Sander Duncanson
Oct. 13, 2023
Sander Duncanson, Co-Chair of Osler’s Regulatory, Indigenous and Environmental practice joined Peter Tertzakian and Jackie Forrest, hosts of the ARC Energy Ideas Podcast, for a conversation about the Supreme Court of Canada (SCC) ruling regarding the federal Impact Assessment Act (the Act).
After providing background about the province of Alberta’s legal challenge of the legislation and the reaction from provincial leaders to the result, the hosts focused on the impact of the decision.
Sander stated that the decision is significant because it delineates that the Act “…uses criteria like a project’s contribution to sustainability and whether it is in the public interest, to inform whether the federal government will ultimately approve or deny the designated project. And the Supreme Court found that, that’s unconstitutional because the federal government does not have jurisdiction to manage resource development within provinces generally speaking – that’s the provinces jurisdiction.” He also said that the federal government cannot use its jurisdiction to have an impact on “intraprovincial projects overall.”
From a regulatory risk perspective, Sander explained, one of the biggest issues for investors was the uncertainty that even if the project was not detailed in the regulations, there was discretion under the Act for the federal minister of the environment to require an assessment regardless. In light of this court decision, these projects would be subject to the provincial impact assessment process only.
This has a major impact on clean electricity regulation and greenhouse gas emission caps. “In both cases, the federal government is seeking to lower greenhouse gas emissions by singling out specific industries and there is a disproportionate impact on certain provinces based on what industries are located within the various provinces,” said Sander.
“In my view, those plans are unconstitutional and the federal government will need to seriously reconsider [how] to proceed with emission reduction[s] in light of the Supreme Court case.”
Listen to the full episode of the ARC Energy Research Institute podcast.