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Good morning, please be seated. In the case of Attorney General of Canada against Attorney General of Alberta, for the appellant, Attorney General of Canada, Mr. Christopher Rupert, Dana Anderson, Kerry Boyd, and James Elford. For the intervener, Fyles Hills Cappell Tribal Council, Etal, Ryan Lake, and Geneviève Boulet. For the intervener, World Wildlife Fund Canada, Martin Olsinski. For the interveners, Nature Canada and West Coast Environmental Law Association, Anna Johnston. For the intervener, Atabasca, Chippewa First Nation, Eamon Murphy, and Tara McDonald. For the intervener, Eco-Justice Canada Society, Anna McIntosh and Joshua Ginsburg. For the intervener, Micah Seukri First Nation, May Price and Tim Dixon. For the intervener, Canadian Association of Physicians for the Environment, Sharon L. Measher, Sean C. Fluker, and David V. Wright. For the intervener, Oceans North Conservation Society, David W. L. Vu. For the intervener, Canadian Environmental Law Association, Etal, Joseph F. Castrulli and Richard D. Lindgren. For the intervener, First Nations Major Projects Coalition, Jesse McCormick, Ryan Beaton, and Ronald Stevenson. For the intervener, Centre Québécois du droit de l'environnement, M. David Rabitaille and M. Marc Béchay. For the intervener, Lumie Nation, John W. Gallus and Courtney Jacqueline. Mr. Ruppert.
Thank you, Chief Justice, Justice of the Court. I appear on behalf of the Attorney General of Canada with my colleagues, Ms. Anderson, Mr. Boyd, and Mr. Elford. Just to give you a bit of a roadmap where I'll be going this morning, I'm going to start with a review of the case law from this court with respect to the analytical framework used in the epithin substance analysis.
going this morning.
We will then turn to the IAA and the regulations and spend some time with those because the wording that Parliament has chosen is quite important in this matter. We'll then turn to the characterization, exercise, and then classification. Just before we start, I have a few opening points that we suggest are important to keep in mind as we go through the analytical exercises today. The key point in our submission to keep in mind is the distinction between the determination of whether a level of government can legislate, that'd be the Pith and Substance Analysis, and relevant factors a decision maker can take into account in making decisions concerning that legislation.
So you mean that if you have authority over birds, you can decide on a completely different basis? That makes a lot of sense.
No, that's not what I was saying, Justice Roe. What I was saying is that if Parliament has proper authority over a subject matter, that is different from if a decision maker takes into account something which arguably is either irrelevant or is beyond the scope of the jurisdiction of the legislation that is anchored in the powers of Parliament.
But I mean, if the policy of the government of Canada is there will be no more petroleum development or no more mines that produce coal, and you say, oh, I'm doing this because I have authority over fish, are you really regulating fish or are you regulating mining? I mean, it's absurd what you're saying.
Well, Justice Roe, hopefully I'll be able to change your mind on that, but that's not what our position is. And that's not what the Act says. And hopefully as we go through that, I'll be able to show you that what the Act really shows is that the federal parliament is simply exercising the jurisdiction it has under the Constitution.
within effects within that jurisdiction. It's not stopping projects. It's not regulating mines, as you say. It deals with very specific and very limited areas that are within the federal jurisdiction.
Mr. Hope, I hope that you will address because you are referring to effects, but is it the position of the Attorney General of Canada that Parliament may validly legislate on incidental effects without any threshold regarding the significance of the effects?
Well, to answer that question, there's actually thresholds built into the Act, as we'll see in a few moments.
your show as well. Yes...
Yes. And the word significant, the modifier significant plays an important part in how the act is actually applied. I'll just give you a preview before we get there. When we look at the decision making of the agency, once it's determined that an assessment is made or should be made, the effects that are in play have to be significant. That's in 28.3. And ultimately when the decision is made by the minister or the GIC, again, the effects they look at in the broader spectrum have to be significant. So there are thresholds built in and the regulations speak to that. It's not all projects or all physical activities that are covered here. There are thresholds. So the way that the act works is that it filters down or it funnels down to an ultimate decision by the minister or by...
But is there a threshold before the designation? Because once the project is designated, it can take years before having a resolution. Yes, there are.
There are thresholds in the built into the act. And maybe.
I don't want to preempt your argument. You can discuss that later if you want.
Well, what I was just going to take you to is I was going to take you to the regulatory impact analysis statement because it speaks to the rationale for that. And the idea is that it's going to have a threshold of a certain level of the physical activity because that's going to have the greatest possibility of the adverse federal effects applying. So it's not all projects that come within the scope of the Act. And as I said earlier, within the Act itself there are off-ramps. If under section 16 the agency determines there's no need for an assessment, then the matter proceeds. So it's not a black and white all or nothing approach in the Act itself.
But do... Nope.
Just so I understand the first point you made on the distinction between the power to legislate and the factors that a decision maker can consider in making a decision under legislation. Are you really making any, stating anything different than was stated by Justice Laffer and Albine River about the broader public interest considerations that can be brought to bear in decision making? Is that all you're saying? Because I guess if one can only look to considerations relating to fish in relation to a decision about fish, then presumably, as Justice Laffer said, a project would never be approved. Is that what you're saying?
That's where we're getting at, yes. Justice Jamal is, and I'll take you to that now, perhaps is the best way to, what you've talked about here with Justice Lafare and Old Man River. And this gets to the point that with respect to the environment, it's a broad, amorphous area of the constitution that doesn't have a home in either, it has a home in both the federal and the provincial jurisdictions. So what Justice Lafare was speaking about with respect to the factors that can be taken into consideration in the decision maker is set out page 66, and this is at tab seven of my condensed book.
And I should have told you, of course, I'll be working for my condensed book if you have that handy. And where I'm looking at page 66 is at the top we've highlighted around subparagraph A. And I'm just going to read a couple of portions here, which are really quite critical to his judgement. What he said there, the third line down, was, Moreover, it cannot be seriously questioned that Parliament may deal with biophysical environmental concerns touching upon the operation of railways, so long as the legislation relating to railways. This could involve such issues such as emission standards and noise abatements. And then he goes further in the next paragraph and elaborates. A third of the way down he says, The possibility of a derailment may pose a serious hazard to the health and safety of nearby communities if dangerous commodities are to be carried on the line. On the other hand, it may bring considerable economic benefit to those communities through job creation and multiplier effect it will have in the local economy. The regulatory authority might require that the line circumvent residential districts in the interest of noise abatement and safety. In my view, all of these considerations may be validly taken into account in arriving at a final decision on whether or not to grant the necessary approval.
Right, but here's the point. What he's talking about is countervailing considerations. In other words, if you build the dam, you hurt the fish. But there's a really good reason to build the dam. But what you're trying to use that for is to say, because there's fish affected, I'm going to say greenhouse gases. I'm going to have regard to greenhouse gases. I'm not going to use that as a countervailing consideration. That's the real reason I'm shutting this down. That's different from what Justice LaFore was dealing with.
No, that's, with respect, just to show that's not our position and that's not what we're saying. If I can just finish what Justice Leffler-Rey said, then I'll take you to where it fits into the act. He then said, to suggest otherwise would lead to the most astonishing results and defies reason to assert that Parliament is constitutionally barred from weighing the broad environmental repercussions, including socioeconomic concerns when legislating with respect to a decision of this nature. And if we look at what the act says, let's look at, if I can take you to the first tab of my condensed book. And if I can take you first to paragraph 28.3 of the act. Now, these are the final report that's submitted to the minister by the agency. And if we look at sub three, it says the report must set out the effects that, in the agency's opinion, are likely to be caused by carrying out the designated project. It must also indicate from among the effects in the report, those that are adverse effects within jurisdiction, those that are not subject to the direct incidental effects, and specify the extent to which those effects are significant. So it's not a matter of saying, oh, there's an effect. There's a significance. And if we look at what the minister or the GIC takes into account at paragraph 63, under public interest. Now, I won't read the whole section to you. Of course, you can read it. When you have a moment. But it says halfway through.
The first one, the decision must be based on a report with respect to the impact assessment and consideration of the following factors, this bank to which the designated project contributes to sustainability. And then B, the extent to which the adverse effects within federal jurisdiction, within the federal jurisdiction and the adverse direct and incidental effects that are indicated in the impact assessment report in respect of the designated project are significant. So it's not a matter of saying there's a fish issue and therefore we're going to shut down. There's a balancing that is done here. And that's what Justice LaFore was speaking of in his judgment.
Does not the either the minister, the governor, and council in making the decision take into account not merely the impact on the fish, but things like sustainability, which is a concept, not an area of authority, the impact on international obligations related to climate change, and therefore isn't the decision really not based on the impact and federal jurisdiction, which is fish or birds or whatever, it's the broad policies of the government of Canada used in a discretionary way to say thumbs up or thumbs down on any project they want anywhere in the country.
No, again, that's not the way the Act operates, and that's not our position. As I mentioned when Justice Cote asked a question, there are thresholds in the Act, and there are levers which allow for the projects to go ahead.
Well, there is a very broad definition of effects.
But it's defined, well, let's look at the definition, Chief Justice, it's in section two of the act. And what effects, and if I can take you to that, that's at tab one, page three.
effects is defined as it means unless the context requires otherwise changes to the environment or the health, social or economic conditions and the positive and negative consequences of those effects. So it's not just looking at negative effects to answer your question Justice Roll. There's a whole picture that has to be looked at. And this mirrors what Justice LaForet was saying in Old Man in that there could be balancing. There may be an effect which is negative but there could be other effects also and the overall picture has to be taken into account in the public interest.
When I look at the definition of effects that you just read to us, it's talking about changes. So when I read that, it is like any change. Don't you think that it is quite broad? When I ask you, is there a threshold about the significance of the effect, when I read the definition of effects, and maybe you can show me somewhere in the Act where we have that threshold, but I don't see, they are not talking about the significance of the change. So any change is an effect.
Well, the change, the reason I took you to 28 and 63 is because when doing that balancing, it has to be significant.
Where is it written? Because when I read 63, you read to us the extent to which the adverse effects within federal jurisdiction and the adverse direct or incidental effects that are indicated in the impact assessment report. And that comes after the project has been designated and that there was a report prepared. Right. I want to know before the designation, where is the threshold about the effect?
Because in Foller, for instance, about armed to fish, the court was clear that it had to be significant armed and not only minor armed to fish.
Right, the significant, the way that the threshold works, as I mentioned previously, Justice Cote, is that there are thresholds with respect to the output of the project, essentially, which would most likely have the adverse effects within the federal jurisdiction. So that's the threshold. But that's just the starting point, as I mentioned. The reason I took you to, and again, the reason I took you to 63B was because all the adverse effects within the federal jurisdiction and the direct or incidental effects that are indicated in the report assessment have to be significant. And what happens then is, if they're not significant, what is left then for a proponent is to say that's not reasonable, and that's judicial review. And what this court said in the GGPPA case was that's a significant part of controlling discretion. And that's a paragraph 195 of that decision.
Judicial review for the purposes of administrative law is not what we're dealing with here. We're talking about judicial review for the purposes of constitutionality. And there's a great slipperiness, I have to use that word, in the factum of the Attorney General of Canada by saying, don't worry about constitutionality, administrative law will take care of it. It's a different question in terms of administrative law. I agree with-
Justice Rowe and we did not say that not to worry about it because the Administrative Law will take care of it. What we said was that if a decision-maker goes beyond what is within their jurisdiction and what is unreasonable in making that decision, the court can there find on judicial review that it was unreasonable and a court could find also that it would be unconstitutional on a proper record. So it's not a matter of saying Administrative Law is going to take care of the problem. There are two aspects that the court may look at.
You're saying that the first issue is is this constitutional or not and afterwards whether the administrative actor has conducted themselves reasonably or not right you correct you don't okay correct
There has to be determination. As I said at the beginning, we have to keep the two aspects clear.
Legislation can be found to be constitutional, and it could be applied in a completely unconstitutional manner by the executive and by the bureaucracy, by the decision maker. If legislation is applied...
in an unconstitutional manner. That doesn't make the legislation unconstitutional. It makes the application of the legislation unconstitutional. And there's significant.
difference. I'm going to bring the focus back to the legislation and its constitutionality and in particular this materiality issue. The word significant was in the 2012 version of the statute in terms of defining effect and when the process, even the decision of whether to assess, kicks in. And I understand your submission that there are thresholds and at the end of the day no decision can be taken unless there's significant effects and I understand the argument about the title and these various funneling that takes you only to significant effects. But what's your answer to the to the suggestion that in fact the process can be triggered and effects can be taken into consideration even if they're not significant, if they're trivial, or if there's something other than significant. What's your answer to that? Because I think that's the thrust of much of the criticism is that the word significant is missing and therefore it can capture insignificant or trivial or de minimis kinds of changes or effects.
Well, it depends on what we're speaking of, Justice Kerikosanis. When we're talking about the ultimate decision that has to be made under section 63, significant is there, and that's a major factor that has to come into play. As I mentioned earlier though, with respect to how a project or an activity is listed, what happened is there was a decision made that there would be a threshold. And the reason there was a threshold decision was made was because of that very reason of de minimis. There may be projects that have an affect, but they are not of enough significance to be designated. And that's what we see.
Your answer is that the designated projects themselves create significant, there's some kind of a presumption or a potential that they will have a significant, I guess part of me is just thinking, what does the word significant mean, either in the dictionary or in law? Often it just means non-trivial, and I just, or not de minimis, or more than, and it just, I'm just wondering how much work the word significant does and how significant its absence is.
I'll try not to use significant in my answer other than to use the word that Parliament has used. But why Parliament chose that word clearly in our submission demonstrates the need for it to be beyond trivial. Significant – and we can look in the dictionaries and there can be various definitions – but significant means something of substance, something substantial, something relatively major. It doesn't mean the trivial or the insignificant or along those lines.
Now let me do it section nine in section nine where the minister can designate a project even if the project is not in the regulations there is no mention of significant.
Right, but all that's going on there, Justice Cote, if you recall, all that's going on there is that the minister is designating. So instead of it coming through a regulation, it's being designated by the minister.
But the problem is when I am a project proponent and my project is designated, it means that my project is frozen for months and even years. So where is the threshold about the effects when there is a designation by the minister?
Well, first of all, when the minister, just looking for section 9, just give me one moment here. When the minister is designating, he or she is still limited in the sense that they have to be of the opinion that the physical activity may cause the adverse effects within the federal jurisdiction or adverse and incidental effects or public concerns relating to them that those effects warrant the designation. So it's not just a general. And the other thing I would point out is the designation, as I mentioned, is just the start of the project or start of the process. What happens then is the assessment is made by the agency, determining whether or not a full assessment is necessary. And if a full assessment is not necessary, then the project proceeds and that's the end of the story. And I'll just also point out there are limitations in the act at paragraph 9.7 to the minister's designation. If the project, the physical activity has substantially begun or if the federal authorities already exercise powers, then the designation cannot take place. And I'd also just mention, and I don't want to, I just want to mention this briefly. I'll turn to it hopefully in a few minutes in more detail. But we've included the Alberta regime or at least portions of the Alberta regime that we understand from the evidence. And there's a designation, a discretion in the director there as well. So what we have here is not unusual. This is not an unusual designation because it's essentially saying outside of what is regulated, if there's other things that pop up, other things that come to light, there's still an ability of the minister to designate. But that doesn't change anything post-designation.
Doesn't this come down to the distinction that this is an information gathering tool and at the outset of the project, Section 7 doesn't talk about the prohibition in Section 7, just talks about an effect because it's an information gathering tool and when the project's already been designated for certain types of project, it's because those are in all likelihood going to cause the significant... Yes....resandinators or something else, really.
And the question really comes down to, is there a constitutional requirement for the exercise of federal jurisdiction that there be a significance threshold? That really becomes the question, it seems to me, at the outset of an environmental impact assessment process. That becomes the question. And I guess I'd be interested in your views on that.
Well, let's go, I've been trying to get to this for a moment. Let's go to the RIAZ, which is at tab two of my documents. And this sets out the rationale for why we have the list. And if you look at the regulatory statement, it says under rationale, the objective of the project list is to identify those major projects with greatest potential for adverse effects on areas of federal jurisdiction related to the environment so they can enter into the assessment process, as you mentioned, Justice Chammell. And I'll just read a bit more, because it ties into the earlier legislation that was mentioned. The project list was developed using the criteria-based approach using the previous list under CA 2012. It's the starting point in consultation with expert government departments. Discussion paper on the proposed list was published, and the changes to the project list are not expected to significantly change the total number of projects that are subject to federal impact assessments annually compared to the number under the CA 2020. And I'll just mention, this point is also picked up in Justice Grechel's dissenting opinion. At paragraph 678, we're referred to a number of academic studies that say that there's really no change in the number, and the projects that will actually be caught will go down. So to answer your question, Justice Chammell, there is, built into the rationale, a narrowing or a funneling of the project list or the designation. And if anything, it is narrower than what was under the previous act. And if we go back even further, it's even narrower than it was under IRPCO, because IRPCO talked about initiatives. So what we have, through the evolution of the legislation, is we have a narrowing and a focusing of what projects or physical activities are going to be subject to the federal assessment process. Thank you.
I can just? Or do we say that there's an expansion there? I guess what interests me and I'd like to hear some comment on is that the environmental schemes over time have moved from permit, which was what was going on in the Old Man River case, to project-based. And when you cite this, it's an intention to target those projects that are thought to have the most significant environmental impacts. But we're building assumptions in there. The permit was very tangible and concrete. If you needed a federal permit, that was sufficient in constitutional law to ground the federal jurisdiction. And so as we move to a project which is bigger and is based on the assumption that it will have other hooks or tethers or grounding in federal jurisdiction, aren't we just by the device of a project moving to things that are less specific, less concrete, less tied to federal jurisdiction?
No, I'm not sure I wouldn't agree with that, Justice Martin. I think what you're getting at is this issue of whether or not the anchor has to be in an external statute versus the present legislation where the federal anchors are found within the statute itself. And as Justice Reckles said in her dissenting opinion, there hasn't been a rationale to say why constitutionally it has to be that way. The other way I can look at it is this...
way of saying that is there's no recognition that it is that way constitutionally either and I guess what I'm asking for is the justification constitutionally for moving from permit to project
In our view, in our submission, the move from permit to project, as you put it, is not a constitutional difficulty because the root or the anchors for the federal jurisdiction are still found in the constitution. So let me put it this way. If there wasn't a fisheries act, the federal parliament would still have jurisdiction over fisheries.
What the, and I'll just use a rough phrase, the conduit to access the federal power, whether it be through the permit process or through the project process, in our submission is constitutionally it doesn't matter. What matters is whether or not the anchor is properly within the federal jurisdiction. So we don't see the constitutionally difficult. So assuming that...
So assuming that I'm persuaded by that point, you now get to a situation where you're in for one purpose, you're in for every purpose. There is some impact on aquatic species. Now I'm going to take into account greenhouse gases. Now I'm going to take into account employment equity. Now I'm going to take into account treaty obligations. And it's that disconnect. The feds get their hook in under some head of power, and once the hook is in, they can use their discretion for any purpose they want. That's the problem.
Well, it's not a question of using it for any purpose, Justice Rowe. It's a question of looking at the factors which come into play. So I just want to make clear the distinction, sorry, a distinction here in that the assumption is that the legislation is properly anchored in the federal jurisdiction. This goes back to my first point. That's the constitutional aspect, the constitutional validity. The second part of your question, what you're asking about what are the factors that can come into play is with respect to the administrative applicability. And what we said in taking you back to Old Man River is that it would be, as Justice LaFauré pointed out, it would be difficult to see why you cannot take into account a wide range of factors. He uses the term socioeconomic, which is found in the legislation, which is also found in the Alberta legislation. Alberta looks at a very wide range of factors as well. And so it's not unusual, given the scope of these sorts of projects, at the administrative application side of the equation to look at this broad range. Because again, to go back to Justice LaFauré's terminology, you may have an issue with pollution. You may have an issue with noise, but then you also have an issue with respect to economic growth. And that is part of what the Act deals with. And if we look at the preamble in a moment, hopefully, and the purpose clause, all those factors come into play. That's what the purpose of the Act, or one of the purposes of the Act, is aimed at. And these are factors that can be taken into account in the administrative side of the equation. Can I ask you a technical question? Thanks.
Can I ask you just a quick technical question? I'm sure you'll have a quick answer. The Chief Justice asked about effects earlier. You pointed us, for example, to the use of adverse effects within federal jurisdiction or adverse direct or incidental effects. In section 63, these terms are used throughout the act. And the definitions, I have a question about the definition of direct or incidental effects. In section two. And so we've been discussing it in respect of the head of power. So the first part means effects that are directly linked or necessarily incidental to a federal authority exercise, authority's exercise of power, performance of duty. It's after the or that my question is, or to a federal authority's provision of financial assistance to a person for the purpose of enabling that activity or project to be carried out in whole or in part. Is that, what is that? Is that the federal spending power? What is that?
Yes, that would be the federal spending power. It would also be the issue here, of course, is that if the federal agency provides the funding for a matter, a project, and it's going to be under review, what this says is hold off on that until we determine whether or not there are matters that we have to review through the assessment process. So it's trying to stop, basically it's trying to stop that happening.
until the assessment is done. And again, and not to go to the well too often, but Justice Greco points out very candidly, it's much better to have that determined at the front end of a project rather than halfway or three quarters of the way through the project once funding has been made, that sort of thing. So it's all, what it's basically saying is for the agencies, just hold until we determine if an assessment is made. Okay.
So I understand, but so we have to concern ourselves though just on the federal spending power point of how expansive that might be in terms of, as you know there are debates as to the extent of the federal spending power as opposed to the scope of various heads of section 91.
This is a situation where it likely would have to be determined on the particular facts of the case and whether or not the federal spending power or authority in that particular set of facts was properly allocated or not, or constitutionally allocated or not. I think it's safe to say as a general proposition, federal agencies or federal bodies would have the power to spend within their mandate, within their legislative mandate. And all that's saying here is just hang on until we determine whether or not it's necessary. And I'll just point out again, at 9-7, with the minister's delegation, if the agency has already started the spending process, then the designation by the minister cannot take place. So there's a symbiotic relationship there.
I want to come back to the designation of projects because I think that your answer was that the designation itself, and you referred to the regulatory impact analysis statement, is that by limiting the projects to those that are greatest potential for adverse effects in areas of federal jurisdiction, that that ensures that in fact it is only those that have significant impact in those areas. I guess the question that I have for you is to what extent does that statement help given the broad and like what are the constraints on the reg making power? Is that particular statement actually one that has to apply in the reg making power? I've been concerned about what are the constraints on the reg making power that require you in effect to choose projects that have the potential for significant effects in those areas.
of a broad answer, Justice Karytas-Santos, because as the court I'm sure is aware, the constitutionality of the Act and the regulations are one and the same. They're not necessarily as separate entities. And so the scope of the regulation would be tied to the purpose and the purpose of the Act and to what the Act was meant to be focused at. And if we look at what the purpose, and this is at section 6, it might be useful to turn to that now. If we look to have one. It's a long list. It's a long list. I won't have time to read it all. But there are a number of purposes that are set out there. In this court, of course, it said in the GGPPA case that to look at the preamble and the purpose is one of the first steps you look at for a substance. Roundabout answer to what you've asked me is that the regulations are going to be tied to the same constitutional framework that the Act is. So the regulations have to be within the purpose and the scope of the Act itself. And what our submission would be is that by limiting the physical activities to a certain threshold, what the Act does through the regulations do is focus the Act and the powers of the assessment. It's not all projects. It's not all possibilities. It's limited to that threshold.
is for the project and the regulations, what about the designation by the Minister under section 9
Well, the designation, as I said, the designation powers of the minister would still have to be within the confines of the purpose of the Act. And if we look at Section 6, it would have to be within those purposes. And it would also, as I mentioned to you in your first question when you talked about this, Justice Cote, is the internal restrictions of powers that the minister has to designate.
Okay, I guess just to bring it back so I understand the answer to your question, I understand that the reg making power has to be interpreted within the context of the purpose and of the legislation. My problem that I'm hoping you can help me with is that the purposes are so broad and the question I have is do they actually practically restrict it only to those projects that would have a significant effect in areas of federal jurisdiction? Well... What is it about the purposes that allows us to say that with confidence?
that the regulations are restrictive. Yeah. The purposes, and if we can look also at the main title, which is at the beginning, it says, the Act respecting the federal process for impact assessments and the prevention of significant adverse environmental effects. So we have to go back to significant. And then if we look at the purposes, at the various components of it, feed into how the regulations are then made. So significant is a major component of how the regulation is going to be enacted. And what the rationale was that I took you to is essentially an emanation of what the purpose was and the significant modifier that's in the title to say it's not every project. There was a policy decision made that would have to be a certain threshold in order for the project to be designated under the regulations. And that's how it fits within the purpose, which is to establish a fair, predictable, and efficient process for conducting impact assessments. It creates opportunities for sustainable economic development. That's in B.1. In C, to ensure these assessments of designated projects take into account all effects, both positive and negative. And in D, near the end, consider it in a careful, precautionary manner to avoid adverse effects within federal jurisdiction. In E, cooperation and coordination between federal and provincial governments. So it's not every project. And what I would say, and if we look at the preamble, I'm not going to talk about efficiency and economic.
Just just to round that off. I also think You're also relying on the fact that the way the act is structured at the end of the day No decision can be taken Unless there are significant adverse effects and that's what is the threshold for any decision
Yes, it has to be read as a whole, just to care of sand. As like I said earlier, the whole process funnels the decision at the end, where it has to be significant.
But, I mean, Highway 413 is held up, and it's nominally held up because of a frog, I think. And it's really held up because we're not supposed to be driving cars, and fossil fuels are bad, and it's not sustainable. And the fact that it's nominally held up because of some frog is the kind of thing which hides behind the nominal effect in federal jurisdiction, but the purposes of the legislation indicate how it is intended to be used for a full range of purposes that go vastly beyond federal jurisdiction.
Well, Justice Rowe, the issue of Highway 413, my submission on that would be that if there was a difficulty with the process, the way it should have been dealt with was through a judicial review where there could be a full record before the reviewing court with a contravailing affidavit, cross-examinations, and a full determination by that court. And that would then take care of the issue that you have raised with respect to what you're saying, as I understand it, is you're saying insignificant factors have been taken or unreasonable factors have been taken into account in the application by the agency. And that's where the agency could say, no, here's why, and the court could then determine if the administrative applicability was unreasonable. Let me also add a few stations. Now, if I ask for that, should the independent procedure gigabytes of crowned annual
What I'm saying is a little more simple than that and more direct. And that is that nominally this legislation is about adverse federal effects. Yes. But the purpose tells us something different. It tells us it's about a great deal more than that. That the tools which are set out in this legislation are intended to, for the regulation or the prohibition of activities that are not sustainable in the view of the federal cabinet, that it's almost absolute discretion, or anything else they can cook up from time to time. For example, international treaty obligations. There's no correspondence between the purposes which actually tell us what this is being used for and the underlying sources of federal authority.
Well, Justice Roe, if, if, I mean, I won't read through all the purposes again, but in our submission, when you look at what the purposes are, it fits well within what the act actually does in practice. And as I said earlier,
and not to to uh... harpoon is too much we have to keep constitutional validity separate from administrative applicability and much of what you've raised and what concerns you have raised are is whether or not in a particular factual situation a decision has been made which is improper or unreasonable
But perhaps the problem is the issue that's being raised is the breadth of the discretion that appears to exist in section 60 and following the decision-making provisions, because that's where the rubber hits the road. Everything else is just delay, right? It's section 60 and following where this notion of a veto comes in. And the breadth of the...
authority in this notion of public interest. I guess the question I have is what is there is there anything that constrains not just an administrative law issue but a constitutional legislative power issue that constrains the provisions in section 60 and following in terms of the decision making because it does seem to grant great breadth of discretion in terms of it becomes a bit of a black box in terms of deciding what's in the public interest and what's not. The question is how do you actually review that given that it is a black box in section 60 and following.
Well, two things first, Justice Chammel. I would not agree with characterization that there's a veto in the legislation. There is no veto power. What there is is there is a prohibition until the assessment is made. And then if the determination is made that there are adverse federal effects that are not in the public interest, there could be conditions applied to that particular aspect. Within the federal jurisdiction. Other aspects of the project can easily continue on. And whether or not and how that works in each particular circumstance would depend on the circumstances of the case. With respect to the restraints of paragraph 60 to 64, it's in my submission not unusual to have a public interest balancing test done in types of legislation such as this. And if, as this court has said in the GGPPA case, again, paragraph 195 going back to Ron Carelli in Duplici, there is no unfettered discretion in a decision maker.
Can I ask you a follow-up question on that? The public effects notion, where does that play in, if at all, in your approach to pith and substance? You've explained we do pith and substance and characterization and the like by reference to purpose. Understood. But it seems that the majority of the Alberta Court of Appeal have placed a great store in the effects of the legislation including public purpose and all of the factors there to help define what the pith and substance of this legislation is. I think you started saying we do it separately. Yes. And I'd just like to hear you a little bit more about effects and pith and substance as applied to this act.
Well, it is, Justice Martin, it is, we have to keep the two distinct. The characterization of the pith and substance and the classification. And what we, our submission is the classification exercise completed by the majority of the court of appeal led into the characterization of the pith and substance. In our submission, the pith and substance is very clear based on what the purpose and the preamble of the, and the general structure of the act set out. And that is the pith and substance is to establish a federal environmental assessment process to safeguard against adverse environmental effects in relation to matters within federal jurisdiction. Very clear. The second part about the classification is whether or not that can be anchored in existing heads of power. And we've set out in our factum, and Justice Greco did as well in her dissenting opinion, how each of the anchors comes into play. And that is a separate analysis from the pith and substance analysis. So that was the difficulty we had with what the majority of the court of appeal did. In addition to bringing into what we said were irrelevant factors such as efficiencies, this court in the firearms references said the efficiency of legislation is for parliament to determine and it's not a factor to take into account. Those are the difficulties we had with what they did with their pith and substance analysis.
Do we take into account effects including the breadth of the public interest determination factors in assessing pith and substance?
The factors that can be taken into account in the administration application of the Act are not determinative of whether or not the Act impits in substances within the federal head of power. So in this case, because environment is not listed as a head of power for either federal or provincial legislatures, it's a joint exercise. And what happens here is that all we're seeing through this Act is that within the federal areas of jurisdiction where we can anchor a head of power, fish, habitat, migratory birds, the Act allows, the federal parliament has said the Act will allow the federal government to look at those aspects of a project in relation to those matters which are within the federal jurisdiction. That's how the two combine with each other.
Just to understand your criticism of the majority on pith and substance and to make sure that you're not falling into the same trap on the other side. Just specifically where you think they went astray and is it, am I right in thinking that at the end of the pith and substance analysis before the majority gets to classification I'm at 373 of the majority opinion this list of 13 instances in which there is a an impermissible degree of federal jurisdictional overreach is this an example of where they've conflated yes by
And to respond to the suggestions of an overreach, what the majority did is they read far more into the act than was actually occurring. So what we, and I'm running a bit short on time, what I'll say to your question, Justice Kazurier, is as we said in our factum, we feel that, in our submission, is that the majority erred in four significant ways in the pith and substance analysis. They narrowed the characterization analysis far too much. They improperly focused on efficiency or practicality of the legislation, which is not a matter for determining pith and substance. They dismissed the effective role of judicial oversight. And the fourth is that they improperly looked at classification as part of the characterization exercise. As usual, time goes very quickly. We're before you. I have about seven minutes left and I have to give proper time to my colleagues. One last question for you. For me. For me?
Is it still your position that both the act and the regulation should stand or fall together?
Well, the court, of course, can, I hesitate to use the term read down, but the court could, of course, find that a portion of the regulation or a portion of the act is unconstitutional, but the majority still stands. So that would be the answer, Chief Justice. Right now, I Media
referring more specifically to section 81 to 91, which doesn't seem to be too controversial.
No, there didn't seem to be much at issue there in the courts below. So with respect to those powers, I don't think there's an issue with respect to constitutionality.
I just ask you one question about the issue about practical effects because the jurisprudence talks about practical effects. Is the, is what you're saying, just to make sure I understand it, that there's a conflation between practical effects and efficiency because practical effects in the epithin substances analysis is directed at the question, which is what is the Act trying to do and how? And the Act isn't trying to delay, it isn't trying to put roadblocks. It may have that effect, perhaps, some would say, but that isn't actually directed at the epithin substance question, which is what is the Act, what is its real matter, what is it trying to do? Is that what you're saying? I just ask you one question about the issue about practical effects.
That's what we're saying, that's what we're saying, Justice Jamal. The classic case was the, and I forget the name of it, from the 1930s, where the leaf leading case, leaf leading case, where the municipal bylaw was struck down because it was deemed to be aimed at a particular religious group. And therefore, even if its purpose was not within the realm of that particular legislative body. That's not what the case is here. The efficiencies, as I mentioned, is not the basis for finding unconstitutionality. It might be a basis for finding unreasonableness in a particular set of circumstances, but not unconstitutionality. Subject to any further questions, I'll leave a few moments for my colleague, Ms. Anderson.
Good morning, Chief Justice, justices of the court. I'm speaking today on the very narrow issue of inter-jurisdictional immunity, and the majority made three errors in applying that doctrine in this case. First, they acted beyond their jurisdiction, which was confined by section 26 of the Alberta Judicature Act to the matters that were referred by the Lieutenant Governor and Council. And those matters were restricted to the constitutional validity of the legislation and not to its applicability. The second error was applying the doctrine without precedent. This court has said future applications of the doctrine will generally be limited to cases in which the head of power has already been... The protected core of that head of power has been defined in previous precedent, and in this case, there are no precedents respecting any of the six provincial heads of power that were listed by the majority. The majority's third error was in applying the doctrine in the abstract without any evidence or analysis respecting the two criteria that are required to establish the doctrine. The main problem here was that the majority concluded that six heads of power were impaired without considering the protected cores of those heads of power. And in Degagne Transport at paragraph 93, this court said that defining the core is step one of this analysis, and that step was completely absent.
What do you say about the sort of the middle ground that's put forward by British Columbia? Because one could say that looking at COPPA, for example, that final decision-making authority over a matter is a matter that's intrinsically at the core of anything, and that that's how this act should be read down, to not allow for a veto to use the vernacular. And so that is not an issue of inter-jurisdictional immunity at large, but a matter of how this act should be interpreted and applied in a constitutional manner.
Yes, thank you, Mr. Justice. I think that the problem with British Columbia's approach there is that it would allow the federal government to study the impacts in federal jurisdiction, but not to be able to prohibit those impacts in any way, in any meaningful way, through the public interest analysis. So it's not so much a middle ground as it is a different definition of inter-jurisdictional immunity that doesn't really accord with the definition provided by this court. At paragraph 430 of the majority's reasons, they explicitly declined to consider the essential vital elements of the six heads of power. And in any event, those six heads of power are too broad and too overlapping to be well-suited for the definition of a core. In Canadian Western Bank, this court actually used provincial local matters as an example of a head of power that is very imprecise and very difficult to define. Alberta's position that the protected core is the ultimate decision over natural resource development would create provincial enclaves, and it would completely and totally immunize provincial natural resource development from federal regulation in any area, no matter the magnitude of the federal effects that it may cause. And this would be especially detrimental in the environmental arena, given the consequences of climate change and the importance of both levels of government having the ability to act, which was recognized by this court in paragraph 12 of the GGPPA.
May I just ask this question about the theory of inter-jurisdictional immunity? So far the case law has only allowed it in respect to federal powers and not of provincial powers. Where does it sit with the doctrine of paramountsy?
Well, it's a matter of judicial policy in terms of which way the court prefers, which order the court prefers to apply the doctrines. Generally, this court has said it prefers to start with Pithin substance, move then to paramountcy, move then to inter-jurisdictional immunity. So that's sort of where we say it fits. Now, given the majority's refusal to define the protected course, they were unable to conduct the impairment analysis in any meaningful way. And in any event, we would say there's no evidence on the record that speaks to impairment and therefore no factual matrix in which to apply the doctrine. I see my time is coming to an end very quickly. So subject to any questions you have, I will conclude my submissions there.
Thank you very much. The court will take its morning break. Fifteen minutes. Court, the court.
Merci, veuillez vous asseoir. Ryan Leake.
Good morning, Chief Justice. Justices. You should have my factum and condensed book which I will primarily be referring to. And I will commence when you are ready. Go ahead. Thank you. The tribal council is comprised of 11 first nations in the province of Saskatchewan in the Treaty 4 territory. All of the member nations occupy reserve lands which are held for their exclusive use and benefit by the federal crown. Nine member nations are signatories to the treaty land entitlement framework agreement in Saskatchewan which obligates Saskatchewan and Canada to add and convert lands to reserve land status. While the federal assessment process expressly provides for mechanisms to ensure indigenous participation and consideration throughout the process, it is the experience of the joint intervenors that this does not happen in many jurisdictions such as Saskatchewan where the majoritarian public interest can be given greater consideration than the extra provincial interests of indigenous peoples. These joint intervenors will be directly impacted by the determination of this Honourable Court in respect of Canada's jurisdiction to enact laws regulating the environmental assessment process. The joint intervenors say that a practical consequence of the impact assessment act is that it creates a stopgap measure to ensure indigenous consultation and engagement on intra-provincial projects and to secure the federal power to provide for environmental assessment of any project that has any effect on any matter within federal jurisdiction. The intervenors submit that the federal environmental assessment regime is an effective means of integrating scientific information and indigenous knowledge into the decision-making processes. In a nutshell, a proponent of a designated project is prohibited from doing anything that may cause certain effects to the environment of indigenous peoples. The joint intervenors say that the joint intervention of indigenous peoples is the experience of the joint intervenors that the government of Saskatchewan is unable and at times seemingly unwilling to execute an environmental assessment that is responsive to their rights and interests, including their Aboriginal and treaty rights. Environmental impact assessment is a planning tool regarded as an integral component of sound decision making. By including the promotion of communicating with indigenous peoples in the impact assessment process and ensuring respect of section 35 rights in the course of that process, the IAA contemplates involvement of indigenous groups and facilitates information gathering to identify effects on them and their lands in keeping with the stated purpose of the legislation and in furtherance of the Crown's duty to consult. This creates both certainty and predictability for critical stakeholders. The joint intervenors submit that when properly interpreted according to key legal principles, the legislation is intra-virez, the constitutional legislative authority of the federal parliament. Canada does have jurisdiction to enact laws regulating the environmental assessment process for development projects that impact first nations. This jurisdiction is based on multiple heads of power, including 9124 and POG residual powers of section 91. We submit that the interpretation of the constitutional division of powers must be informed by and consistent with the following principles. One, all parts of the constitution must be read together with section 35. Two, principles of cooperative federalism favour the concurrent operation of statutes enacted by governments at both levels and encourage intergovernmental cooperation. Three, the confluence of legal reconciliation in the realm of Indigenous Crown relationships strengthens interdependence of legislative obligations and the honour of the Crown, which allow for a heightened level of cooperation. The joint intervenors agree in principle with Canada on this issue. The impact of assessment act is, quote, to establish a federal environmental assessment process to safeguard against adverse environmental effects in relation to matters within federal jurisdiction. The joint intervenors submit that the IAA has the effect of creating a stopgap measure to ensure a minimum national standard to engage with Indigenous rights, interests and traditional knowledge as part of the environmental assessment process for major projects which may impact their lands and interests. Section 7 triggers the application of the IAA where a designated project may have an impact. These stopgaps are especially important for First Nations in jurisdictions like Saskatchewan where there's a demonstrated history of failure to adequately consult under the environmental assessment act of Saskatchewan. And we've provided some illustrative examples with respect to Quill Lake's diversion project and the Lake Diefenbaker irrigation project in our materials in factum. The federal parliament's residual Pog authority also provides justification for the concurrent act. And we've also provided justification for the concurrent application of the IAA vis-a-vis Crown obligations to safeguard Indigenous rights and interests. Early planning, information gathering and collaboration ensure potentially affected Indigenous peoples and communities that key issues which may exist are raised early in the process leading to better project design and ensuring project proponents know what's expected of them at the outset. Upfront engagement in early planning allows for faster reviews, more timely decisions and can narrow or eliminate altogether concerns and other concerns that would otherwise require judicial intervention. Recognizing I'm now running out of time, I'll open up the floor to any questions you may have.
Thank you very much. Thank you, sir. Martin Olsynski.
Chief Justice, Justices, WWF Canada submits that this appeal is fundamentally about trade-offs. And if that is correct, the basic questions are twofold. Which level of government, federal or provincial, is competent to make such trade-offs where federal interests are engaged, but also which branch is most competent, legislative, executive or judicial? To answer these questions, WWF Canada makes the following submissions, which should address many of the questions that have been raised by this Court so far. First, most environmental laws, including impact assessment laws, consist primarily of processes for democratically accountable decision-making. Second, in Canada, democratic accountability is channeled through the division of powers. And third, that democratic accountability also hinges on respect for the separation of powers. And so beginning with our first submission, for better or for worse, due to the complex nature of environmental problems, most environmental laws do not consist of fixed and generally applicable substantive limits. Instead, modern environmental laws consist of structured processes for decision-making. Legislators generally prohibit impacts or activities in one breath, while granting the executive branch the discretion to authorize such activities' impacts and the contentious trade-offs they entail in the next. Impact assessment laws may be the most rigorous and transparent form of such regimes, but these are differences of degree, not kind. One of the critical assumptions underlying this paradigm is that the identification and disclosure of environmental impacts will lead to decision-making that better accounts for those impacts through the potential for democratic accountability. More simply put, that politicians will be reluctant to approve projects, either directly or through their bureaucracies, that are environmentally destructive with a view to the ballot box.
Mr. Azinski, in your factum you say at paragraph 23 that the question is whether the broader cost benefit analysis is constitutionally constrained in some way and that gets back to the quote from Old Man River. Is there no constraint on Parliament's exercise of authority so long as there is some federal interest? Is there no constraint whatsoever?
I mean, of course there is, thank you for the question, Justice Jamal. I mean, I think there's bound to be some constraint. Of course, this court has a role to ensure that these regimes are constitutional. But speaking to my, in my third submission, especially I get to this point where I think it's very difficult for the court to determine, for instance, in the words of Justice Grecoil in her dissent, right, that it's not for the courts to tell parliament at what point it is allowed to be concerned about harm to the environment in areas within its constitutional jurisdiction. And so I know this court has been preoccupied a little bit with the idea of thresholds or materiality, but I suggest to you that, you know, in a sense, these are academic discussions because this act anyways is focused on those major projects. You know, there is, it is very difficult for, I think, us to conceive that the projects listed in this project list aren't going to have significant adverse environmental effects on areas of federal jurisdiction.
In paragraph 20, you refer to democratic accountability and say that parliament, you adopt the words, that parliament is the only form competent to weigh the competing provincial interests, etc. This seems to link up this notion of democratic accountability necessary to federal decision-making, which is, I mean, if you take democratic accountability and the notion that these things had to be balanced across the country, then the federal government can do anything.
Well, thank you for that question, Justice Rowe, but I don't see that. I think, again, what I see in this act is a very explicit and deliberate focusing on adverse effects in areas of federal interest. And so the question becomes whether those decisions about those adverse effects on fish, on migratory birds, you know, fundamentally the question is, are they worth it? And so what the, what parliament has done through the Impact Assessment Act is given a series of considerations and a process and a series of duties to help the federal executive determine in any given instance, are these adverse effects worth it? And I can't see how that is unconstitutional. In fact, I refer you to the delegation reference, which we cite at paragraph 13 of our factum. And the court then said, the Constitution of Canada does not belong either to parliament or to the legislatures. It belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. This passage is a full answer to the constitutional question raised by this appeal, which is that the IA regime must be intravirus, parliament's legislative authority. So while Albertans and Ontarians look to their provincial governments for decision making regarding the development of resources, they look to the federal government to safeguard environmental matters of national importance. Yes, this will be IA.
the federal government says it is because they are by definition dealing with the national interest. As soon as you bring in the national interest it's immediately federal and then the feds can do what they want which cannot be consistent with the constitutional division of power.
So I don't know, court, Chief Justice, I know my time is up, so. I have a couple.
You can provide an answer to that last question or comment.
So I think the answer is that of course, as this court is recognized in Canada Western Bank, the heads of powers were assigned to the two levels of government for a reason. So Section 91 exists. When I say matters of national importance, what I'm referring to is the matters referred to in Section 91. And so that is what our Constitution says. And we say WWF says therefore, the Act must be constitutional because that is what the Act safeguards. All right. Thank you very much.
Thank you. And that's Johnston.
Chief Justice, Justices, Alberta and the intervenors in support of its position would have this court upend decades of settled law respecting federal authority over matters assigned to it under Section 91. As cases like Oldman, Northwest Falling, and Moses confirm, the heads of power such as Fisheries and Navigation confer on Canada the power to prohibit unauthorized impacts on areas of federal jurisdiction and to require authorities to inform themselves of the implications of issuing authorizations for those effects. To find that this authority doesn't extend to intra-provincial projects, for example, the Canada Can't Say No to a Mind's Impacts on Fisheries would be to eviscerate federal jurisdiction and throw federalism into an unworkable imbalance. It would also be a 180-degree pivot from the case law, as this court in Moses found, there is no doubt that a mining project anywhere in Canada that puts at risk fish habitat could not proceed without a permit from the federal fisheries minister, which he or she could not issue except pursuant to an impact assessment. The Constitution doesn't limit the fisheries power to the Fisheries Act or the Navigation Power to the Canadian Navigable Waters Act, nor was 2019 some constitutionally unique year that ended Parliament's authority to enact new laws imposing a decision function with respect to federal effects. What Nature Canada and West Coast Environmental Law submit is an outstanding issue that would benefit from this court's clarification, is the scope of information authorities can consider when deciding whether and under what conditions to allow intra-provincial projects to cause federal effects. I submit that that scope is broad, limited only by the relevance of the information to each case. The Impact Assessment Act is a look before you leap law aimed at informing federal authorities about potential impacts of major projects on areas of federal jurisdiction and the implications of allowing those impacts to occur. The factors it requires be considered under sections 22 and 63 reflect the reality that permitting federal effects can have broad repercussions that merit careful consideration. Consider for example an oil sands mine that would require turning a lake into a tailings pond. Doing so wouldn't benefit fisheries and it's unlikely that a federal authority would authorize the impacts unless there was some benefit to doing so, such as the jobs that the project would generate for Canadians. Those jobs are not fisheries jobs, they're jobs in the oil industry and related to local works and undertakings in the development and management of non-renewable resources which fall under section 92. They're an incidental benefit that would flow from allowing the fisheries effects to occur. And when considering those potential jobs, the minister may want to confirm that they are indeed a net benefit. For example, the minister might consider whether the jobs would be filled by workers from outside the local area who would be housed in nearby towns and whether doing so might drive up housing prices, decrease housing availability and affordability, put pressure on local health services, even result in an influx of illegal drugs and sexually transmitted infections in the local community. And the minister may also consider whether those impacts might be disproportionately borne by women, indigenous peoples, or people along other identity lines as is required under section 22.1S. In other words, the minister may question the extent to which the jobs are an incidental benefit and to what extent might allowing those fisheries impacts to occur cause further incidental spin-off adverse effects. These may all be relevant considerations and the fact that some may be benefits and some may be impacts is constitutionally irrelevant. As majorities of this court have found in Old Man and the Canadian Forest Products case, the economy and human well-being are inextricably linked. And preventing federal authorities from considering the broad environmental and socioeconomic implications of allowing federal impacts would be like attempting to unscramble an egg, neither possible nor advisable. So long as a decision is ultimately about a project's federal effects and isn't, as Justice LaFerre suggested in Old Man, a colourable attempt to regulate a provincial matter, then the decision will be valid. And as Canada argued, I submit that it's not for this court to presume that future decisions made under the Act will be colourable or otherwise ultra-virez. Instead, if it appears that a federal authority is attempting to use the Act to improperly infringe on provincial jurisdiction, then that's a matter for judicial review when the reviewing court will have the facts before it. And subject to any questions, those are my submissions.
Thank you very much. Eamonn Murphy.
Justices, my name is Eamon Murphy. I'm here with my colleague Tara McDonald and we represent the Athabasca Chippewaun First Nation, who I will refer to as ACFN. ACFN are Andeni people that continue to rely on the bounty of their land and waters and whose territory has been significantly impacted by oil sands development over the last 40 years. This has meant that ACFN has participated in many environmental assessments, including several joint review panels, which I will refer to as JRPs. The JRPs have been made up of the Alberta and Canadian governments and we've attached to our materials two decision reports dealing with oil sands reviews. ACFN submits that the act and the regulation or the scheme as they're known is wholly intravirates the federal government. I'm going to be focusing on the first part of the fact of my factum today, which is that joint review panels are a key legal effect of the act and the majority of the Alberta Court of Appeal aired in concluding that the scheme is a veto in part by ignoring the JRP process within the majority's pith and substance analysis. When you go to first principles, we know that the legal effects flowing from legislation are relevant in assessing the pith and substance of an act and that was most recently confirmed in the greenhouse gas reverence. When you look at the provisions of the act in respect of joint review panels, the notion of a veto is a misunderstanding of the way in which the joint review panels function. There are several sections that relate to joint review panels and the first is that when the minister is considering whether to send the matter to a review panel, the minister has to look at opportunities for cooperation with provinces. That's section 36.2. If a review panel is struck, the federal government can make an agreement with the province in question and in this instance, Canada and Alberta have many times made agreements about how an assessment is going to proceed and you can see that in the tabs, tab 28 and 29 of our decision or our factum. Canada must also collaborate with the province to appoint joint review panel members and within those panels, the provinces play a critical decision-making role. They determine along with the Canada representative what the adverse federal effects are of a project. It's the provinces in Canada on these panels that work together to identify what those federal effects are and that's under section 51.1d of the act. I mention all of this because the provisions under the present act are nearly identical to those under CA 2012 and the act before that, CA 1992. I've referred to the Shell-Jackpine decision, which was a decision of a joint review panel. It's at tab 28. When you review that decision, it's very clear that the JRP recognizes and acknowledges that there are a number of decisions that have to be made by both levels of government. That is to say, the JRP makes recommendations, but the decision then goes off to the provincial decision-makers under say, the Alberta Water Act for example, or the Alberta Oil Sands Conservation Act and to the federal decision-makers for fisheries and navigable waters decisions. That's painted very clearly by the panel. In the recommendations the panel makes, it does similar things. It points to the level of government that still needs to make a decision about the project. The point that I'm trying to make is that there are multiple decision-makers in each of these joint review panels such that no one has a veto. Instead, what happens is that the provincial and federal governments each make different but equally important decisions about the project. As Justice Grecold noted in her decision at paragraph 721 and 722, both levels of Crown sign off on a project. It's not really helpful to think about it as a veto. If we do think about it as a veto, I suppose both levels of government have a veto, but that's really not the way the joint review panels are meant to work. These panels are set up under cooperation agreements. Canada and Alberta have had one in place for decades. The most recent one is the Canada-Alberta Agreement for Environmental Assessment Cooperation. There's no reason to think, as Justice Grecold pointed out, that the JRPs are going to operate any differently under the President's Act than they did under CA 2012. The majority concluded that the pith and substance of the Act amounts to a federal veto, but they failed to account for the joint review process. Subject to any questions, those are my submissions.
Thank you very much.
Good morning. I will focus my submissions on first, the importance of a strong federal role in impact assessment, and second, the issue of GHG emissions. First, as recognized by this court in Hydro-Québec, Canada has an all-important duty to make full use of its legislative powers to protect the environment. And this duty is ever more important, given the serious environmental crises we face relating to climate change, biodiversity loss, and toxics and pollution, as is set out in Eco-Justice's Factum at paragraph 6 to 8. The IAA does nothing more than discharge Canada's right and duty to protect the environment. The provinces articulate variations on the argument that their jurisdiction over activities is more important than Canada's jurisdiction over environmental impacts. This view goes contrary to this court's repeated emphasis on the importance of environmental protection and should not be elevated to a principle of constitutional interpretation in a time of environmental crises, caused by the historic privileging of economic activities over environmental impacts. Eco-Justice submits instead that the Act contains sufficient safeguards to ensure Canada remains within its constitutional purview, which include references to significance and a requirement for detailed reasons. As this court has heard, the Act requires that decisions with respect to whether adverse federal effects are in the public interest be informed by the significance of such effects, as is clear from section 60 to 63, which are also in our condensed book at tab 2. It is only consistent with the allocation of powers to the federal government under section 91 that Canada be able to determine that significant adverse effects within its jurisdiction are not in the public interest, although that is not the default outcome under the IAA, and Canada has ample authority to place conditions on such effects to allow projects to proceed. Additionally, section 65-2 requires that decision-makers provide detailed reasons to explain their public interest decision, thereby ensuring the availability of robust judicial review should decision-makers overstep. With respect to GHG emissions, the federal government plays an important role in regulating GHGs in Canada, including by regulating the GHG emissions of existing coal, oil, and gas projects under provisions of the Canadian Environmental Protection Act, which were upheld by this court in Hydro-Québec as criminal law. The IAA should be viewed as another manifestation of the established federal role. First, Canada has jurisdiction to consider GHGs as a public interest factor. Federal decision-makers may consider a project's GHG emissions when deciding whether a project's significant adverse federal effects are in the public interest and impose conditions on GHG emissions as a trade-off for allowing adverse federal effects. Second, Canada also has constitutional authority to directly regulate a project's GHG emissions as a trans-boundary effect under section 7, 1B, 2, and 3, pursuant to the criminal law power. We discussed this power in our factum starting at paragraph 25, and for now, I will simply emphasize that the operation of section 7 of the IAA is, in key respects, similar to the impugned provisions in Hydro-Québec, pursuant to which Canada regulates GHG emissions from existing projects. Both involve a broad prohibition against activities that may cause harm, which is then tailored to narrow prohibitions against specific activities once an assessment of potential harms has been completed. In the IAA, the broad initial prohibition against a proponent causing effects within federal jurisdiction, found in section 7, 1, is tailored to narrow prohibitions against a proponent violating conditions at the end of the impact assessment. In Hydro-Québec, at paragraphs 134 and 151, found at tab 3 of our condensed book, Justice Lafferre found that a broad prohibition in the legislation, which is tailored to focus prohibitions by the executive, is unavoidable and obviously necessary in the environmental context. Also in Maison Candiac, at tab 4 of our condensed book, the federal court of appeal upheld discretionary orders to protect species at risk as criminal law. The court found at paragraph 22 that giving the executive branch the power to carefully adapt the prohibited activity to specific circumstances was a valid exercise of this power. And similarly, the tailoring of the broad prohibition in section 7, 1 to narrow prohibitions by the executive as a result of the impact assessment process is a valid exercise of the criminal law. While Canada has not argued criminal law, the questions on appeal are broad enough for this court to rely on this power, just like in the Genetic Non-Discrimination Act reference where this court upheld impugned provisions under the criminal law despite both attorney generals for Canada and Quebec arguing they were ultra-virus. Thank you.
Thank you very much. May price.
Thank you. Chief Justice, Justices, Micah Sue Crease submits that Section 7.1 C&D of the Act, which empower the federal government to consider and regulate impacts from designated projects on Indigenous interests, come within Parliament's power to legislate in respect of Indians and lands reserved for Indians under Section 9124. I'm going to focus on two points today. First, Section 9124 is broad and includes the ability to protect Indigenous peoples' interests. And second, without the IAA or similar federal legislation, impacts to federal interests, including Indigenous people, could go unassessed and unregulated. Turning to my first point, Section 9124 is a broad power. While the outer limits of its scope have not been comprehensively examined, the case law is clear that it includes at least interests unique to Indigenous people, such as Aboriginal and treaty rights, Aboriginal title lands, and reserve lands. We also know from the case law cited in our factum, as well as in our condensed book, that it includes broader interests, such as Indigenous culture, interpersonal relationships, and the wellbeing of Indigenous children and families. Now, an important aspect of Section 9124, which this Court has acknowledged, is the ability to protect those Indigenous interests. In Delgamook, at paragraph 176, which is included in our condensed book, Chief Justice Le Maire clearly states that Section 9124 empowers Parliament to legislate to safeguard Aboriginal rights in relation to land. He recognizes that it would be, quote, a most unfortunate result if, quote, the government vested with primary constitutional responsibility for securing the welfare of Canada's Aboriginal peoples would find itself unable to safeguard Indigenous nations' rights in relation to land, including rights that fall short of title, which we say include treaty rights. The protective nature of Section 9124 has also been affirmed more recently in Daniels. Further, it would be both illogical and perverse if Parliament could control or limit Indigenous people, their rights and their interests, but did not have the corresponding ability to protect those rights and interests. Part of the illogic is that it would be inconsistent with how other federal powers are treated in the Constitution as those federal powers include the ability to protect. So, for instance, under 912, Parliament is empowered not only to regulate fishing, but to protect and conserve fish, a point that is clear from your decisions in Northwest Falling and Moses, both of which are in my condensed book. And under 9110, Parliament is empowered to not only regulate navigation, but also to preserve the navigability of rivers through the regulation of structures that would impede navigation, as is made clear in Oldman River, also which is in my condensed book. And when Parliament legislates in order to protect Indigenous peoples, or fishing or navigation, it is not impermissibly regulating local undertakings as such. Rather, it is properly exercising its jurisdiction under Section 9124 to safeguard these federal interests. As recognized by the Quebec Court of Appeal in the constitutional reference on Bill C-92, Section 9124 is, quote, a plenary legislative power with racial tones, and as such, it allows the federal government to legislate with respect to Aboriginal peoples generally, which will necessarily result in occasional encroachment on matters that Section 92 of the Constitution Act 1867 reserves to the provinces. Turning to my second point, without a federal impact assessment regime, significant impacts to Indigenous interests and other federal interests could go unassessed. Take, for instance, a large industrial project located entirely within Alberta's borders. Alberta would, of course, be required to consult on impacts to Aboriginal and treaty rights. However, impacts from such a project may extend beyond that. They could include impacts on the ability to pass on language or oral histories, impacts to places of importance, such as burial grounds, or disproportionate impacts on Indigenous women. And where these impacts are present, then without the IAA or similar federal legislation, it is entirely possible that these interests could go unassessed, and the federal government and affected Indigenous people would be left without recourse. Alberta argues that it already properly assesses these interests. Micah Soukri is situated right next to the oil sands and has participated in many provincial environmental assessments, and has a very different view on whether Alberta properly assesses these impacts. But whether Alberta does or does not is beside the point. Alberta has the discretion to structure its assessment how it wants, and if it decides not to assess those impacts, then they will go unassessed and unregulated.
Thank you very much. Sharon Misher.
Good morning, Chief Justice, Justices. This Court has recognized that climate change presents an existential threat to human health and the environment in Canada. The Canadian Association of Physicians for the Environment intervenes in this reference to focus on climate change. Specifically, CAIPP submits that the Impact Assessment Act and its regulations are a valid exercise of federal legislative authority, including the authority to consider the effects of greenhouse gas emissions on matters within federal jurisdiction throughout all phases of the Federal Impact Assessment Regime. This reference provides an important opportunity for this Court to clarify the constitutionality of this aspect of the regime. CAIPP focuses its oral submissions today on the proper classification of the act. And in this respect, CAIPP submits that Parliament's authority over the effects of greenhouse gas emissions from major projects under the act rests on multiple heads of federal power. And to make this point, CAIPP focuses on three, fisheries, indigenous peoples, and with respect to extra provincial effects, the National Concerned Branch of POG. The analysis in relation to the first of these two powers is really very simple. In the GGPPA references, this Court recognized that Canada's marine areas are being disproportionately affected by climate change, with changes that include rising water temperatures, increasing ocean acidification. These changes are of consequence to fish and fish habitat. If the GHG emissions of a proposed project may cause adverse effects on fish and fish habitat, Parliament has explicit jurisdiction under Section 9112 to consider those effects under the act. In the GGPPA references, this Court also recognized that irreversible harm caused by climate change will be felt across Canada with profound effects on indigenous peoples. Again, if the GHG emissions of a proposed project may cause adverse effects on indigenous peoples or land reserve, Parliament has explicit jurisdiction to consider those effects under the act. Turning finally then to extra-provincial effects.
I burn natural gas and what goes up the spout is CO2 among other things. So I'm contributing to climate change. Can the feds come after me and regulate how I, you know, get that furnace out and, I don't know, put an electric...
Thank you, Justice Rowe. In CAPE submission, this act is very different from the GGPPA to which those emissions would be subject to the minimum carbon price stringency within that act. Under the Impact Assessment Act, our submission is it is directed at assessing the adverse effects of major projects on uncontested areas of federal jurisdiction. And this court has found that individual sources of emissions may have tangible effects. And that includes tangible extra provincial effects and contribute to climate change. So just to again come back to extra provincial effects, CAPE submits that as with other forms of extra provincial effects, interprovincial and outside of Canada, if the GHG emissions of a proposed project may cause tangible, we can use the word significant extra provincial effects through its contribution to climate change. Parliament has the power as an established matter of national concern under POG to legislate in relation to those extra provincial effects. This court has recognized that within the Canadian constitutional order, provincial jurisdiction is territorially limited. As Justice Pigeon explained in Interprovincial Cooperatives, a province in which the effects of extra provincial pollution are felt lacks jurisdiction to protect against them. And a province in which the extra provincial pollution is created lacks jurisdiction to authorize them. In other words, we say there is a constitutional provincial inability for provinces to regulate extra provincial pollution. Given this, Justice Pigeon recognized that the federal government can legislate in what he described as a pollution problem that is not really local in scope but truly interprovincial. And as the majority of this court recognized in GGPPA references, well, there was no express reference to POG. The application of that power explains the result in Interprovincial Cooperatives.
Thank you very much.
Thank you, Chief Justice, Justices. Oceans North is an environmental nonprofit that works to conserve and promote ecological and cultural resilience in the Canadian Arctic, and in particular, in its marine ecosystems. These environments are often some of the most vulnerable to the adverse impacts of major projects which are subject to the IAA.
I want to focus my submissions on a finding by the Court of Appeal, which is advanced by Alberta in this appeal, that the fisheries power is not broad enough to prohibit actions which may, as opposed to which would, cause harm to fish or fish habitat. Relying on Fowler, Alberta says the word may in section 7 of the IAA makes it constitutionally over broad. In my submission, Fowler is clear that section 91-12 can provide the federal government with the jurisdiction to regulate activities that has the potential to cause harm to fish and fish habitat. The penultimate paragraph of Fowler specifically says that what was wrong with the legislation in that case was that there was no attempt to link the prescribed conduct to actual or potential harm to fisheries. So my submission, as long as there's some link to potential harm, that could be covered by the fisheries power. And I say in this case, there is such a link. And this link is by virtue of the fact that the IAA, and this has been discussed at various points this morning, but the IAA is designed specifically to apply to major projects which have the greatest adverse impacts on federal areas of jurisdiction. Indeed, these major projects would not only likely harm fish and fish habitat, but by their very nature, they almost certainly will. And this picks up on the point that Council for WWF made this morning, that it's hard to conceive of these major projects not having adverse impacts on aspects of the environment like fish or fish habitat. And for example, GHG emissions from in situ oil sands from projects will directly cause and contribute to climate change and ocean acidification, which will cause adverse impacts to these species and these environments.
The prohibition must also be understood in light of the broader regulatory model that it serves. And in my submission, it's useful to look at Crown Zellerback in that regard. In that case, of course, it was conceded that the wood waste being dumped had no connection whatsoever to any adverse impact on fish or navigation. Yet the court not only upheld the prohibition under the national concern doctrine, it also stated that the regulatory model at issue and that model prohibited the conduct while relevant experts investigated the impacts to determine whether that conduct should, in the end, be permitted is, quote, perhaps the only effective regulatory model to prevent that type of marine pollution. And you can find that at paragraph 18 of Crown Zellerback. And that's effectively the same model that the IAA uses. So in my submission, the narrow construction of the fishing fisheries power should be rejected. It's not supported by Fowler. It's inconsistent with the pronouncement of this court in various cases like Ward of how broad the fisheries power is and how there's a duty on the federal government to protect this resource and its environment. And it's also inconsistent with a precautionary principle. But even if the fisheries power is as narrow as the Alberta Court of Appeals says it is, then in my submission on the basis of Crown Zellerback, the national concern branch would still apply. I'd also submit that it would, the national concern branch would also apply to migratory birds and aquatic species, which like fish are species and environments which are extra provincial in nature. I want to conclude on a point which goes to the bigger picture. In my submission, upholding the Court of Appeals decision returns us to the realm of watertight compartments in environmental decision making. It's divorced from the realities of the interconnectedness of the environment and the transboundary impacts of major resource development. And it allows provinces to approve projects no matter how damaging those projects are for those outside its borders. In my submission, the federal government ought to have robust constitutional authority to regulate and control these extra provincial impacts and spillovers. And our constitution ought to be able to allow it to create robust environmental assessment legislation, which is consistent with the precautionary principle and responsive to the interconnected and transboundary nature of major resource development. After all, the environment has been said to be too important to be allocated exclusively to one level of government. Thank you very much. Thank you.
Chief Justice, panel members, our factum explains why we generally agree with Canada's position, but my submissions today focus on the trade and commerce power because environmental effects of certain designated projects may adversely impact inter-provincial and international trade and commerce, providing a complementary basis for upholding the constitutionality of aspects of the impact assessment regime. Our focus is on major commercial activities identified as designated projects under the regulations such as coal, oil, and gas projects and the following characteristics of the Act. First, sections 2, 6, and 7 of the Act define effects as including changes to economic conditions and the environment within federal jurisdiction, both inter-provincial and international in nature, caused by designated projects and prohibit adverse federal effects. Second, greenhouse gases arise from coal, oil, and gas production and have economic and environmental effects recognized by the greenhouse gas law, which declares they constitute an unprecedented risk to Canada's economic prosperity. Canada has designated and regulated greenhouse gases as toxic substances for over a decade under the Canadian Environmental Protection Act. In this regard, the Impact Assessment Act complements both federal toxics law and federal carbon pricing law. Third, effects of such designated projects include in-province greenhouse gas emissions that may be felt beyond the borders of the provinces producing them. Without the Act, designated projects could contribute to creating pollution havens with adverse extra-provincial, economic, and environmental consequences due to businesses leaving provinces with strict environmental laws for provinces with less strict laws, a concern raised by the authors Eamon and Hanbury and what the United States Supreme Court in Hodel calls, quote-unquote, destructive interstate competition. Fourth, coal, oil, or gas from designated projects are often intended for export to other countries. Use of these exported products produce greenhouse gas emissions having significant international economic and environmental effects. Federal export controls on designated toxic substances in the Canadian Environmental Protection Act, if extended to greenhouse gases, could benefit from information derived from measures imposed by the Impact Assessment Act, which requires consideration of Canada's climate change commitments under sections 22 and 63 of the Act. What do these characteristics tell us about possible classification of the impact assessment regime? CLASSEN tells us that a purely intra-provincial work that has inter-provincial and international effects on trade can be addressed by federal legislation based on section 91.2 of the Constitution. Inter-provincial cooperatives tells us that notwithstanding Parsons, business contracts that impact inter-provincial trade are no longer a matter of provincial jurisdiction but one of federal jurisdiction and suggests the same may be true with respect to inter-provincial pollution. Post-inter-provincial cooperatives, section 92A subparagraph three of the Constitution would now make this the case as a matter of paramountcy. But the question is, what did Justice Pigeon intend to say with respect to the trade and commerce power per se? Probably nothing. But in the U.S., this would be viewed through the lens of the commerce clause of the U.S. Constitution as destructive interstate competition. Old Man's reference to the Australian High Court decision of Murphy Oars helps us understand that environmental and economic issues are tied to each other such that an export decision on a mineral extracted in accordance with state law can nonetheless rely on information derived from a federal impact assessment review and still be considered constitutional under that country's trade and commerce power. Old Man at page 67 also reminds us that when we regulate non-navigation activity like bridges and dams that impact or certainly do not improve navigation under legislation authorized under section 9210 of the Constitution. In our submission, if we can do that, we can regulate environmental activities such as pollution havens capable of impacting interprovincial trade and commerce under legislation authorized under section 92 of the Constitution. To summarize, intra-provincial activity capable of causing adverse extra-provincial and international environmental and economic effects does concern trade and commerce because it may harm trade and commerce. In our submission, such activity may validly be addressed by the Impact Assessment Act under the Interprovincial and International Branch of Canada's Trade and Commerce Power. Subject to any questions you may have, those are our submissions.
Thank you very much. Jesse McCormick.
Good morning, Justices. I'm joined today by Ryan Beaton and Ronald Stevenson. The Impact Assessment Act enables meaningful participation for First Nations and major project assessments and provides effective opportunities for First Nations to understand and respond to the impacts that projects may have on their rights and interests. The First Nations Major Projects Coalition is a First Nations led not-for-profit society representing over 130 First Nation members, both elected and hereditary across Canada. Our primary purpose is to ensure that our members have the necessary capacity to make free, prior and informed decisions about major projects proposed within their territories, often through economic participation and equity ownership. Our experience has made clear the need for efficient, coordinated and inclusive regulatory systems that offer a meaningful role for Indigenous peoples. We argue in favor of the constitutionality of both the Impact Assessment Act and the Physical Activities Regulations. The Indigenous-focused provisions of the Impact Assessment Act empower First Nations to step beyond the limitations of being stakeholders within their own territories to being jurisdictional partners in the assessment of major projects. The innovative feature of the Act is precisely that it establishes a jurisdiction-based framework for Indigenous participation in impact assessments. That is the underlying object of Parliament's exercise of Section 9124 power in relation to this legislation. To recognize and empower Indigenous jurisdictions and to create a framework for cooperation. It is a purpose that lies fully within the scope of the federal power and it is consistent with both the protective function of Section 9124 and the empowerment of Indigenous peoples. Any questionable application of federal power, including potential de minimis applications or attempts to exercise a supervisory role over the provinces, are best addressed through judicial review with a sufficient factual foundation. There is nothing before you today that requires a finding that the Impact Assessment Act or the Physical Activities Regulations are constitutionally invalid. We'd like to expand on how this legislation promotes cooperation and coordinated action between the federal government and Indigenous governing bodies with respect to impact assessments. The provisions establishing a jurisdiction-based approach to Indigenous participation and assessment processes are found throughout the Act, with many listed in notes. 9 and 17 of our fact. I'll highlight two sections that support the jurisdiction-based framework for Indigenous participation. First, Section 7 preventative prohibitions permit the federal government and Indigenous governing bodies to conduct the work necessary to assess, mitigate and ultimately inform, make informed decisions about the effects of designated projects. Those steps need to proceed physical activities in order for cooperation and mitigation to be effective. Second, Section 114 of the Impact Assessment Act, which you may find at tab one of our condensed book of authorities, provides that jurisdictions, including Indigenous governing bodies, may enter into agreements with the Minister of Environment and Climate Change to exercise powers or perform duties or functions in relation to the impact assessment. While those functions would necessarily be constrained by the powers set out in the Act, the opportunity for Indigenous governing bodies to lead and administer impact assessments is an important and practical step forward in support of reconciling Indigenous systems of law with federal and provincial impact assessments. This important tool within the Impact Assessment Act is consistent with the principle of subsidiarity, because it provides the opportunity for Indigenous governing bodies to act on the issues of the Act, and to work with the Government with the principle of subsidiarity, because it places powers, duties and functions with Indigenous governing bodies. Those being the governments that are closest to the land and the impacts of major projects. No government is better positioned to assess and understand the impacts of a project on Indigenous peoples than the Indigenous governing bodies that represent them. The impact assessment act is already being implemented by Indigenous peoples. The outer edges of how those responsibilities intersect with federal and provincial power will need to be delineated and mechanisms developed to support implementation. The Impact Assessment Act is already doing that work in a coordinated and cooperative fashion. The impact assessment act has a multitude of ways to ensure the balance of federalism is not placed at risk. The concerns that have been expressed to the court about overreach and supervisory intent are not borne out in the language of the Act and should not be presumed. The salutory objective of empowering Indigenous governing bodies as partners in major project assessments is too valuable to throw away on the unconfirmed possibility that the Government of Canada may one day exceed its powers. We thank you for your time and consideration.
מטר דוד רביטאי.
Bonjour Monsieur le juge en chef, Mesdames et Messieurs les juges, bonjour. Le Centre québécois du droit de l'environnement, donc le CQDE, entend aujourd'hui faire valoir deux points qui sont susceptibles de répondre aux questions que vous avez posées ce matin au Procureur général du Canada. Vous avez été plusieurs à vous demander comment s'assurer que seuls les projets qui ont des impacts significatifs seront assujettis au pouvoir du gouvernement fédéral. Le CQDE soumets sur ce point-là que l'évaluation globale de tout projet de grande ampleur est un mécanisme préalable nécessaire à la détermination des compétences fédérales et provinciales en jeu. Vous savez comme nous que de gros projets ont souvent des ramifications multiples et peuvent interpeller tant des compétences et des lois fédérales que provinciales. Un processus d'évaluation des impacts permet en effet au gouvernement de tous les niveaux de prendre connaissance de la description du projet, de l'emplacement de ces infrastructures, de ces étapes et d'élèves de construction et de ces retombées et impacts positifs comme négatifs sur les collectivités et l'environnement. Un processus d'évaluation, c'est donc un processus de transmission d'information et de participation publique qui permet d'avoir une vue d'ensemble sur un projet. Or, le CQDE soumets que c'est très difficile pour un gouvernement fédéral comme provincial de déterminer les impacts d'un projet sur ses propres compétences sans en connaître les détails. Par ailleurs, plusieurs arguments de l'intimé s'apparentent bien davantage à notre avis à la doctrine de l'exclusivité des compétences qu'à celle du caractère véritable. À plusieurs endroits dans son mémoire, l'intimé soutient que la loi fédérale entrave ou frustre les compétences provinciales et en anglais, il utilise les mots « impair » et « frustrate » qui normalement font référence à la doctrine de l'exclusivité des compétences. Et c'est logique puisque c'est plutôt lorsque le gouvernement fédéral souhaitera imposer des conditions ou des modalités à un projet concret dont l'évaluation préalable aura montré qu'il relève principalement des compétences provinciales que les tribunaux pourront déterminer si ces conditions-là entravent ou non le cœur des compétences provinciales. Dans l'affaire IMTT, la Cour d'appel du Québec, sur laquelle s'appuie l'intimé ainsi que quelques intervenants, c'est d'ailleurs par la doctrine de l'exclusivité des compétences qu'on a réglé le litige. Et dans cette affaire-là, on était face à un contexte bien spécifique et en présence d'un projet bien concret. Et c'est à raison de son impact sur la propriété fédérale que la loi provinciale a été déclarée inapplicable dans cette affaire-là. Et ça nous amène à notre deuxième point, c'est-à-dire que la compétence fédérale ou provinciale principale sur un projet n'est pas une enclave complètement immunisée contre l'application des lois de l'autre palier. Cette cour l'a confirmée dès 1988 dans l'affaire Clark et réitérée dans l'affaire Oldman-River en 1992. C'est-à-dire que même si en droit constitutionnel, une activité ou un ouvrage relève toujours principalement d'un palier, et où elle ne relève généralement en totalité ni des provinces ni du Parlement fédéral, pas plus que le pouvoir décisionnel final que détient un palier fédéral ou provincial n'immunise un projet des lois de l'autre palier. C'est la raison pour laquelle le CQDE partage l'interprétation mesurée et pondérée de la loi, suggérée par l'appelant dans son mémoire et dans sa réponse, selon laquelle la loi ne vise pas à donner un droit de veto au gouvernement fédéral et ne permet l'imposition de conditions de modalité qui se rattachent seulement aux compétences fédérales. Selon le CQDE, il faut donc faire la différence entre l'assujettissement d'un projet à l'évaluation et la décision qui va être prise à la fin. La Jury de Prudence, la Cour d'appel du Québec et des autres tribunaux au Canada et la Jury de Prudence de cette cour aussi nous enseignent qu'il faut présumer de la bonne foi des autorités provinciales et municipales dans l'application de leur législation d'application générale à des ouvrages fédéraux. Le CQDE soumet qu'il faut aussi présumer de la bonne foi des autorités fédérales dans l'application de la loi contestée. On ne peut donc leur imputer par anticipation l'intention de paralyser ou de bloquer l'exercice des compétences provinciales. Et si cette cause souhaitait dissiper tout doute sur ce point-là, puisque vous avez été nombreux et nombreuses à poser des questions ce matin là-dessus, cette cour pourrait très bien fournir dans son jugement des éclaircissements quant à l'interprétation de la loi qui la rendrait conforme à la Constitution. Enfin, la Jury de la Prudence, la Cour d'appel du Québec et des autres tribunaux au Canada sont tous lesommyaris à cause du dollars pour les Christianes et de laïcité du Judith scrub
C'est une présomption de concessionnalité. Oui. Laquelle on devrait adhérer pour...
pour conclure que la loi et les règlements sont constitutionnels, c'est ça?
Oui, absolument. C'est une présomption de constitutionnalité en vertu de laquelle, s'il y a plus qu'une interprétation de la loi qui est possible et dans le dossier présentement, il y a deux interprétations qui s'opposent, la Cour devrait choisir l'interprétation qui rend la loi conforme à la Constitution. Et le CQDE soumets et invite respectueusement cette cour, comme le Procureur général du Québec dans son mémoire au paragraphe 40, à avoir une vision cohérente et symétrique du partage des compétences. Merci.
Thank you, Chief Justice. I get the privilege of batting clean up today, trying to pull everything together. My submissions will be focused on Section 91-24, but I did want to address two concerns from the court that I'll briefly address. First of all, Justice Cote's concerns with the designation process in SIA. I'd recommend the Micasu 2022 decision as a concrete example in terms of how the federal government deals with that. And then secondly, Justice Rowe's concerns regarding federal overreach. I'd recommend paragraphs 23 to 28 of our factum, in particular paragraph 28, which talks about the polycentric nature of the decision-making process and the balancing exercise inherent therein. I'd like to make three points. Section 91-24 continues to play an important protective role. Second, the enactment of Section 35 does not eliminate the need for Section 91-24. If anything, it makes it more urgent. And rather than being paternalistic, we submit that the IAEA is empowering for Indigenous peoples. And you heard from the Major Projects Coalition, one of the examples. So, my first point, the protective role of the federal government. As this court heard in the child welfare reference case, Section 91-24 still matters a great deal as a check on provincial power and a tool of self-governance. As my friends from Micasu said, the scope of 91-24 lawmaking power is broad. And we submit that the IAEA approach is consistent with the role of the federal government to protect Aboriginal treaty rights from an encroachment.
91-24 in your submission coextensive with the rights which are protected under 35-1, and just to add briefly to it, the rights protected under 35-1 appertain to the Indigenous peoples of Canada, and there's a corresponding obligation from the Crown and right of Canada, Crown and right of the provinces. But those are rights that appertain to the Indigenous peoples of Canada, and you seem to be saying that 91-24 encompasses all that, but it seems to me they're of a different nature.
Thank you for the question, Justice Rowe. So 9124 deals with the power to legislate. And of course, that's not in section 35. But when we talk about Indians, we're still talking about Metis, Inuit, what we now call First Nations in terms of that power. And we speak in our factum of Sparrow talking about this intersection of section 9124 and section 35, reconciling federal powers with federal duty. And in my submission, the IA attempts to reconcile this power with the fiduciary duty to protect section 35 rights from unjustified infringements by the Crown. It provides a structured approach to decision making, which was something this court warned the Crown should be doing in Adams, ensuring that Aboriginal and treaty rights are front and center in any assessments, as opposed to being an afterthought. So that was my second point, the enactment of section 35 doesn't eliminate the need for section 9124. And it's an important tool the federal government can use, particularly in light of, as we say in our factum, the province is having shown an inability or unwillingness to address cumulative effects. And we use the example from the Yahi case for that.
And isn't the threshold to use 9124 much lower than in respect of Aboriginal or treaty rights under section 35? I mean, I would have thought, given that it's a basis of legislative jurisdiction, in respect of Indians and lands reserved for Indians, it's a much broader basis. Yep.
Yes, I agree. I agree, Justice Jamal, that it is a broad power which, you know, prior to Section 35 would encompass those Aboriginal and treaty rights and, you know, through the Indian Act, for instance, Section 88 dealt with how the federal government could protect those rights. But now with Section 35, you know, we have this, we still have a need for Section 991.24 to, as some of the other New Venus say, to fill that gap. I see I'm short on time. If I could just have a minute, Chief Justice.
My third point, the Act is not paternalistic, it's empowering. Some of the interveners have said it's paternalistic. If properly applied, it'll go a long way to fulfilling Canada's commitments to bring Canada's law into alignment with the UN Declaration. The Act recognizes free prior informed consent, which is one of the fundamental aspects of the UN Declaration in Section 7 sub 4, which recognizes an Indigenous group's rights to consent and enter into impact benefit agreements and that the government would respect that as part of the IA process. And finally, in addition to requirements to integrate traditional knowledge, there are provisions allowing Indigenous groups to conduct their own environmental assessments, which I say is a recognition of their self-governance. Subject to any other questions? Those are my submissions.
Thank you very much. That brings us to the end of the first day of hearing. I thank Council for their submissions. The Court is adjourned until tomorrow morning, 9.30.