effectively means a big change in federal-provincial relations, with the federal government much less able to inflict its extreme and economically harmful views, notably on environmental issues, on the provinces.
Although this was a clear victory for Alberta, all other provinces are winners as well since provincial jurisdiction over resources was validated by the Court. Federal Liberals will undoubtedly be much more careful in future about barging into areas of provincial jurisdiction, as they should have been all along. As there are always political elements to any judicial decision, no matter how judges try to deny it, it’s also worth questioning whether the Liberals’ current poor standing among Canadians had any impact on the decision. The Court may well have been encouraged to oppose the federal government’s position as it becomes more and more clear that the majority of Canadians do not support them.
This is also a very positive decision for the Canadian economy. Our economic success has been hamstrung by the federal Liberals’ refusal to develop our abundant natural resources at a time when they are much in demand around the world. Foreign investment has abandoned Canada as regulatory uncertainty has discouraged major projects because of the risks involved.
This decision also imperils the achievement of the federal Liberals’ declared net zero emissions targets, as future energy developments necessarily involve more emissions, even though the Canadian industry has been very successful at implementing cleaner oil and gas production techniques. Many experts believe the Liberal targets and timelines are impossible to achieve in any case, and other countries have begun to back off their own overly-ambitious timelines as the reality of the very negative economic impacts that accompany these targets becomes apparent.
The decision is also likely to be precedent-setting. For instance, given the Court’s position on resource development, how can the Liberals expect their massively disruptive “clean electricity” regulations to be considered constitutional when the constitution clearly lays out the electricity systems as the purview of the provinces? This decision will encourage the provinces to take on the federal government legally in future on such issues.
The battle is surely not over, as we have yet to see how the Liberals will respond to this decision and amend their legislation in an attempt to have it approved sometime down the road. But this is a definite change in direction for the Supreme Court, and an encouraging one that should set Canada on a more sensible path of economic growth and opportunity for all provinces, and all Canadians.
She has published numerous articles in journals, magazines & other media on issues such as free trade, finance, entrepreneurship & women business owners. Ms. Swift is a past President of the Empire Club of Canada, a former Director of the CD Howe Institute, the Canadian Youth Business Foundation, SOS Children’s Villages, past President of the International Small Business Congress and current Director of the Fraser Institute. She was cited in 2003 & 2012 as one of the most powerful women in Canada by the Women’s Executive Network & is a recipient of the Queen’s Silver & Gold Jubilee medals.