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Are federalism and climate change competing (and irreconcilable) existential threats to Canada?

Jul 28, 2022

Time: 37 min  Date: 2022/07/28
 

 

Osler’s Martin Ignasiak, partner, Regulatory, Environmental, Indigenous and Land, joins Pat in the aftermath of the Alberta Court of Appeal’s advisory opinion that the federal Impact Assessment Act poses an existential threat to the division of powers set out in the Canadian Constitution and is therefore unconstitutional. The pair discuss the history of environmental assessment laws in Canada, their impact on resource development projects, and where the debate is headed. They also explore why environmental regulation is such a tricky issue in Canada and how it all relates to discussions about tackling climate change.


ESG Explorer Podcast

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From evolving regulatory requirements and investor activism to the physical effects of climate change on business operations and more, Osler’s newest podcast, ESG Explorer, looks at the developments and issues affecting your business. Alongside knowledgeable guests from Osler and across the business world, Osler partner Pat Welsh guides listeners through the critical topics modern organizations are facing.

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Host

Patrick Welsh
Patrick G. Welsh
Partner, Regulatory, Environmental, Indigenous and Land; Litigation
Toronto

Guests

Martin Ignasiak
Martin Ignasiak
Partner, Regulatory, Environmental, Indigenous and Land
Calgary

Transcript

[MUSIC PLAYING]

PATRICK WELSH: Welcome to the ESG Explorer podcast brought to you by Osler, Hoskin, and Harcourt. This show explores all things ESG, Environmental, Social, and Governance, that are impacting Canadian businesses. This podcast is for the curious, not just for the converted. I am Patrick Welsh, a partner in Osler's Regulatory, Environmental, Indigenous, and Lands group. Now, let's go exploring.

PATRICK WELSH: On May 10th, 2022, the Alberta Court of Appeal issued its advisory opinion regarding the validity of the Federal Impact Assessment Act. In a 4-to-1 decision, the majority opined that the Impact Assessment Act is unconstitutional. In its written reasons, the majority of the Alberta Court of Appeal wrote that climate change constitutes an existential threat to Canada.

But climate change is not the only existential threat facing this country. The Impact Assessment Act involves another existential threat, one also pressing and consequential, and that is the clear and present danger this legislative scheme presents to the division of powers guaranteed by our Constitution and thus to Canada itself.

To help us understand the Impact Assessment Act and this apparent collision between climate change laws and the Canadian Constitution, I'm delighted to welcome Martin Ignasiak to the podcast.

Based in Calgary, Alberta, Martin is the national co-chair of Osler's Regulatory, Environmental, Indigenous, and Land Group and has extensive experience in developing and executing strategies for obtaining necessary regulatory approvals for large-scale industrial projects, including oil sands facilities, coal mines, pipelines, and electric generation facilities. Martin has appeared before all levels of court, including the Federal Court, Federal Court of Appeal, and Supreme Court of Canada. Thanks for joining us, Martin.

MARTIN IGNASIAK: My pleasure. Thanks for having me.

PATRICK WELSH: So first off, Martin, you and I are both lawyers, but I'm hopeful that we can break down this important decision from the Alberta Court of Appeal in a way that didn't require you to write the LSAT and go to law school. So maybe briefly, you can start with what is an advisory opinion and what did the court find here.

MARTIN IGNASIAK: Sure. So this is what's typically called a reference case. And what that means is, it doesn't get in front of a court like the normal court of appeal case, which is an appeal from a lower court. This actually stems from the last election in Alberta. The provincial government, now the UCP, or United Conservative Party, promised to bring a reference as to whether the Impact Assessment Act, otherwise referred to as Bill C-69 by many, was constitutional or not.

So upon coming into government, they issued an order and counsel from cabinet asking the Alberta Court of Appeal to consider this as a reference. So the Alberta Court of Appeal struck a panel of five judges to hear arguments from Alberta and other parties. A number of interveners participated as to whether or not the Impact Assessment Act was constitutional or not, and they issued their decision. We have four judges on the majority side and one on the minority side.

But being a reference case, it's important to understand, like you said, that this is an advisory opinion. It doesn't mean the law is struck down. It doesn't mean you don't have to comply with it. It's simply the court's opinion, and it doesn't have legal effect. But it is important because it's the views of one of the highest courts in Alberta. And Canada has indicated it's going to appeal. So this will go to the Supreme Court of Canada.

And whatever the Supreme Court of Canada decides, the federal government will have to respond to that. And so as is convention in Canada, if the Supreme Court of Canada determines that part or all of that act is unconstitutional, then the federal government will have to come up with a plan to take steps so that our laws are consistent with that opinion from the Supreme Court of Canada.

PATRICK WELSH: OK. So now let's get into that act. What is the Impact Assessment Act? And where does it fit within Canada's regulatory regime for projects?

MARTIN IGNASIAK: Well, great question. So the Impact Assessment Act is one in a line of federal pieces of legislation meant to look at environmental issues federally. It's referred to often as an umbrella act. And the reason I say that is because historically, the federal government, when it comes to environmental issues, has regulated in those areas for which it's responsible.

So for instance, fish and fish habitat is something that we know the federal government has jurisdiction over. But over time, what's happened is, we've had the Department of Environment Canada or now ECCC, Environment and Climate Change Canada. And what we have now is that they really look at more and more projects.

And regardless of whether the federal government has an authority to issue a permit, they want to look at the environmental effects of a number of different projects on the basis that environmental concerns are everyone's concerns and they're going to look at it. So that's what the Impact Assessment Act is, it's really meant as the centerpiece of federal legislation to determine whether certain projects should or shouldn't go ahead because of environmental issues.

PATRICK WELSH: And I think, Martin, you mentioned that the Impact Assessment Act is a statute with a history of previous and predecessor statutes. Can you give us maybe a bit of history as to this breakdown of federal review over projects that may have either entirely provincial impacts or provincial impacts that may impact either other provinces or Canada as a whole?

MARTIN IGNASIAK: Yeah. So great question, Patrick. And I do think the history is really important for this topic. And I think a lot of people are tripping up over the history a little bit. So let me get into that. Historically, we had something called the guidelines order, which I guess many would refer to as environmental assessment light in the federal regime.

But the first real significant legislation to deal with environmental issues in this way or to study the environmental impacts of different projects, the original Canadian Environmental Assessment Act. That was introduced by the Mulroney government in the early '90s. And it created a system which put simply was that if you had a intra-jurisdictional project, so a project entirely within a province, for instance.

And so we're not including here big transmission pipelines like Gateway or Trans Mountain that cross provincial boundaries. And it's important to understand that even the recent court of appeal reference decision didn't impact those types of projects because everyone agrees when you have those inter-jurisdictional projects across boundaries of provinces, the feds do have jurisdiction. The federal government does. And no one is challenged at it. And the court didn't find otherwise in this case.

But for other projects, a mining project or a major electric generation project or anything of that nature that's entirely within a province, the way the original Canadian Environmental Assessment Act worked was that if you needed a federal permit, you had to undergo the process in the Canadian Environmental Assessment Act. And that was based on the requirement of needing a project. That created some things that some people found strange.

For instance, in Alberta, a landlocked province. By far, the biggest federal authority for resource projects was the Department of Fisheries and Oceans Canada even in Alberta because many of these projects impacted streams or rivers or things like that. And when you affected fish or fish habitat, you needed a permit from the Department of Fisheries and Oceans that would trigger the application of the Canadian Environmental Assessment Act.

There were significant amendments made, or I think you could say a rewriting of the Canadian Environmental Assessment Act in 2012 under the Harper government. So the original Canadian Environmental Assessment Act was in place for quite some time, 20 years. And then under the Harper government, we came up with what's called the Canadian Environmental Assessment Act 2012, or CEAA 2012. That was a game-changer.

And I think one of the great ironies for people like me who practice in this area is, while the front pages of many national newspapers and political shows talked about that government, the Harper government gutting environmental laws in Canada, I think that was really an unfair characterization.

I think the opposite is quite true. The Canadian Environmental Assessment Act 2012 put in by the Harper government looks a lot more like the Impact Assessment Act that we're talking about today than it looked like the original CEAA. And the reason I say that is, it moved away from this trigger requirement and instead came up with this concept of a project list. And if your project was on that list, whether or not you needed federal approvals, you were potentially subject to that act.

So it was a game-changer in that respect and actually significantly expanded the scope of the Canadian Environmental Assessment Act compared to what it was previously and was a major, I think, precursor to the Impact Assessment Act.

PATRICK WELSH: So given all that and given that significant changes that were part of the Canadian Environmental Assessment Act 2012, why did the Impact Assessment Act come about? Why was there a need to make changes to such a significant piece of legislation already?

MARTIN IGNASIAK: I think that, in a nutshell, in the legal world, we say bad facts create bad law. I think it's fair to say in political world, the same thing applies. And so while the Canadian Environmental Assessment Act 2012 was much more expansive in scope than the original CEAA and I think was a concern to many of us who practice in this area, the reality is, publicly, the previous government took positions strongly in support of major natural resource infrastructure projects, including major pipelines like Gateway and PMX.

And I think that part of the problem there was that when that government took strongly supportive positions publicly on those projects before they were subject to independent assessment by the then National Energy Board and a review panel under the Assessment Act, I think that by doing that, they created a perception, probably real, that they were going to approve these projects regardless.

And I think what that did was, to many people, delegitimize those review processes. It's kind of like walking into a Criminal Court and a judge says, hey, look, I know you're guilty, and I'm going to sentence you, but before I do that, why don't you tell me why you think you're not guilty? And so that's really what happened. I think it raised serious questions about these processes.

And I think the liberal government coming into power in 2015 recognized that concern that people had. And they acted on it and used it to their advantage. And as a result, upon being elected, they had to do something. So they came up with the Impact Assessment Act, which I think is not really new compared to CEAA 2012 but certainly adds a lot more process to what was originally contemplated in CEAA 2012.

PATRICK WELSH: Well, that's a helpful background. And I know we've talked a little bit about jurisdiction and federal and provincial responsibilities. And maybe we should have asked this question at the outset, but maybe you can help our listeners understand a little bit more. Why is regulation of the environment projects that may impact the environment such a tricky issue in Canada?

There's a decision that is referenced quite frequently in this Impact Assessment Act reference called old men river that said, the environment is a constitutionally abstruse matter which is not comfortably fit within the existing division of powers without considerable overlap and uncertainty. Can you explain what the court meant by that?

MARTIN IGNASIAK: Yeah, absolutely. And that's a really important decision. And they went to talk about something that we'll talk about more, I'm sure, which is the potential for environmental matters to really become a constitutional Trojan horse. And the reason the court said that at the time is, they were looking at the guideline orders that predated CEAA. And at issue, there were certain federal permits.

But the issue is this. The Canadian Constitution is quite simple at least at the outset when it comes to determining whether a province or the federal government is responsible for something. It has a list for each. And the list has things. Fisheries and oceans is on that list. And that's ascribed to the federal government. Makes it very clear when it comes to fish and fish habitat, the federal government has jurisdiction.

Local civil works is something that belongs to the province. So there's a list. A few things are not on that list. No one, when they drafted the Constitution, included the environment as a specific matter. So the environment is not listed. Another thing that is not listed that everyone thinks is very important is, for instance, occupational health and safety or workplace health and safety. That's not listed in the Constitution.

And so for these items that aren't listed, there has, of course, been a greater number of disputes as to who should be regulating when it comes to those issues. And that's what makes it complicated is that it hasn't been listed explicitly in our Constitution.

PATRICK WELSH: No, that's very helpful and helpful background, especially for our listeners who may not have done any common law or any familiarity with the Canadian Constitution. So now let's get into it a little bit in terms of the challenge to the Impact Assessment Act. Who brought this and why? You alluded to a little bit some of the political context. And maybe I can read a few tweets before you answer the question.

I know and you may have been aware that the Alberta Premier, Jason Kenney has referred to this law as the No More Pipelines Law. On June 21st, 2019, Jason Kenney tweeted, "Now the Senate has given final approval to Bill C-69 by a vote of 57 to 37, stripped the amendments put forward by the government of Alberta and business groups. This means the No More Pipelines Law will become law. A bad day for our economy and the Canadian Federation."

September 2019, Kenney stated that, "Today we launch our challenge against a piece of legislation that will have devastating impacts on Canadians. I look forward to Alberta's interests being defended in court."

And then finally, a day after the decision came out, Kenney tweeted, "Trudeau's No More Pipelines Law was an attack on Canadian federalism, the Constitution, and our economy. Yesterday's historic Alberta court decision was a huge win not just for Alberta but for Canada." So, again, there's obviously a political context to this. Maybe you can give our listeners a bit more of a background on that.

MARTIN IGNASIAK: Yeah. Patrick so that's great. The reference to the No More Pipelines Law is one that, as a lawyer, bugs me a little bit. When this legislation was proposed, Bill C-69, a number of companies, including TC Energy and Enbridge, said, look, if you pass Bill C-69, it's going to be extremely difficult for us to ever build a major transmission pipeline in this country.

And so many people do call it the No More Pipelines Law. And obviously, pipelines are a concern because all of our export pipelines are full to the brim. And I think if you let market forces decide it, there's no doubt we would have more export pipelines. So there is an economic case to build them but no one's proposing any more right now because our regulatory processes for these major pipelines were always very difficult.

And I think many of those companies and, for instance, the Alberta government call this a No More Pipelines Law because the processes it establishes and the requirements it establishes are so onerous that no one is going to go through those processes. And so time-consuming, most importantly, that no one's going to go through those processes.

And an 8 to 10-year approval process to build a pipeline, it doesn't make sense for investors to spend hundreds of millions of dollars without knowing what the result will be and when your best bet is you might start construction in 10 or so years. So that's why it's called the No More Pipelines Law.

But it's not really a legal point because, as we talked about earlier, when it comes to those pipelines that cross provincial borders, no one disputes the federal government has jurisdiction. That's clear in our Constitution. And that's also why the Alberta Court of Appeal didn't strike down that aspect of this law. The federal government has the authority to determine how to assess and regulate those sorts of pipelines.

So that name, while commonly thrown around, doesn't get to the thrust of what the Court of Appeal was talking about, which is how this legislation applies to pretty much every other project that doesn't cross a provincial boundary.

PATRICK WELSH: So what are some of the practical and real-world concerns about the Impact Assessment Act that the court identified and perhaps some of the acts opponents have identified?

MARTIN IGNASIAK: Yeah. Look, so what this law does is, like CEAA 2012, like the law put in by the Harper government, it contains a list of projects that the government comes up with. That includes, for instance, any fossil fuel-fired generation plant for electricity over 200 megawatts.

It includes most types of mines. Whether or not they need federal permits or not, whether or not those gas plants for electricity need federal permits or not, they are listed as being included. So if you want to do a gold mine, a metal mine, an oil sands mine, obviously, an iron ore mine, rare Earth mines whatever they are, you're going to be caught by the list in that legislation, and you're going to have to go through an assessment.

Those projects, many of them, if they didn't require any other federal permit, for instance, they don't require a fisheries permit, they're not subject to federal environmental legislation but for this legislation. So I think the question comes up when you come up with that list where do you draw the line in terms of what you include.

And you can see if the Federal government is free to just add projects to that list that it thinks have environmental implications, then that list can become pretty broad and result in the federal government having a say in pretty much any project in a province.

PATRICK WELSH: So beyond federal intervention in projects that arguably only have a provincial element to them, what do you say to some of the commentary about the potential for delay and uncertainty and some of the other concerns that may be raised about the act itself?

MARTIN IGNASIAK: Look. So from my point of view, we can have this debate about whether the Impact Assessment Act and the Canadian Environmental Assessment Act 2012 before it are constitutional or not. I think there's serious constitutional issues.

But aside from all that, regardless of whether they're constitutional or not, the process under the Impact Assessment Act simply takes too long and requires too much information from proponents that's not really relevant to the project itself. And those are major policy problems for resource developers in Canada. And regardless of this constitutional issue, in my view, for Canada to remain competitive, those problems have to be fixed regardless of these constitutional issues.

In Canada, if you go to the impact assessment agency website today and you look, they say it takes at least five years to approve a mining project. The reality is, it takes closer to 10. The government of Canada can talk about a rare Earth policy and critical minerals. None of that's going to work until you fix this because no one who's investing in a mining project is going to invest in Canada when it takes 10 years to get to a yes or no when they can go to other jurisdictions and it takes 18 months or two years.

And it did use to only take two years in Canada. And I'd argue that the outcomes of those reviews were probably better than the ones we're getting today. So that's a major policy issue outside of the constitutionality question that I think we have to look at and that I think is a major question for Canada's competitiveness.

PATRICK WELSH: That's right. And I think the majority of the Alberta Court of Appeal said, in the commercial world, no responsible investor is willing to wait for years, much less indefinitely, for an answer on whether required approvals are forthcoming. And they commented that uncertainty infects every step of this process.

Now, those are commercial concerns and obviously ones that are very important for resource development. But, of course, there's an elephant in the room here, which is, what about climate change? You may have heard at the outset I read a quote from the majority that said that in addition to climate change, the risk to the division of powers represents a pressing and consequential existential threat.

The minority, on the other hand, in dissent pointed out or observed that within this country, Canada geese will fly over tailings ponds north of Fort McMurray without heat of jurisdiction. Fisheries will be disrupted by damming waterways or constructing pipelines that transcends provincial boundaries.

Effluent from a potash mine in Saskatchewan may affect the health of Quebecois or Indigenous peoples living downstream along a river system that has no regard for provincial borders. A proposed coal strip mining operation on the borders of Banff or Jasper National Park may affect the roaming elk herds whose breeding grounds are deep within the parks or may contaminate the headwaters of rivers meant to provide clean drinking water to Alberta ranchers and Indigenous communities.

And so on. There are multiple other examples that the court draws to pointing out essentially that environmental concerns engage the interests of a complex matrix of jurisdictions and all Canadians affecting the air we breathe, the water we drink, the food we eat, and are best addressed as the shared responsibility of all levels of government with Indigenous peoples the first among equals given their historical stewardship of and continued reliance upon the land. So I guess big picture, what about climate change? And where does this all fit?

MARTIN IGNASIAK: Yeah. So look, it's interesting to note that the last reference decision that got a lot of attention from Alberta, Saskatchewan, and Ontario courts, they all dealt with reference cases with respect to greenhouse gas pricing. That went to the Supreme Court of Canada. The Supreme Court of Canada upheld the constitutionality of that greenhouse gas pricing regime.

Put it this way. Raising concerns about the way the impact assessment applies and what it applies to does not mean one does not care about taking steps with respect to greenhouse gas emissions. I think the same criticism about the Impact Assessment Act arises in other areas.

The Impact Assessment Act process within the legislation refers to, for instance, gender identity and gender discrimination issues. As a result, if you're advancing a project, you have to address those issues in your materials. Proponents have done that for a long time many event before this legislation came in to some degree, but now it's a statutory requirement.

But the point is this. And I think it's actually what is the problem with the Impact Assessment Act is, in the Impact Assessment Act, the government of Canada has basically taken all of the social ills and challenges we have today and environmental challenges, whether it's greenhouse gas emissions, whether it's the discrimination and conditions that exist in some Indigenous communities, whether it is the impact some of these large mining projects have for advancement of women and the mining industry and others, and they've put that into the project review of individual projects as they go through.

And so I think the problem is, those aren't issues we can deal with on a piece-by-piece basis project by project. Project proponents need to know what are the requirements I have to meet. And then I can go design a project to meet those requirements. The fact that you don't do that when you look at an individual project doesn't mean the issue isn't dealt with. Those are issues that we've got a lot of tools in our toolbox to deal with.

So when we talk about water quality, for instance, in downstream receiving waters, with or without the Impact Assessment Act, water quality is looked at incredibly closely. The Department of Fisheries and Oceans looks at it incredibly closely. The provincial government or territorial government looks at it incredibly closely.

They make proponents submitting credibly technical and detailed information about every potential water release from a site, whether it's through a pipe into a river, whether an outfall, or whether it's through the ground. Whatever the case is, they look at what air emissions will contribute to the water. So all of that is looked at. And the idea that it has to be included in the Impact Assessment Act to be looked at, that's false.

PATRICK WELSH: Fair enough. And maybe it is a false distinction between the economy and the environment. So maybe we can read between the lines a little bit more. What do you think this decision is really about? The majority seems to suggest that the Impact Assessment Act is a Trojan horse and has the risk of rendering worthless the natural resources of provinces.

The minority seems to suggest that this is squarely about in-situ oil sands projects specifically. What do you think of either of those? Perhaps I'm speculating a little bit in terms of what it really means, but what are your thoughts on both the Trojan horse concept and also the Impact Assessment Act being solely focused or primarily focused on a particular type of extraction project?

MARTIN IGNASIAK: Yeah, great question. I think, first of all, I think this clearly is the Trojan horse that they warned about in old man river. You have a regime now federally the Impact Assessment Act where even if you design a project that does not require any federal permits whatsoever, you can still be subject to federal environmental impact assessment legislation. That, in my view, is the Trojan horse.

Like I said earlier, another example of what's not listed in the Constitution is occupational health and safety. But we don't have disputes over that. If you're in a provincially-regulated industry, occupational health and safety, workplace health and safety is regulated by the province.

If you will work for a federal airline, an airline regulated by the federal government like WestJet or Air Canada or many others, or if you work in banking or if you work on a federally-regulated pipeline or occupational health and safety, workplace health and safety is regulated by the federal government because they regulate those areas, including workplace health and safety.

That makes sense. And the example given in previous Supreme Court of Canada cases is railways. Railways make noise. They create dust. But it's up to the federal government to regulate the noise and dust and other environmental concerns that come from railways because they regulate the railways. And I think that's a very practical look at it.

And I think this Impact Assessment Act moves way away from that. It takes otherwise provincially-regulated projects and says because it is a mining project-- so let's say diamond mines. Because it is a diamond mining project, we, the federal government, are going to do an Impact Assessment Act review and issue a regulatory document that imposes conditions on things we think need to be managed, including noise, air emissions, and all of the things that normally would be regulated by the province. So I think this is very different from most of those areas where we see some overlap.

PATRICK WELSH: No, that makes sense. And what about the minority's comment about focus, whether perceived or not, on in-situ oil sands project in particular?

MARTIN IGNASIAK: Yeah. When I look at that minority decision and I read the comments about in-situ projects, it appears to me that what Justice Greco did in her minority decision is, she looked at CEAA 2012. And she said, well, that legislation brought in by a previous government also had a project list.

And she goes on for several pages to say that project list is very similar to the project list we see in the new Impact Assessment Act. And she goes on to say the addition of in-situ oil sands projects is something Alberta has raised. And Alberta's right. In-situ oil sands projects were added.

And actually, they were added in a bit of a twist. As you may know, the legislation only applies to in-situ oil sands projects in provinces where there is no greenhouse gas emissions limit applicable to that industry. And so I think that was a nod to the then Premier of Alberta, Premier Notley of the NDP who did put in that oil sands emissions cap which is still on the books in Alberta. So it doesn't apply to those projects as long as that cap remains in place. It's an important point that a lot of people are forgetting about.

But regardless, I think the whole analysis is a bit incorrect because my view is, CEAA 2012 is not the benchmark we should be looking at to determine whether this is constitutional. I think CEAA 2012 is unconstitutional. I think it was when it was passed. No one challenged it at the time.

We then got the Impact Assessment Act, which I think made it worse not necessarily from a constitutional point of view but certainly from a process point of view. But I think that whole exercise of comparing to the previous project list really doesn't help much in determining whether this overall regime is constitutional.

PATRICK WELSH: Now, so the Impact Assessment Act and this reference in particular as you've explained has arisen in a highly political context. But now it's in front of the courts. So I wanted to get your views on what this decision and maybe where it goes has to say about the role of the courts. First, the majority said, the ultimate responsibility for defending the dividing line between provincial and federal governments in this country rests with the courts. So that's on one hand.

I was however also struck by some of the language used in both the majority decision and the minority. For example, the majority said, parliament has taken a wrecking ball to the constitutional right of the citizens of Alberta and Saskatchewan and other provinces to have their 92A natural resources developed for their benefit. And in doing so, it has taken a wrecking ball to something else. And that is the likelihood of capital investment in projects vital to the economy of individual provinces.

On the other hand, the minority said, our planet is on fire, we need water, not heat. The majority offers heat. And they mentioned parliament is under no obligation to structure its environmental laws in ways that developers find optimal. So I was surprised by a little bit of this back and forth. So what do you think? Where does this take us in terms of the role of the courts in this highly politicized environment?

MARTIN IGNASIAK: Well, it certainly is highly politicized. And I think the worst thing for resource developers right now is how highly politicized these projects have become and how highly politicized the regulatory processes have become. And they've become so politicized that I think people have lost sight of what they're meant to accomplish.

But the point is this. Clearly, it's up to the courts to determine whether something's constitutional or not. You hope the courts will make the right decision based on solid principles and will maintain those principles. Unfortunately, though, courts can be policy-driven. And often courts will go towards decisions that they think result in the best policy. Even if perhaps that's not consistent with the best legal finding, that's something that I think peers into this a bit, into this discussion.

But certainly, in my view, this discussion about how long it takes and whether the process is good or bad, it's really unfortunate this discussion is happening at the courts. It should be happening with some solid political leadership at the provincial and federal level. So the government should be working together.

It is a problem that we have federal air shed standards and provincial ones that don't match. It is a problem that the feds and the provinces have different noise requirements and all sorts of different requirements for developers to look at, and that they can't agree on processes that are timely and come to the right decision.

So I do think there's serious constitutional issues here. But I think even more so there's extremely important political considerations and policy considerations for the country. And I'm not sure those are best suited for the courts. But it doesn't look like our governments are working together to address those in a constructive way, which I think is spilling into these court decisions. That frustration is spilling into these court decisions.

PATRICK WELSH: So where does this leave us? And in particular, businesses and prospective investors. And I know you mentioned that Canada appears to be appealing the Alberta Court of Appeal's decision. Where are we headed?

MARTIN IGNASIAK: Well, we're headed to the Supreme Court of Canada. We think that's going to take about a year. I think the only thing I'm very certain of is that it will not be a unanimous decision at the Supreme Court of Canada. There's going to be a split. I don't know if that's going to be 5-4 or a different number. And I don't know exactly what side that's going to fall on.

But it's going to go to the Supreme Court of Canada. If they uphold the legislation in its entirety, then I think that'll be that for the courts. And then hopefully, there'll be some focus on the policy political side to fix the problems with our federal environmental assessment regime. And maybe some people think there is no problem with it and we shouldn't have further development. But if that's the case, let's just say so.

So hopefully, they'll look at that and address it. And then if things get much more complicated, I think if the Supreme Court of Canada finds all or parts of this act unconstitutional, I suspect they'll give parliament six months or more to fix it instead of just quashing the law right away because that could result in some chaos. I think they'll create a bit of a timeline there to get things fixed up. But yeah, to the extent that happens, there's going to be some uncertainty in the regime again for sure.

PATRICK WELSH: So certainly, lots of things to keep an eye out for over the next year and going forward. Martin, do you any suggestions? For example, this was a, I believe, 200 or 300-page decision. It was very long. Do you have any suggestions for resources for listeners who might be interested in learning a bit more about the Impact Assessment Act or the Alberta Court of Appeal's decision or these issues generally about resource development and some of the challenges in Canada?

MARTIN IGNASIAK: Yeah. So, Patrick, of course, our group, Regulatory, Environmental, Indigenous, and Land Group at Osler, we've published a number of updates on these topics. So people can visit our website and search for those updates, and they'll see them. And, of course, they're welcome to give us a call any time. Macdonald-Laurier Institute's doing a paper they are hoping to release in the fall, kind of an all-encompassing review of this issue and regulatory issues.

And there's a number of other references out there that talk about this. I think the main thing for people is, look, the courts are going to deal with this. My view though is-- and this is as a lawyer-- while the constitutional questions are there and there are certainly legitimate issues to be argued about and the court's going to have to come down on those, I think the bigger impetus is to have a constructive dialogue nationally about what our assessment regime should look like.

The fact is, there's a lot of environmental groups that are strongly in support of this legislation. My view is, they are because they know this makes it extremely difficult to develop any project, and that's what they want. But I'm not sure that's good for Canada in the long run. Certainly, not good for investors.

So I think it would be good to have a look at that and to come up with a balanced piece of legislation that allows investors to pursue projects, many of which we know Canada needs. I mean, that's why we have a critical metal strategy is we're trying to promote development.

And while we're doing that, we're kind of shooting ourselves in the foot with this federal assessment regime we've created. So we've got to fix that. And I think that involves policy discussion. And I think it'd be nice if we could have that outside of the courts to try to get a regime that works for everyone.

PATRICK WELSH: Well, let's hope for those constructive and continuing discussions. Martin, thank you very much for your time today and for helping unpack both this decision and also the political and economic context surrounding it.

MARTIN IGNASIAK: Thank you very much. Thanks for having me.

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PATRICK WELSH: Thanks for listening to this episode of the Osler ESG Explorer podcast. This podcast is presented by Osler, Hoskin, and Harcourt LLP, a leading national law firm with a singular focus-- your business. We advise clients on an area of domestic and cross-border legal issues, drawing on the expertise of over 400 lawyers to provide the answers you need when you need them.

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The content in this podcast is for general information only and does not constitute legal or other professional advice. Specific advice should be sought in connection with your circumstances. The views expressed are those of the guests and participants and not those of Osler, Hoskin, and Harcourt LLP. For more information about Environmental, Social, and Governance matters, please visit our website at osler.com

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