Alberta’s top court said Tuesday that the federal government’s environmental impact law is unconstitutional and Ottawa almost immediately announced its plan to appeal.
The Alberta Court of Appeal’s strongly worded opinion said the Impact Assessment Act is an “existential threat” to the division of powers guaranteed by the Constitution and has taken a “wrecking ball” to Constitutional rights of the citizens of Alberta and Saskatchewan.
The majority of the judges sided with Alberta, arguing that the legislation allowed Ottawa to put provinces in an “economic chokehold” and give it the means to choose winners and losers between them.
Prime Minister Justin Trudeau, later in the House of Commons, said that the law delivered on a promise to reform a “broken system and restore public trust in how decisions about major projects are made.”
“We will be appealing this decision,” he said.
The Alberta government, calling it a Trojan Horse, had challenged the act over what the province argued was an overreach into provincial powers. It asked the Appeal Court for a reference, or an opinion, which is not a binding decision and is used to guide governments in determining a law’s meaning or constitutionality.
The act, given royal assent in 2019, lists activities that trigger an impact review and allows Ottawa to consider the effects of new resource projects on a range of environmental and social issues, including climate change.
Alberta argued the law could use those concerns to greatly expand the range of federal oversight into areas of provincial jurisdiction.
The 204-page opinion said that legitimate concerns about the environment and climate change should not override the division of power.
“If the federal government believes otherwise, it should make the case for an increase in its jurisdiction to the Canadian public.”
A fourth judge signed off on that opinion with the exception of one section.
In a dissenting opinion, Justice Sheila Greckol said the federal environmental impact law is a valid exercise of constitutional authority.
“The complexities and the urgency of the climate crisis call for co-operative interlocking environmental protection regimes among multiple jurisdictions, each functioning at its highest and best within their constitutional jurisdiction,” Greckol wrote.
University of Calgary environmental law scholar Martin Olszynski pointed out the Alberta court also found federal legislation on carbon pricing unconstitutional, a decision the Supreme Court later overruled.
Olszynski suggested the Alberta court has concluded the federal government can’t decide on its own when national interests are at stake.
“They feel it is not OK for the federal government to assess projects simply because they have some adverse effect on federal jurisdiction,” he said.
“We seem to have the Court of Appeal imposing a judicial threshold for how much harm (Ottawa) has to tolerate.”
Olszynski added that much in the court’s opinion made speculative points about the danger of stranded assets in the oilpatch, the advantage to foreign producers if Alberta oil isn’t developed and the likely length of time it will take to transition away from fossil fuels.
“It suggests there’s something extrajudicial about the reasoning,” he said.
University of Ottawa law and economics professor Stewart Elgie said he expects the opinion to be overturned.
“(It) flies in the face of the Supreme Court of Canada’s 1992 decision upholding federal environmental assessment legislation as constitutional,” he wrote in an email.
“Ottawa has been assessing major projects across Canada for 30 years, as have provinces, and the sky hasn’t fallen.”
Duane Bratt, a political science professor at the University of Calgary, called the opinion a win for Alberta’s United Conservative government, which has characterized the law as the “No More Pipelines Act.”
But he added it may not do Alberta much good, since the court was careful to talk only about “intra-provincial” projects.
“Based on the (opinion), the Alberta government can build as many pipelines as they want, as long as they stay within the province of Alberta,” Bratt said. “I think the Supreme Court will uphold this.”
Meanwhile, Alberta Premier Jason Kenney was jubilant.
“I’ve been waiting for this day for a long time, and it really matters,” Kenney said in Calgary. “It matters for people who have been struggling in this province, it matters for the future of our economy, it matters as to whether or not this is actually a functioning federation.”
New Democrat Opposition leader Rachel Notley agreed the opinion was a provincial win, saying the legislation as it exists doesn’t guarantee reasonable timelines and gives too much discretion to the federal minister.
Federal Environment Minister Steven Guilbeault, in a joint statement with Justice Minister David Lametti, defended the act.
“This act put in place better rules for major projects that restore trust, protect the environment, advance reconciliation and ensure good projects can move forward in a timely way.”
There were 17 interveners in the case.
Alberta was supported in its challenge by the governments of Saskatchewan and Ontario, as well as three First Nations and the Indian Resource Council.
Seven of the interveners, including a wide array of environmental and legal groups as well as other First Nations, were in support of Ottawa.
This report by The Canadian Press was first published May 10, 2022.
— With files from Dean Bennett in Edmonton
Colette Derworiz and Bob Weber, The Canadian Press
Calgary man who admitted to participating in terrorism activity to be sentenced
CALGARY — A man who admitted to terrorism-related acts with the militant group Islamic State is to be sentenced today in a Calgary courtroom.
Hussein Borhot, who is 36, has pleaded guilty to one count of participating in terrorism group activity between May 9, 2013, and June 7, 2014, as well as to kidnapping for a terrorist group while in Syria.
RCMP arrested him in July 2020 after a seven-year investigation.
An agreed statement of facts read in court last month said Borhot travelled to Syria through Turkey to join the Islamic State.
The statement said he signed up as a fighter, received substantial training and excelled as a sniper, but did not tell his wife or father before the trip.
Court heard that Borhot revealed much of the information to an undercover officer after he returned to Canada.
This report by The Canadian Press was first published May 26, 2022.
The Canadian Press
Cheese not on the table in Canada-U.K. trade talks as Britain seeks market access
OTTAWA — The British foreign secretary has often been mocked for her preoccupation with cheese. It started eight years ago when Liz Truss expressed outrage in a speech to her party’s annual conference.
“We import two thirds of our cheese,” she raged. “That is a disgrace.”
Now Truss is facing another battle over cheese, this time with Canada.
Britain wants greater access to Canadian markets for more than 700 varieties of cheese including Stilton, Cheshire, and Wensleydale, a crumbly variety originating from Yorkshire.
But Ottawa has made it clear it does not want to see more British cheddar, let alone artisan varieties such as stinking bishop, renegade monk and Hereford hop, on Canadian fridge shelves.
During the first round of negotiations of the U.K.-Canada trade deal, Canada told Britain that a larger quota for British cheese is not on the negotiating table.
When it was a European Union member, Britain was part of the Comprehensive Economic and Trade Agreement with Canada, giving it some access to Canada’s cheese market.
After the U.K. left the EU, a “continuity agreement” with Canada was swiftly put in place to maintain the CETA arrangement until a bilateral trade deal could be struck.
Ralph Goodale, Canada’s high commissioner to the U.K., said if Britain wants more access to Canadian markets for its cheese as part of a bilateral free-trade agreement, it will have to knock on Brussels’ door and get its part of the dairy quota back.
“The point is we have already provided that volume in the EU deal and the British left it there without taking it with them,” he said in an interview. “That’s an issue they need to resolve with the Europeans because the Europeans have their quota.”
Goodale said the U.K.’s request for extra access for British cheese — on top of the access given to the EU — is “what the Canadian negotiators consider to be pretty much a dead end.”
“You are talking about a double concession — one we have already made to the EU and the request is being made by the U.K. for yet another one on top of that,” he said.
The high commissioner said Canada values its trading relationship with the U.K., adding that he is confident that a mutually-beneficial trade deal will be reached.
But if Canada allows the British to export more of their cheese it would involve “a major commitment of compensation to dairy producers” in Canada to make up for lost incomes.
In 2018, after the United States-Mexico-Canada Agreement gave the U.S. fresh access to the Canadian dairy market, Prime Minister Justin Trudeau said he would compensate Canadian dairy farmers.
Canada’s dairy industry was worth over $7 billion in 2020, according to the Canadian Dairy Commission’s annual report.
There are over 10,000 dairy farms in Canada — most of them in Quebec and Ontario — with an average of 92 cows per farm, it said.
Until at least the end of next year, Britain will be able to keep exporting its cheese to Canada under the trade continuity agreement, the U.K.’s trade department said.
This allows U.K. cheese exporters to access the Canadian market tariff-free under the EU portion of Canada’s World Trade Organization cheese tariff rate quota.
As part of the 1995 WTO agreement on agriculture, Canada established tariff rate quotas for cheese and other dairy products. The quotas set out quantities of dairy that could enter Canada with little or no duty.
For Britain, a fully fledged free trade deal with Canada is crucial after Brexit left it looking for fresh tariff-free markets.
“We want to negotiate an ambitious and comprehensive new agreement with Canada that will strengthen our close and historic bilateral trade relationship,” said a U.K. government trade spokesman in a statement, adding the relationship was worth about $34.5 billion in 2021.
In March, U.K. Trade Secretary Anne-Marie Trevelyan flew to Canada to announce with Canada’s Trade Minister Mary Ng that bilateral negotiations had officially begun.
In a speech in the House of Lords in London earlier this month, Goodale reported on progress in the talks, saying that “both sides are optimistic that, as good as CETA and the continuity agreement were, we can do better still when Canada and the U.K. negotiate a deal face-to-face, directly with each other.”
Like Goodale, Ng said Canada is confident a free-trade deal with Britain will be reached, enhancing co-operation in a number of areas, including on renewables, sustainability and the digital economy.
“Canada values the relationship with the United Kingdom. They are … an important trading partner and a trade agreement with the U.K. will be very good for Canadian businesses,” she said in a phone interview from Thailand last weekend.
But she was also firm about the need to protect Canada’s dairy producers, and that means keeping more British cheese out.
“I have been very clear, our government has been very clear, that we will not provide access to our supply-managed sector,” she said. “We have been clear about that from the get-go.”
The Canadian dairy sector now produces 1,450 varieties of cheese, including ewe, goat and buffalo varieties, as well as the cheese curds used in the Québécois dish poutine.
At least half of Canada’s cheese is made in Quebec, which is home to a number of artisan varieties including bleu l’ermite, or blue hermit, and Oka, a popular semi-soft rind cheese.
Pierre Lampron, president of the Dairy Farmers of Canada, has made it clear he will fiercely protect Canadian cheese from British interlopers.
Lampron said he had “validated that the issue of access to the Canadian dairy market was not on the agenda of these trade talks.”
Canada’s protectionist stance toward its dairy industry may have pleased farmers. But it has caused some tension with close allies.
Earlier this month, New Zealand launched a formal trade dispute against Canada, accusing the federal government of breaking promises to give access for dairy imports under the Trans-Pacific Partnership agreement.
The Biden administration also recently said it was asking for a second dispute settlement panel under the U.S.-Mexico-Canada Agreement to review a trade dispute with Canada over dairy import quotas.
This report by The Canadian Press was first published May 26, 2022.
Marie Woolf, The Canadian Press
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