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the court. The court. Good morning. Please be seated. In the case of Attorney General of Canada against Attorney General of Alberta, I am the For the respondent, Attorney General of Alberta, Mr. Bruce Mellott and Bradley Gilmore and Sean Assey and Randy Steele. For the intervener, Attorney General of Ontario, Josh Hunter, Yashoda Runganathan. For the intervenant, Procureur-Général du Québec, Maître Frédéric Perreault and Maître Jean-François Beaupré. For the intervener, Attorney General of New Brunswick, Michael Hines. For the intervener, Attorney General of Manitoba, Charles Murray. For the intervener, Attorney General of British Columbia, Jay Garrett Morley, Christopher H. Jones and Ashley Caron. For the intervener, Attorney General of Saskatchewan, Thompson Irvine Casey and Noah Yonitkovsky. For the intervener, Indian Resource Council, Brooke Barrett and L. Douglas Ray. For the intervener, Canadian Association of Petroleum Producers, Robert L. Martz and Anna Seyfeld. For the intervener, Canadian Taxpayers Federation, Bruce E. Alcer Casey. For the intervener, Business Council of Alberta, Sean Sutherland, Maureen E. Kilrin Casey and Bradley Noga. For the intervener, Woodland Cree First Nation, Robert Reynolds Casey and Ed Picard. For the intervener, Hydro-Québec, M. Jean Lorty, M. Dominique Amiot-Bilodeau and M. Simon Boutillier. For the intervener, Canadian Constitution Foundation, Brett R. Carlson, Aidan and Paul and Peter Banks. For the intervener, Interveners, Independent Contractors and Businesses Association and Alberta Enterprise Group, Peter A. Gall Casey, Justyna Sebastiam-Pillay, Meredith Shaw. For the intervener, Advocates for the Rule of Law, Brandon Kane, Oli Carlmeyer and Asher Onikman. For the intervener, Explorers and Producers Association of Canada, Kellen S. Kidd and Talal Murtaza. Mr. Mellott, Orgill-Moore.
Good morning, Chief Justices. My name is Bruce Mellott. I propose to deal primarily with the Pith and substance issues associated with the impact assessment act. My colleague, Mr. Gilmore, will deal with issues including the important impact in the analysis of section 7 and the statutory hold. There is no objection to the concept that significant projects and activities should undergo assessments of their environmental, social and economic impacts, nor to the concept that projects should have the concept of sustainability considered in their review and approval processes. These are all reasonable ideas that are already incorporated in comprehensive provincial assessment regimes, including that set out in the Alberta record that was filed in the proceedings, which demonstrate the nature of the review processes that these significant projects already undergo. The objection to the IAA is that it's a regime which imposes an impact assessment review and decision making process in areas where there is no, or at best very limited basis of federal jurisdiction. It takes provincially regulated undertakings and subjects them to a review and approval process focused on federal priorities and then uses those priorities to decide whether the project should proceed. This process usurps the decision making control from the provinces over major undertakings and activities. Now, to frame our argument today, including addressing issues raised by the court yesterday, it's helpful to return to the central question, what is the PIF and substance of the impact assessment act? What is it all about? As this court noted in the greenhouse gas reference, a precise approach to PIF and substance will assist in determining the true nature of what parliament did and what it intended to do. The court also observed at paragraph 53 that it can be appropriate to consider the means chosen to carry out the legislation so as to avoid unhelpful vague characterizations of the statute such as health or environment. We've set out the PIF and substance of the impact assessment act in our factum at paragraph 26, which was largely the conception of the act as determined by the Alberta court of appeal. In brief, it's the establishment of comprehensive impact assessment regime requiring proposed resource developments and infrastructure projects to undergo broad ranging assessment of their impacts, environmental and otherwise, and subject those to federal oversight and approval.
Now you've just told us that your identification, your submission to us, will be that the pith and substance is as stated by the Alberta Court of Appeal. I understand that. That's very clear. Does that imply that you are relying upon their analysis, or are you going to set out an analysis which differs? And it might be, I'm not asking you to do any more than just say yes or no at this point, and any explanation you like, but it's, to me, is an important consideration.
Well, I would say, Justice Rowe, that certainly the analysis that the Court of Appeal conducted is one way to approach the conclusions that they reached on the validity of the Impact Assessment Act. We agree with the Court of Appeals' analysis, but we would have additional and supplemental points that we would make with respect to that analysis that, in our view, also go to important aspects of the Pith and Substance, including addressing some of the concerns of the Court yesterday.
I beg your pardon, but just by way of explanation, if you're going to give us sort of your take, which will differ in some respects from that of the Alberta Court of Appeal, there are some questions perhaps I do not have to pose to you. But if you do say, no, we're signing on 100% for the Court of Appeal, then I do have some questions relating to that.
Yes, well certainly, Justice Rowe, I think that we would very much concur with the Court of Appeals approach, but in our submission, the characterization of the PIFIN substance is based on an analysis which in our view is one that is as precise as possible about the regime. And clearly we would have some significant points to make about the PIFIN substance, which may or may not be reflected in the Court of Appeal decision. I'm sorry, I'm not perhaps addressing your concern. Can I? Can I? Can I? Can I? Can I? Can I? Can I? Can I? Can I? Can I? Can I? Can I? Can I? Can I? Can I? Can I?
Mr. Mellott, I'm over here. If I can just build on Justice Rose's question or comment and speak to something that's specifically preoccupying me. One of the criticisms that your friend brings to the Court of Appeal description of Pith and Substance is that the majority conflated the classification and did so specifically, and he points in his factum to the paragraph where the long list of at the end of the Pith and Substance analysis of plain indications of trenching on provincial powers. So I took that to heart, thought about it, and then looked at your friend's characterization of Pith and Substance where he says, paragraph 47, a proper characterization analysis demonstrates that the IAA's Pith and Substance is to establish a federal environmental assessment process to safeguard against adverse environmental effects in relation to matters within federal jurisdiction. That little end piece seems to me, at least a couple of the interveners, the Attorney General for Quebec, for example, says, well, that's doing the same thing. It's pulling into the Pith and Substance analysis something that should be later in the state. So I'm interested in building on Justice Rowe's question exactly what you're happy with in the Court of Appeal and what you're not happy with, because we have to worry beyond this case to get the technique right, the method right on Pith and Substance first. So that's one preoccupation I think that, speaking for myself, is on my mind.
Well, in terms of the concern that the two aspects of the pythons substance analysis were conflated by the Court of Appeal, I think that the concern, as expressed by my friends, isn't necessarily borne out. And to your point, the latter concept in Canada's characterization of pythons substance is in fact the more concerning aspect of conflating the two parts of the analysis. Because if we consider this whole notion of effects within federal jurisdiction and we look at the language of the Act, we have a concern that simply by saying that this Act is about effects in federal jurisdiction, that you've created a self-fulfilling type of circular argument. And the language that Canada uses to ground its constitutionality is really based, if one looks at the breadth of the terminology in the definition section and in section seven, where the effects are used, or the definition of effects are used to capture these projects and hold them. We have the statute saying these are effects within federal jurisdiction without that necessarily being so. And I think it's important in looking at those definitions and terminologies not to simply accept that an effect in federal jurisdiction as defined is necessarily that.
I don't understand what you're saying, Mr. Malik, because effective in federal jurisdiction is a defined term. So it's a shorthand, as I take the argument. Your characterization doesn't refer to fish, doesn't refer to aquatic species, migratory birds, inter-provincial or international environmental effects. So perhaps Canada's is a self-fulfilling prophecy by using a shorthand. But perhaps it could also be said that yours is excessively general and doesn't refer to fish, doesn't refer to birds, trans-boundary pollution. So I think there may be. I'm interested in knowing, is there a middle ground in terms of the pythons substance and the characterization classification between the excessively narrow and the excessively general.
Well, I'll see if I can assist with that, Justice Jamal. If one looks at the definition as set out for effects within federal jurisdiction, we're again describing, the Act describes and sets out a number of elements with respect to asserted changes within components of the environment. It simply asserts that they're within the legislative authority of Parliament. And the comment that you made about trans boundary effects, a change to the environment, this is B sub 3 outside Canada, none of these definitional aspects are necessarily reflective of an established jurisdiction under section 91 or 98. I see it too.
But isn't that the second question? That's whether the matter, as described as precisely as possible, then fits within a matter, it can be classified within a matter under Section 91. So the first thing is to describe, as precisely as possible, what the Act is about. And I take the point that you can't describe what the Act is about by using the conclusion that it's areas within federal jurisdiction because that's the conclusion. But you could use the language of the Act that it's about adverse effects on Indigenous peoples, Indigenous lands, fish and fish habitat, aquatic species, federal lands, trans-border pollution. You could use those descriptors and then the question about whether that's properly within a head of power is part of the second part of the analysis. I think that's the problem with merging the two. You've got to be precise about what is this Act, what is it about, what is it actually trying to do, and then does it fit within a head of power.
And that's why in our respectful submission, that is Alberta's position that this is an assessment regime with respect to the review of projects and undertakings for their impacts, irrespective of whether they're in federal or provincial jurisdiction. It's Canada's conception that this is all about avoiding adverse effects within federal jurisdiction. It's that conception of the PIF and substance in the first part of the analysis which completes the two concepts.
your point, let me just try and restate it. If we're trying to establish what this Act is about and you think it's about something that's too broad and doesn't fit within federal jurisdiction, I understand that submission, but what is it about? It's about establishing an environmental assessment process. Let's use the language of Canada to safeguard against adverse impacts on fish, whatever. There's a long list. You're going to argue that's too broad and I respect that that is the argument, but it's about adverse effects in those, on those, that list of things. And why wouldn't we just say that's what it's about and then you can proceed to make your argument that's too broad?
Because with respect, we would take issue with the notion that that is what it is about, that it is about adverse effects. Because this act is about effects generally. They're not necessarily limited to being adverse effects. There is no qualifier with regard to...
Yeah, and I was only dealing with the first half. I think you'd have to go on to say to allow informed determinations regarding whether those adverse effects were in the public interest or not. I mean, that's clearly the second part of the Act. In any event, you understand my concern. I think there's two pieces, and I understand your argument that it is so broad it doesn't fit within these heads of power. But when you're describing what it's about, we're just trying to look at what does this Act actually aim to do, and what does it do? So I think those are two separate arguments, and that's what I would ask you to kind of address for me.
If I may then, I'll turn to the question of what the act does, because it is a matter of walking through and seeing what the act in fact does. On the starting point…
May I stop you here and just ask you a question about the activities under the act and to make sure that I understand your position. The Alberta Court of Appeal in paragraphs 109 and 110, in 109 it talks about a list of activities in the act or part of what the act is about that are within federal jurisdiction. Do you take any issue with the fact with paragraph
No, those would be matters that would typically fall, be considered to fall within federal STich
And my understanding is you take no issue with sections 81 to 91 in addition.
All right, so your focus then is on, you accept sort of paragraph 110 of the Alberta Court of Appeal that this is the problematic areas.
Certainly in terms of the current listing of matters under the regulation, yes, that's right. There's obviously the ability under section 109 to add to that list without any restriction or boundary placed in the language of 109.
And justice Martinet, you took us to the regulations and one of the challenges associated with the legislation and the regulation is that those projects are ones that include provincial undertakings and local undertakings and projects, resource developments that are captured by the list even if there is no independent federal decision to be made about the project such as a fisheries permit. If you're in the list, then the machinery of the act applies. The result is that immediately the project or activity is subject to a statutory hold under section 7 where the apprehension of a change, positive or negative, in relation to the matter set out there including fisheries or aquatic species habitat or a broad sweep of considerations that may affect indigenous Canadians is enough for the federal hold to apply through a determination and screening or until a final federal decision about the project.
May I stop you there though as well? I mean I raised the question about the change in emphasis I guess in the federal environmental impact assessment legislation over time. From a permit based system that was tested in Old Man to a project based system which has not been subject to constitutional scrutiny under a federalism lens. And are you saying that a project based approach to environmental assessment is the problem or is it just this project based because it's too broad?
Well, I think that it may be possible to draft an assessment regime based on a project foundation that may appropriately pass constitutional muster. I think the difficulty in this case is that the foundation in the act is so broad that it does not provide sufficient guardrails to make sure that the projects and activities that are captured by the list and brought in, for example, under the section 9 provision, are going to be appropriately subject to federal jurisdiction. And the other aspect, Justice Martin, of the act that gives rise to concerns in terms of what you've identified as being the move from a permit to a project-based regime is that the act essentially treats all of the projects and activities that come under it as a one-size-fits-all proposition. So whether it's a federal undertaking like a railway or a provincial project which merely has the potential to cause one of the environmental effects identified in section 7, it's all treated the same as if it were a federal undertaking where, of course, a full comprehensive evaluation and approval regime would be appropriate.
Mr. Ameliette, what difference does it make, if any, if a province like Alberta has its own process for environmental assessment?
Well, it certainly, Justice Cote, it makes the difference in terms of showing under our analysis that what the Impact Assessment Act is doing is in many respects fulfilling many of the same things that the province may be doing in terms of projects and activities under its jurisdiction. But it isn't essential to the constitutional analysis necessarily because simply because one order of government has jurisdiction doesn't mean they have to exercise it and fill whatever area may be under there. It isn't a matter of, well, one province hasn't necessarily decided as a matter of policy to conduct an assessment of this type doesn't mean that that becomes a green field area for the federal government to legislate.
Yeah, you haven't quite used the same language as the Alberta Court of Appeal, but it seems implicit in your submissions that there are federal projects, federal undertakings, and there are provincial projects, and there are provincial undertakings. This is, to my mind, completely novel. This was, I'll go so far as to say, a development of the law that the Alberta Court of Appeal put forward, for which I know of no jurisprudential basis, in the sense that every project, every undertaking, has the potential to be regulated, both for its federal aspects and its provincial aspects. Aside from inter-jurisdictional immunity, which is a little different. I don't want to get into inter-jurisdictional immunity, although you may want to later. That's up to you. But I mean, if a road crosses a stream and there's fish in the stream, it doesn't matter that it's an intra-provincial road. The feds have a hook, as I said yesterday, pun intended, because aquatic species are affected. And how does calling it a provincial project change that?
Well, let me be clear, Justice Rowe, it's not Alberta's position that if there is an impact from a local undertaking that creates a circumstance where something like the Fisheries Act would apply, then that certainly, we're not taking the position that these projects and undertakings are provincial enclaves that are immune to appropriate federal review. The issue is taking the existence of a potential federal hook, if we can use that term, and using that to then graft onto that process an entire assessment and review process that leads to the final decision on the project being one made by the federal regulator. And that is very much what the IAA is intended to do. If we look at the extrinsic evidence that we've included in our materials, this is legislation which the federal government intended to allow it to make final decisions on projects and undertakings based on these federal priorities.
But I'm going to pursue that because let's say some province wants to build a dam, right? We've been in and out of the dam business in Newfoundland with mixed results. And the feds say, you know what, the impact on aquatic species is so severe. I mean, you're just going to wipe out a whole salmon river or something. Forget it. You guys, you're not getting a permit. It's off the board. And saying that that's a provincial, have we come back? How does the fact that most of the considerations relate to provincial heads of power limit the federal government in the exercise of its authority, which it clearly has? You're Caimbra dealer here.
Well, the issue I suppose, Justice Rowe, is no one is saying that, or Alberta is not saying that the fact that the majority of the regulatory aspects are provincial precludes the federal regulatory review on aquatic species. If there's a permit required and the federal regulator says this is unacceptable, we're not going to provide, well, they retain that jurisdiction to deny the permit. And that's fine.
And that's fine. What if no permit is required? What if no permit is required? But it still has the potential to have deleterious harm to fish.
Well, and I guess that gets to the nub of it, Justice. We have the issue here where it would be appropriate if there is, in fact, a permit regime or some sort of federal legislation in place which provides for that type of review. But here we have, under the Impact Assessment Act.
this legislation which does provide for that review.
except that the review here respectfully is one that is entirely ad hoc. And so you have no criteria with respect to the assessment of the potential federal areas of concern. All of the major factors that are to be considered under section 22 are ones which are focused on the project, not so much on evaluating the effects. And you yesterday, Justice, asked the question in regard to the concept of significance because my friend commented about the notion that there needed to be a significant effect in order for the decision maker under the IAA to have an adverse decision on the project. You asked how much work does significant have to do in this regime? And our response is, well, on the one hand, it may have a lot of work to do, but on the other hand, it may not have much work to do at all. Because if we look, and I maybe ask you to turn up in our condensed book, the at tab 14, this is the impact assessment agency's guidance on the decision making parts of the act. Tab 14, on the third page.
In the second paragraph, comparing it back to the 2012 SEA Environmental Assessment Act says unlike the previous legislation, there is no longer a requirement for a decision maker to determine whether the designated project is likely to cause significant adverse environmental effects. Rather, significance will be used to characterize the extent of adversity of the effects in order to inform the public interest determination. As well, the extent of significance will allow the decision makers to consider the effects holistically, taking into account a range of effects.
So can I ask you because that is not what Mr. Rupert said to us yesterday and it's not necessarily what I read when I look at the decision making, you know, section 60 and on of the act because as I read the act and granted there's a lot of interpretation that needs to be done, the report must include likely adverse effects. The report must and then the minister must act on that report and find that there are likely adverse. So I am just wondering to what extent that sentence which is obviously problematic is actually reflected in the legislation.
Well, I think if you go to section 63 of the act, one will see that again, and I think this is an important point that unlike in the 1992 or 2012 legislation where it was required that there be a finding of a significant adverse effect. Section 63...
in our condensed book as well, Justice, at Tap 3.
There is no requirement for a finding that the adverse effect is significant. It's only one of the many factors to be considered by the federal decision maker in determining what the ultimate public interest decision will be. So 63 sub b makes reference to consideration of the following factors, the extent to which the adverse effects in federal jurisdiction and the adverse direct and incidental effects are significant. It does not actually require a finding of significance.
Yes, I see that and I'll just make this comment and then stop. Yes. It has to be however based on the report.
And when you look back to what the report does, it must identify the likely adverse impacts. And so I guess that it is, the question is if you interpret this act in a way that actually, you know, I think the word used yesterday was funnels down to the decision making point. No decision can be taken unless there are likely adverse effects in those areas of, anyway, purported federal authority. Well, if you look at 59 sub 2 and add, you know, read those two sections together. And then I'll let you continue with your suggestions. Yes.
I think I would simply respond, Justice, that it does not require the decision maker to find that there are actually significant adverse effects in so-called federal jurisdiction.
because yesterday there was an argument about the title of the act which is which is referring to significant adverse environmental effects. It says an act respecting a federal process for impact assessments and the prevention of significant adverse environmental effects.
And that title, justice Cote does not limit it to adverse federal environmental effects or environmental effects within federal jurisdiction. And in fact, as we go through other elements of the language of the act including the purposes section, only one of the numerous parts of the purposes section actually refers to the concept of effects in federal jurisdiction. So throughout this is really a regime that is intended to do a wide ranging review that isn't necessarily focused on matters within federal jurisdiction. It is one that is intending to take these undertakings and projects irrespective of who may have the major regulatory oversight and subject them to a wholesale federal review. One size fits all review.
Speaking for myself, this is as much a comment for your friend as for you. 63A is the one I have trouble understanding. That is to say the extent to which the, as one of the factors relevant to public interest, the extent to which the designated project contributes to sustainability. There, it seems to be detached from a reference to adverse effects within federal jurisdiction and even in 60 sub one, where the reference to the report is, at B there's a reference to, back to 63 as an alternative basis, it's a concern of mine.
And Justice, I think that's a fair concern because again sustainability is not in and of itself a factor that's only applicable to federal issues. And again going back to the guidance document at tab 14, this is the agency's view on how these public interest factors are to be weighed and considered. It's very much one where the hook of some element of federal jurisdiction brings them into a process that leads to a decision making that as they say in the first page at tab 14, there are no thresholds or decision points for these five factors but rather the factors will be considered together along with the impact assessment report to inform the public interest determination. So in the agency's own view of this legislation, it is effectively considering that it has a very broad basis upon which to take into account whatever factors, however remote from the initial hook that might have brought the undertaking into the federal process and to make a determination on the project whether it's in the public interest.
Mr. Mellott, I wonder if there's a distinction that we should be drawing between factors taken into account or considered as a result of the assessment, for example, and what is ultimately decisive for the minister. What I mean by that is I have in mind Justice Laforet's comment in Old Man River, where he says, and admittedly, the context is not identical. He says, once you've got to use Justice Rose's language, once you've got the hook that rests upon a federal head of power that opens the door to an assessment, he says at page 66 that then the assessment broadens. All considerations may validly be taken into account in arriving at a final decision on whether or not to grant the necessary approval. To suggest otherwise would lead to the most astonishing results that defies reason to assert that Parliament is constitutionally barred from weighing the broad environmental repercussions, including socioeconomic concerns, when legislating with respect to decisions of this nature. At 66. So I say to myself maybe wrongly. You need a proper head of power to initiate the assessment, be it fish, or wildlife, or what have you. Then the assessment proceeds, because it would be astonishing if it was otherwise, to consider the broad range of impacts upon the environment. But then you retrench when the decision is actually made, you retrench to federal heads of power, because you don't want the minister stopping a project permanently on the basis of an authority that doesn't rest with the minister under the Constitution. So I'm wondering if this dictum of Justice Laforay, how you fit it into your analysis.
Well, I think part of the concern that you've raised is answered by looking at the context within which Justice Lafferty made those comments. And that was in connection with the discussion about looking at an inter-provincial undertaking under the Railway Act, where there's no issue that the federal government has full range of ability to consider all factors that may go to the aspects of that inter-provincial undertaking. But what Justice Lafferty then said over at page 67 is that one has to look at the appropriate head of power and what aspect of that, this is in the paragraph at the bottom of paragraph – pardon me, page 67 – that the environmental review must be linked to the appropriate head of power. And since the nature of the various heads of power differ, the extent to which environmental concerns may be taken into account in the exercise of a power may vary from one power to another. Justice Lafferty said the same thing again in Hydro-Québec, that one has to look at the power that's being engaged by the federal government and determine from that the scope of the appropriate review. The IAA doesn't allow for that type of tailoring to the particular federal concern that may have created the hook that brings it in, whether it's a federal undertaking or whether it's this notion of a potential impact. And that potential impact, whether it requires a concrete and tangible permit or not, gives rise to that entire machinery, which does not, on the face of the legislation, even require a finding or an apprehension that the effect in federal jurisdiction is one that is significantly adverse.
Mr. Mallett, you've taken us to the, along the same lines as Justice Kazeera's question and also Justice Cote's question earlier, you've taken us to the practitioner's guide to show, look, there's no guardrails here, there's no, they themselves say there's no threshold or decision points, that obviously isn't the legislation or the regulation. I guess our task is starting with the presumption of constitutionality to see whether the legislation can be interpreted in a way that falls within the jurisdiction of the enacting body. Do you accept that if the legislation is interpreted, as the title suggests, with a focus on a significance of the effect, that it would be constitutional? Do you say even if we recognize that there is a significant threshold, it would still be unconstitutional?
We would say that it would remain unconstitutional because it seeks to capture and subject undertakings that are primarily, provincially regulated in nature to a final decision by the federal government in respect of whether that project is in the public interest. So we even-
This information gathering, is it the fact that the undertaking has impacts on federal jurisdiction or is it the ultimate decision? I'm trying to identify where the objection lies. Is it the final decision at the end of the day, the power to say no, that this isn't going ahead or until this issue is mitigated, or is it the mere fact that information is gathered?
Well, it's the entire machinery you have, and my colleague will speak to this in a moment, you have an entire machinery from the point that section seven, well, even before that, from the point that you were captured under the designated project regulation, you were subject to that machinery of the act, which includes significant obligations to provide information, to refrain from taking certain conduct in accordance and at risk of significant sanctions, and my friend will speak to that. So this is the assertion of federal jurisdiction throughout a lengthy process, which may have the very thinnest pretext of any federal connection, and it's a federal regime which assumes, assumes based on labels that federal jurisdiction, and then provides the widest scope for the regulator, the federal regulator, to decide what is or isn't a significant effect without actually doing the heavy work that's required if you are in fact going to legislate in relation to fisheries, or you're gonna legislate in relation to migratory birds, where you might have to put in place criteria or guidelines or certain other elements of what should be considered in terms of determining significance. It's all left to the wide discretion of the regulator following this lengthy process with these mandatory considerations.
What is the, I don't know if it is you or your colleague who will discuss judicial review because there was an argument made yesterday that the availability of judicial review is very important here and would protect the constitutionality of the Act.
Yes, thank you, I will very briefly deal with judicial review. This is something that in Alberta's submission simply leaving it to judicial review is not an answer to the over breadth of the act and the vagueness of the language that's found. The act does not constrain the provincial areas of jurisdiction into which parliament can intrude. None of the regulation making provisions, the section 7 provision, prohibition or the section 16 gate keeping decision ensure that a project that's going to be subject to the act will be sufficiently connected to a credible federal head of power. So if we consider this response that while judicial review will clean up the concerns, we submit the framework over reaches for the reasons we've been discussing. And this notion of a funneling down to the decision making point really doesn't support its constitutionality given the breadth of the definitions of effects or changes to the environment which can be positive or negative. The concepts of effects in federal jurisdiction which in relation to, for example, indigenous peoples captures virtually every possible way that a matter could possibly impact or touch indigenous peoples. These examples are not examples of language of restraint. And we say that...
Why don't you finish your sentence? If we accept the submission yesterday that in fact We cannot I credit you.
the act itself given this this scheme of the act in the purpose of the act title of the act constraints the red making power to only those projects that have the potential to have significant impact on these areas with that address you know your concern at the front end i understand your point on decision making but with the submissions that you're making right now uh... would they be addressed if in fact uh... there were those kinds of existence constraints would judicial review not be available to determine whether uh... a designation of a project actually fit within the constraints of the uh... red making power of the act
Well, it may just provide some assistance, but our submission would be that that would not really address the larger concern that this is really a regime that does not provide those kinds of guardrails in its language. Section 109, which is the regulation making provision, doesn't provide those sorts of boundaries and I appreciate that those types of limitations I suppose could be read in, but on the face of the language, those don't appear to be present. And at a certain point, respectfully, when the answer to concerns about the act being ultra viris, is that, well, at section 7 or section 8 or 9 or 16, the screening section or the decision making section is that judicial review will look after the overreach on these multiple pinch points if we can put it in the legislation. We would submit that there's a fundamental problem with the underlying statutory framework.
To me there's a difference. I mean, every statutory provision will give rise at some point to a degree of uncertainty. That's just the nature of the use of language. And so legitimately, even in constitutionally valid legislation, well-drafted, there will be occasions when the boundaries of what meaning is to be given will be tested in a particular context. But it seems to be, and that's where you've got judicial review. It seems to me that's different from setting up a scheme which is like an open, wide pathway to just making federal decisions based on matters which are in provincial jurisdiction and saying, if you don't like it, sue me. And all you have is just a flood of litigation because that's what the legislation sets up.
Thank you, Justice Rowe. I certainly would concur with that.
Well, can I get you back to the statement of public interest? You need a federal head of power to get into the act. I know you say that they're too broad, but let's assume that when we're going through something in section 16 so that there's a federal power that triggers an impact assessment. And at the very end of the decision making, there is a tether to an obligation to only put conditions that are related to a federal head of power. So I'm bookending the legislation that way. So it seems to me that one of your major concerns is that when you get into the decision-making process of the public interest, that it's too wide and too invasive. That it's not, that decision-making process isn't also tethered to federal heads of jurisdiction. And I guess what I'm asking there is after Old Man, when they're talking about a consideration of the issues, are you saying that the feds can only consider the federal adverse impacts and not in the public interest deal with provincial legislation? Because it seems to me, while Old Man may not have addressed that directly, we have cases like Quebec and N.E.B. and Red Chris. They're not constitutional cases. I understand that. But they're interpretive cases of legislation which says that in an environmental impact assessment, the federal government can in fact take into account in the public interest things that may otherwise fall within provincial jurisdiction. Because I get kind of fuzzy there in terms of what can be considered. Exclusive, exclusive, something kind of shared because of the obtuse nature of environment. What do you say? Can you take into account in that central section something that's provincial?
Well, I think that certainly it would be unrealistic to totally confine it to matters within, you know, one order and another. But the concern here and the way the impact assessment act is drafted is that when the decision making on a federal issue comes into play, it's not bounded and funneled back to the fundamental federal issue. It's a public interest decision about the project as a whole, which is not grounded necessarily in that federal tether that you mentioned. And I think that's the fundamental objection here, is that the IAA is not structured in a way that brings that sort of discipline.
But would it be cons would it save it constitutionally if there was a requirement on the consideration public interest stage to to to have for want of a better word some kind of proportionality assessment that if your grounding is is in the following it's in fish it's in birds it's in indigenous that the response has to be related to tied to not larger than those things that you claim for your power that.
that might assist justice Martin. I'm not sure, you know, that again we have to deal with the concern that here you're going beyond the actual question of the decision or the permit because in some cases there isn't even a permit that has to be issued. And that's why the decision making is focused on the project as opposed to, you know, the specific
Can I ask you, does it matter how we think of the question? You've said it's a question about whether the whole project is in the public interest. If we start with the proposition that it requires likely adverse effects on areas of federal jurisdiction and that any conditions have to be tied to that. And so if the only thing you could consider was adverse effects in federal jurisdiction, then clearly it wouldn't be in the public interest. So if you think about it as, well, there are adverse federal effects, but is it nonetheless in the public interest to allow this to go ahead? Notwithstanding the adverse federal effects, there are other factors unrelated, perhaps, to federal areas of jurisdiction that would nonetheless justify it going ahead. If you think of the public interest as really an exception to the adverse, the negative impact on the areas of federal jurisdiction that can't be mitigated, does that make a difference? Because if you read the act that way, it seems to me it's not a question of whether the project is in the public interest. It's whether allowing those adverse impacts on areas of federal jurisdiction is nonetheless in the public interest.
Again, it may go some way, Justice, but again, the concern is the unbounded language here is such that when you then go to the other factors in the public interest, you have a whole suite of other issues that the decision-maker has to take into account, which again are not necessarily tied to federal jurisdiction, including the sustainability that Justice Kassar had referred to, the government's commitments to climate change, etc. And I'm sorry, Justice, I'm just trying to grapple with...
the language of Justice LaForez's language in Old Man River.
Thank you. Yes, I do very quickly want to allow my friend to address the court. Thank you.
Good morning, Chief Justice, justices. I'll do what I can in the next four minutes here. There's a few things that maybe I'll just elaborate on in terms of the section 7 in particular and the prohibition and the consequences of that prohibition as well as section 9 and then go back to the decision making process. The ‑‑ where this starts is with the physical activities regulation. So it's very clear from the outset that what we're regulating are physical activities. When you go to the regulation, it includes lists of works and undertakings. Some are provincial, some are federal. What's important when you read that is it includes the entire life cycle of the work or undertaking. It includes construction, operation, dismantling and abandonment. So the entire life cycle of a provincial or a local work or undertaking is caught by the regulation. You then go to section 2 of the act which defines what a designated project is and it includes all those things plus all physical activities that are incidental to that. And there you have to use your imagination. What does that include? Presumably that includes the entire life cycle of those things as well. Then you look at the broad definition of effect which we talked about, positive, negative, social, economic, environmental, very broad, health related and you take those two definitions and you plug it into section 7. And what it says is a proponent cannot do any act or thing in relation to the entirety of that designated project whether there's any federal decision making function at all until it's either screened out or there's a positive public interest determination made.
that the project proposal could do would be something positive.
absolutely and and that's part of the problem is that this that section is not in pith and substance something that can be properly tied to the various heads of power that Canada claims because it's so broad it's an effect there's no significance issue whatsoever and I think what I wanted to raise which we really haven't covered is Canada says it's easy just don't do those things but what are the consequences of getting it wrong under the legislation it's an offense to breach section 7 have any effect positive negative we talk about significance when you go to the offense provisions it doesn't say a significant effect it's any effect positive or negative is an offense under the legislation with penalties that are as high as eight million dollars per day per offense keeping in mind that these are continuing offenses which means that each day and every part day that the offense continues is a separate offense.
You say that Moses is wrongly decided then when Justice Binney said, well, if a mine has an impact on the fish and a permit's required and the Minister of Fisheries can say no mine unless you address the issue with regarding fish, the mine doesn't proceed. That's a provincial project within provincial jurisdiction. And there's a, you can call it a veto if you like in the permit. It has to, it can't proceed without a permit. So do you impugn that? You said that that was wrongly decided.
Well, I read the decision slightly differently, I don't think it necessarily said that the entire project was cancelled. I think that that is one of the fundamental differences about this legislation as compared to its predecessor legislation. Couldn't proceed. It couldn't proceed in that case because presumably they were trying to mine in an area where there were fish habitat. The cases are full of other examples of, for example, a bridge which triggers the federal jurisdiction that merely grants access to a much larger provincial project. Let's say, for example, a provincially regulated energy power project and the federal role is very small in that case and under this legislation it would capture all of it and there's no ability to scope the project down to something narrowly and more focused on federal jurisdiction which is something that you could do under the predecessor legislation. It is the designated project in its entirety from beginning to end. It treats local works and undertakings as if they're federal works or undertakings. There's no distinction. You can take a local work and undertaking under the regulation or a federal work and undertaking, plug it into the statute and there's no distinction. You know, so the penalties are significant. In terms of the decision making process, and I know I'm over time, sir, if I may continue. In terms of just getting to the decision piece, as we said in our reply factum, one question that Canada has never answered is what happens if it's a negative public interest determination? And the answer is the project is stopped in its entirety. There is no basis upon which to proceed under the legislation. I think my friend incorrectly said yesterday that you could have a negative public interest determination and then proceed with conditions. That's not accurate. The only way you get to conditions is if there is a positive public interest determination. And if you don't get that positive public determination, you're back to Section 7 and you're back to Section 7-1 and there's very broad prohibition, which I say is really open to the imagination of the particular bureaucrat of the day.
The court will take a break of 15 minutes. The court is closed. Josh Unter.
Thank you Chief Justice. Before I begin, just there is the matter of Ontario's motion for fresh evidence. I'm happy to answer any questions the court may have based on the written submissions, otherwise I'd ask that it be admitted.
We'll decide the issue eventually.
Can I, would you mind if I asked a quick question, Chief? Sure. Is it your position that if Palmer is not, first of all, is Palmer met? And is it your position that if Palmer wasn't met, we could admit it anyway? We could admit the evidence anyway.
of course the court reserves discretion to admit evidence on whatever grounds it sees fit but we do submit Palmer is met it's fresh was not available at the time it is relevant to an issue in this case which is about what I'm about to get into is what are the legal and practical effects of this legislation and it could help the court decide in a matter that um this acts effects go beyond those of just regulating federal effects and it does
And it has an impact on the definition of the put in substance.
Yes, because it helps show the extensive legal and practical effects this Act has that puts its pits and substance actually regulating the undertakings themselves, not just reviewing effects much less significant effects on federal jurisdiction.
decisively, I mean potentially decisively in your view.
It's obviously, decisively is always a factor that goes into how much evidence, but it's, we actually are seeing how the Act is being applied and the, well, we would say scope creep and overextensive when a small designation on a particular matter in one particular area of a linear project that covers 40 something kilometers is stopping the entire project for years. So on that note, that is Ontario's primary submission is that the Act is in pith and substance a matter that regulates works and undertakings, quah works and undertakings, not just by assessing their effects. Our alternative, if the court finds that it does merely regulate the effects of those works and undertakings within federal jurisdiction, is to say that several of the alleged areas of federal jurisdiction are not actually federal jurisdiction. In particular, parliament does not have a general jurisdiction over the impacts of local works and undertakings on other provinces or outside Canada. And secondly, it does not have a general jurisdiction to consider whether matters should be criminalized that are not yet criminalized. For example, impacts on species at risk outside of federal lands. So on the first point, contrary to my friend's submissions yesterday, the legal and practical effects of the Act are part of the pith and substance analysis. This court has repeatedly stated it is not just a matter for judicial review in particular cases. To be blunt, the broad scope of the Act is part of the Act. It is the intention of the Act. It is the legal effect of the Act. It is not just a matter of overreach in particular cases, although of course federal decision makers may go even further in those particular cases. The Act's effects demonstrate that it is in pith and substance legislation in relation to whether works and undertakings are in the public interest as defined by Canada. And thus, insofar as it applies to local works and undertakings, non-renewable resource production, electricity generation, it is ultra-virus. That's not to say that those projects are not subject to federal regulation. Of course they are. But what Parliament cannot do is regulate the project qua local work and undertaking. And several of the justices asked my friends from Alberta questions, but what if the Act was more limited? We have to look at the Act as it is, not how it might have been. Our submission is that it is not tenable, given the text of the Act, for example, the broad prohibitions on taking any activity, to suggest it is limited to projects that have significant impacts on federal jurisdiction. The only reference is the significance of the Act.
In your written argument, in any event, you go further than this, quibbling with characterizations and classifications. You say colorability is in play here, which is a big claim, and so I'm wondering if it's justified here, and if you need it.
Well, I don't think we need it. I think it is justified. I mean, colorability is really just a way of saying the incidental effects of a project are so far beyond the scope. As this court said in Canadian Western, that they place the act in a different light. So as to place in another constitutional head of power. And that's what we submit to happen here. There's no mens rea requirement for colorability. So when we're referring to that, we're saying parliament says, I think Justice Rowe put it, they said we're regulating the frogs. But what they're really doing is regulating the highway. And that those incidents will effects say that the pith and stuff when you get the classification stage are really a matter of provincial jurisdiction insofar as it applies to a provincial project. Of course, it's different. We're talking about a railway or a nuclear power plant or an airport or what have you. And there's no thresholds in the act that the input stage, the starting the process years of delay, but limit the minister in any way, there's no reference to significant impacts. Just any thing with the minister thinks there's public concern about potential impacts. Just yesterday, the minister asked the agency to study the impacts of building homes in Scarborough. And if he doesn't like the results of that study, he can shut down development needed to provide Ontarians with homes and fight the affordability crisis.
There are some very old woodpeckers. They seem to be there under the Migratory Species Act. They must be pretty old because Canada became independent from the British Empire in 1931. But I read from the newspaper, a very reliable source, there is a problem with woodpeckers.
That could be, or maybe turtles or what have you. But in any event, if the federal government designates those developments, as the minister put it, these projects won't be allowed to go forward. That's very clear. And once the minister designates a project, it can take years before the IAA even approves a project description, much less decide whether you have an assessment, hold the assessment, determine whether there's any effects in federal jurisdiction, much less significant effects. And a linear project like a highway shows the real problems with the act. So it's not like Oldman River, or not like the bridge example my friend gave, where there's a project that projects impacts the fish or navigable waters, much less more debatable federal powers like wildlife generally under the criminal law power or inter-provincial pollution. It doesn't say don't build the bridge. It says you can't do archeological work 40 kilometers away to do the provincial environmental assessment unless you wanna take the chance of risking $8 million a day fines. And the impact assessment agency won't even tell you if you can go ahead, they'll say, well, you figured out, you take the chance and if you're wrong, well, hope you wanna pay those large fines. That is regulating the undertaking. And then ultimately the project cannot proceed at all unless there's a positive public interest determination. And so if parliament wants to regulate local works and undertakings, there's a constitutionally proper way to do so. Make a declaration that the undertaking is a work for the general advantage of Canada. They've done that for grain elevators and local railways and dominion water works and all sorts of other works undertakings. But if they don't do so, federal authorities should not be able to judge whether a local undertaking as a whole is in the public interest. And so we asked this court to make that firm application of the Pith and Substance Analysis, characterize the act as being in relation to undertakings and then fine insofar as those undertakings are local, it is ultra virus parliament. And read it down to only apply to those undertakings within parliament's constitutional jurisdiction. If I'm wrong on that point, and we're talking about particular heads of power, we still say that there are two heads of power that do not fall within federal jurisdiction.
Can I just ask you again though?
If it's about undertakings and if it's local, no. If it's federal, okay. So you're saying that impacts is not a legitimate, impacts on areas of federal jurisdiction is not legitimate? It's only for actual undertakings that are within? Okay.
No, what I'm saying is this act that does, that when you read the act in its entire context and what it actually does on the ground to a provincial project, look at the whole thing, look at this bevy of factors, socioeconomic impact, sex and gender analysis, Canada's sustainability, Canada's international treaties, which of course are not necessarily within federal jurisdiction to implement. This act is actually in pith and substance regulating the undertaking. A more defined, a more limited environmental impact legislation, clearly the guidelines order in Old Man River, other matters such as perhaps see it in 1998, maybe even see it in 2012, that's a different story. But when you look at this act and what this act actually does, it goes too far.
Are you suggesting that the Attorney General of Canada and the Parliament of Canada are seeking to circumvent the Labour Convention's case?
I think Parliament is well aware of the limits on its constitutional jurisdiction, and of course if those are within federal jurisdiction, Labour conventions, we amended the constitution to make it so, that's one story. But Canada has not met the test this court established in the greenhouse references to show with evidence that it has to regulate every work that has any, not significant, any effect, positive or negative, on the environment outside that province or outside Canada. It has not shown that provinces are incapable. It has not shown that everyone, that any of those changes pose a risk of quote unquote brave consequences. And so it doesn't have national concern jurisdiction over that. I think that's the... Same as on the wildlife context, it does not have a general jurisdiction. Yes you do.
I think that Justice Jamal has a question, the last question for you because your time is up.
Well, I was just going to ask about the comment you just made about trans inter-provincial and trans border pollution. So I recognize the greenhouse gas reference set out a test for the national concern doctrine to apply, but and Justice Grecold didn't really get into that in any great detail. She did refer to the case, but not didn't apply the test as articulated by the court. I guess the question is, if Canada doesn't have jurisdiction, who does?
the provinces acting collectively because the question is, is a local undertaking going to produce effects outside Canada or outside the province? And that was actually the ratio of inter-principal cooperatives despite comments that were made about it. The province where the undertaking is can regulate it because it's a local worker undertaking or the matter is subject to 92A. Canada only gets jurisdiction over that local worker undertaking if all the steps of the detailed test set out in the greenhouse gas references are met and they are not met here. There's no grave impact for many just because you have some change in the environment outside of one province. Thank you very much. Thank you.
M. Frédéric Perreau
Merci, Monsieur le Juge en chef, Mesdames et Messieurs les juges. Vous aurez peut-être besoin de mon recueil condensé, dont je vais citer quelques extraits. Donc la principale préoccupation du procureur général du Québec, le PGQ, dans cet appel, est de préserver l'équilibre du fédéralisme et l'application symétrique des doctrines du caractère véritable et de l'exclusivité des compétences. En d'autres mots, ce qu'il demandait à cette cour, par souci de justice, c'est que les lois fédérales ne reçoivent pas un traitement plus favorable que les lois provinciales. Le procureur général du Canada, le PGC, vous plaide abondamment le fédéralisme coopératif, le double aspect, sans toutefois faire la distinction entre les aspects. On sait que dans le cadre général de la doctrine du double aspect, il faut qu'il y ait une distinction entre les aspects. Donc il vous plaide ces éléments pour défendre la validité de la loi et du règlement. Cependant, ces arguments, le PGQ les a plaidé sans succès dans les affaires, dans des affaires soulevant des questions similaires, notamment dans la ville de Mascouche, IMTT Québec, et à titre d'intervenant dans le renvoi relatif à l'Environmental Management Act. Donc ce que plaide le PGC à l'égard de la loi et du règlement a été rejeté à sa demande par les tribunaux à l'égard des lois provinciales analogues qui prévoient des régimes d'autorisation en matière environnementale. Pratiquement, ce que le PGC paraît demander à cette Cour, c'est que soit permis à l'ordre fédéral ce qui n'est pas permis aux provinces. Il vous demande d'approuver des chevauchements de compétences importants à l'égard de projets qui sont des ouvrages et entreprises locaux, alors que l'application des régimes provinciaux dans le cadre de projets fédéraux a été cartée par les tribunaux à sa demande. Simplement donner droit aux arguments du PGC compte tenu de la jurisprudence actuelle minerait la part d'autonomie que la constitution garantit aux provinces. Dans l'arrêt Belle-Canada de 1988, à l'onglet 1 de notre cueil condensé, le juge Betts discutait de la prudence à favoriser dans l'application de la notion double aspect. Il soulignait, et je cite, « le risque d'unifier ces deux champs de compétences exclusives en un seul champ de compétences, plus ou moins, conjointes régi seulement par la règle à suprématie des lois fédérales. Il jugeait d'ailleurs que rien ne pourrait contredire plus directement le principe fédéral. Ce qui serait peut-être plus contraire encore au principe fédéral et à l'égalité des ordres de gouvernement à la recherche d'un équilibre entre leurs compétences respectives, ce serait d'appliquer la théorie du double aspect en faveur des lois fédérales et ne pas le faire en faveur des lois provinciales de même nature. Les provinces et l'Ordre fédéral, il faut le rappeler, sont des entités coordonnées, non subordonnées, autonomes dans l'exercice de leur pouvoir, un principe que le Conseil privé a bien exprimé dans la fin des liquidateurs de la Banque maritime dont vous avez un extrait à l'onglet de doute. »
Maitre Perrault, je ne sais pas si vous défoncez une porte ouverte, peut-être pas, mais il me semble que vous avez intérêt, vous l'avez fait dans votre factum, d'ancrer votre argument dans le champ de l'environnement.
Je suis tenté de vous demander, est-ce que vous acceptez le cadre d'analyse de Old Man River? Est-ce que c'est à dire que le... qui reconnaît justement à la page 68 que les provinces peuvent de la même façon œuvrer dans le domaine de l'environnement, en vertu de leurs compétences législatives à 92? Il n'y a pas question de ça, mais pour ce qui est de l'évaluation de l'environnement, il y a une façon de faire. Est-ce que vous acceptez ce que monsieur Laforet, le juge Laforet, dessine comme la marche à suivre?
Je vous remercie de votre question, M. le juge Casirat. Premièrement, il faut considérer les différences entre le régime en cause dans l'arrêt Oldman et dans la présente affaire. Dans l'affaire Oldman, ce qui est en question, c'est seulement le décret sur les lignes directrices, non pas les pouvoirs décisionnels qui étaient en cause. Les pouvoirs décisionnels étaient prévus par des lois fédérales particulières, mais ce qui était vraiment en cause dans l'arrêt Oldman, c'était le décret sur les lignes directrices, donc l'évaluation environnementale elle-même. Ici, vous avez un régime d'autorisation dans la loi sur l'évaluation d'impact. Il transparaît des articles 7 et 60 et suivants. Or, ce que nous vous plaidons, en fait, c'est que dans la jurisprudence qui concerne les lois provinciales, comme la loi sur la qualité de l'environnement, à l'article 22, 31.1, 31.1.1, les affaires Mascoche, les affaires IMTT Québec, nos tribunaux au Québec ont jugé que ces régimes d'autorisation-là, auxquels est accessoire, comme l'a jugé la Cour d'appel, le régime d'évaluation des impacts sur l'environnement. Donc, ces régimes-là, les tribunaux québécois les ont jugés inapplicables à des projets qui constituent des activités, des ouvrages fédéraux. Dans un cas, c'était l'aménagement d'un aérodrome, d'un aéroport. Dans un autre cas, c'était l'aménagement et l'utilisation de la propriété publique fédérale pour des fins d'exercer une activité fédérale. Donc, le cadre de l'arrêt aoudemens, écoutez, on l'a plaidé inextenso dans les affaires Mascoche, IMTT, sans succès. On a essayé de se pourvoir à cette cour. Bien entendu, la demande d'autorisation d'appel ayant été rejetée, on doit se rabattre sur les motifs de la Cour d'appel pour trouver l'état du droit. Donc, pour nous, l'état du droit en ce moment est tel que des régimes d'autorisation ne peuvent pas s'appliquer dans le cas des projets fédéraux, les régimes d'autorisation provinciaux ne s'appliquent pas. Et la même chose doit être reconnue au niveau des lois fédérales qui prévoient des régimes d'autorisation en matière environnementale pour préserver la notion de symétrie, la notion d'équilibre du partage des compétences.
Vous nous demandez d'appliquer le même raisonnement, Mme Perreault, que dans les décisions de masse-couche et autres décisions, en disant ici le régime d'évaluation fédérale ne devrait pas s'appliquer à un projet provincial.
Oui, puis j'allais l'expliquer, là j'aurais peut-être pas le temps de le faire, mais la notion de champ d'application a de l'importance à la fois au niveau de la validité, mais aussi au niveau de l'exclusivité des compétences. Donc, que ce soit à un niveau ou à l'autre niveau, ce qu'on dit c'est qu'au final le résultat doit être le même. Bien entendu, il appartient à cette cour de révisiter les principes qui ont été énoncés dans IMTT, dans la ville de Mascoche, mais aussi dans le renvoi relatif à l'Environmental Management Act, ou encore dans circonscrire la portée. Par contre, ce qu'on vous soumet, c'est que le résultat au final doit être symétrique. Il doit y avoir la même part d'autonomie accordée aux provinces que celle accordée aux fédérats.
Mais ceci ne s'oppose pas à l'application d'Oldman River, l'idée que, à cause de son caractère accessoire, dit le juge Laforêt, l'évaluation des incidences environnementales doit se rattacher à un chef de compétence fédéral. Et dans la mesure où c'est fait, je suis à la page 72, la porte est ouverte. C'est-à-dire c'est possible. Vous n'y êtes pas ça tout de même.
En fait, l'interprétation que vous faites de la re-holdman me semble se distinguer un peu de celle que la Cour d'appel a fait. Si vous tournez à l'onglet 6, vous allez voir dans les extraits qui sont mis en évidence que la Cour d'appel a jugé que ce qui avait été dit dans la re-holdman, c'était que l'évaluation, ça c'est au paragraphe 224, l'évaluation environnementale doit être rattachée à une compétence constitutionnelle préalable portant sur le projet lui-même. Et si vous vous souvenez bien, dans Holdman River, le projet lui-même avait une composante fédérale parce que c'était une obstruction à la navigation, puis on sait qu'en vertu que ce soit de la commande là ou encore des statuts préconfédéraux, il y avait une règle, c'est-à-dire qu'il conférait le droit public de navigation, et par exception, une obstruction qui viendrait gêner la navigation doit être autorisée par une loi du Parlement pour pouvoir déroger à cette règle générale. Donc, il y avait une composante du projet dans Holdman River qui devait être autorisée. Donc, ce n'était pas seulement la production d'un effet externe, d'une externalité, mais c'était un élément du projet lui-même qui devait, qui avait une, qui relevait, c'est-à-dire de la compétence du Parlement fédéral. Et c'est ce que la Cour d'appel a semblé juger dans IMTT. Bien sûr, si la Cour d'appel a erré à cet égard, ben on vous invite évidemment à faire une clarification d'un énoncé du droit qui va nous permettre par la suite de faire les distinctions appropriantes entre l'affaire IMTT et des affaires sous-sécantes. Mais le message fondamental qu'on veut vous faire aujourd'hui, c'est que le résultat final de cette revue de la jurisprudence, de cette application des principes de la jurisprudence qui a été développée en regard des lois provinciales, doit être symétrique.
Et si vous n'avez pas d'autres questions, ça compléterait mes représentations. Merci.
Thank you, Chief Justice, justices of the court. I intend to address a couple points in my time. Firstly, the importance of provincial autonomy to Canadian federalism. And secondly, the significance of the principle of subsidiarity and how it may apply as an interpretive aid in this case. Canada's assertion that the IAA's regulation of provincial projects is within its powers raises questions about the very nature of Canadian federalism. This court has repeatedly emphasized that protection of provincial jurisdiction is essential to the democratic principles of our constitution. In reference to the succession of Quebec, the court wrote at paragraph 58, the principle of federalism recognizes the diversity of the component parts of confederation and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction. The federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective, having regard to the diversity. And then the court went on at paragraph 66 to say, a federal system of government enables different provinces to pursue policies responsive to the particular concerns and interests of the people in that province. In our versus Camel, this court again discussed federalism and jurisdictional balance as foundational principles underlying the constitution, writing at paragraph 85, in discussing regional diversity within a single nation, that a key facet of this regional diversity is that the Canadian Federation provides space to each province to regulate the economy in a manner that reflects local concerns. In 113957 Canada Limite, the Spray Tech versus Hudson decision, the court emphasized the significance of local economy, local autonomy to democracy. In that case, at paragraph 49, Justice LeBel wrote, a tradition of strong local government has become an important part of the Canadian democratic experience. This level of government usually appears more attuned to the immediate needs and concerns of the citizens. And then more recently, in references read Greenhouse Gas Pollution Pricing Act, Justice Rowe in dissent, emphasized the importance of provincial autonomy in the Canadian Federation, writing at paragraph 64, that the Canadian Federation guarantees the autonomy of both orders of government within their spheres of jurisdiction. Their relationship is one of coordination between equal partners, not subordination. And then Justice Rowe went on to quote, then Professor Pigeon, saying, autonomy means for a province the privilege of defining its own policies. So our submission is that respect for provincial authority and autonomy is fundamental to Canadian democratic principles. And to tie this back to the present case, I would ask the court to consider the general thrust of those principles and compare them with the minority decision in the Court of Appeal, where at paragraph 451, Justice Grecoil, in using the metaphor with respect to water and nautical terms, said that we in this country are all in the same boat. The division of powers provides multiple possibilities. And in many instances, no assurance that we will all row in the same direction. She wrote that our planet is on fire and we need water, not heat, and we risk running aground. Our submission is that there's two fundamental problems here. One is that, to use the metaphor of the rowing the oars, as I hope the principles I've just discussed point out, the whole point of confederation was that the oars are to be permitted to be rowed in different directions, depending on who's holding the oar. There's no overlying control over to which direction they go, that's the whole point. Secondly, the concession of the oars is that the oars are to be permitted to be rowed in
discussing the need for water and saying we risk burning our grounds, we see that the real thrust here is a policy preference. And somehow the federal government somehow is best suited to address issues, which I think we can infer here is primarily about climate change. And we know from Reference for E-Securities Act and ERR versus Como that policy, the question on division of powers case like this is squarely constitutional compliance, not policy desirability. So we would submit that the approach used by Justice Greco in her dissent suffers from those defects. and
It may be a little bit deficient as well in terms of the use of metaphor, because on the one hand she says we need water to extinguish the fire, but then it is to provide buoyancy for the boat that we're all rowing in the same direction. I'm not sure it helps the analysis.
Yeah, it's a bit of a mixed metaphor, Justice Rowe. I would agree with that. I don't know where boats that put out fires, if they got their water from the sea or if they carry it.
But I would agree it's not a helpful metaphor in this case. With respect to subsidiarity, our submission is that subsidiarity is an important interpretive principle in determining federal jurisdiction to enact the IAA. Subsidiarity was described by Madame Justice LaRue-Dubé at paragraph three of the spray tech decision as follows. It's the proposition that lawmaking and implementation are often best achieved at the level of government that is not only effective but also closest to the citizens affected and thus more responsive to their needs, to local distinctiveness and to population diversity. Professor Hogg discussed subsidiarity, discussed it in his constitutional law in Canada text pointing out that the, the way that powers were divided under the British North America Act 1867 reflected, he said the philosophy with respect to the division of powers was consistent with the principle of subsidiarity. And in his 1993 paper, Subsidiarity and the Division of Powers in Canada, he concluded that while subsidiarity at that time was not in use in this court anyway, the idea that governmental power affecting individuals should be used or should be exercised as far as possible by the level of government nearest to the people is one that has been influential in Canadian constitutional law. Professor Dwight Newman in his article, Federalism, Subsidiarity and Carbon Taxes noted that the framers of the constitution operated with a sense of the appropriateness of local matters being assigned away from central government. He went on to conclude that subsidiarity has come to be recognized as a key structural principle within Canadian constitutionalism and an interpretive key to the division of powers. This court in recent years has recognized and developed this concept. In reference to the succession of Quebec in 1998, the court's discussion of the importance of federalism to democracy did not use the term but did use the language's subsidiarity at paragraph 58 where it said that the federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity. In the spray tech decision, Justice Leroux-Debaie noted in paragraph three that matters of governance are often examined through the lens of subsidiarity. In Canadian Western Bank versus Alberta, Justices Binney and Labelle expressed concern that a centralizing tendency in constitutional interpretation risks undermining the principles of subsidiarity, paragraph 45. And finally, in reference reassisted human reproduction act in 2010, Justices Labelle and Deschamps wrote a paragraph 273 in concluding that the, this is not the quote, but when they were concluding in that decision that the impugned federal legislation was ultra various to the criminal law power that if any doubt remained about their division of powers analysis, quote, this is where the principle of subsidiarity could apply not as an independent basis for the distribution of legislative powers but as an interpretive principle that derives as this court has held from the structure of Canadian federalism and that serves as a basis for connecting provisions with an exclusive legislative power. If subsidiarity were to play a role in the case of Barr, they wrote, it would favor connecting the rules in question with the province's jurisdiction over local matter, local matters not with the criminal law power.
Yes, thank you very much.
Mr. Chief Justice, justices, thank you. I plan to address you on three interrelated points and those are jurisdiction, decision-making and policy. Now, Manitoba takes no issue with how the IAA governs projects that are carried out on federal lands or by federal authorities. And similarly, Manitoba takes no issue with how the IAA applies when federal actors must perform a power or duty under an act of parliament to allow a project to proceed. That scenario in fact has a long history of being upheld by this court as constitutional. But this scheme goes far beyond what this court has previously approved of as constitutional for an impact assessment. The problem for Manitoba is, while we fully recognize the need to cooperate with Canada and with Indigenous peoples to ensure development projects, respect and preserve the environment, we don't see ourselves as needing ultimate federal oversight and approval. We have our own robust processes in place to protect the environment and assess the impacts of our own regulated projects and consult with Indigenous peoples. We don't see the final decision on those activities as properly resting with the federal executive. And that's probably true for many of the attorney generals here today. In reality though, many of Canada's goals are relating to the environment are shared by Manitoba. Nature conservation and climate action are and remain priorities for this province. And Manitoba similarly recognizes that to be effective, environmental impact assessment processes have to give voice to all interested parties. That's Canada, Indigenous peoples and provinces. What we need in these assessments is cooperation and harmony. What we don't need is one party always holding the Trump card. However, no matter what level of cooperation is provided for under the IAA, even to the extent of another jurisdiction carrying out the assessment, joint review panels and such, the final decision here seems to always be reserved to Canada. Now the jurisdiction to impose an environmental impact assessment was discussed in Old Man River. In that case, this court described environmental impact assessment jurisdiction as being auxiliary. The power to legislate on matters of the environment is an adjunct to other powers. And this means that laws relating to the environment require an anchor. That anchor was described by Justice Lafore as something being truly in relation to an institution or activity that is otherwise properly within federal legislative jurisdiction. And so an environmental impact assessment in Old Man River could only affect matters that were truly in relation to a federal institution or activity. And those words of course are on page 72 of Old Man River. Those words institution or activity weren't chosen by accident. In adopting that phrase, Justice Lafore looked to this court's prior jurisprudence on another matter that was also auxiliary to heads of power. And that was language. He cited a case called Divine Against Quebec. And you'll see that also at Old Man River at page 72. The rule in Divine is that for constitutional purposes, the power to enact language laws is divided between the two levels of government on criteria other than the impact of the law on language itself. That power was ancillary in Divine to proper provincial lawmaking power over local institutions and activities. So this court obviously saw an analogy between the principle in the auxiliary power to require environmental impact assessments. Like language, environmental jurisdiction is not based on a constitutional unit itself. Rather it's based upon jurisdiction over activities and institutions. And that's what some various heads of power.
Is there not a parallel, for example, with labor relations? I mean, labor relations. I mean, if you're in the airline business, you're under the Canada Labor Relations Board. If you're working in the 7-Eleven, you're under the provincial labor relations board.
Yes, that's quite right, Justice Roe. I agree with that entirely. Now, Justice Laforet also noted that local projects will generally fall within provincial responsibility. But these are the words he used, federal participation will be required if the project impinges on an area of federal jurisdiction. And that's page 69 of Old Man River. And what this all means in my submission is that federal impact assessments require both a jurisdictional anchor or tether to federal jurisdiction over an institution or activity, and an impingement of that jurisdiction relating to the project. In my submission, the best way, perhaps the only way of demonstrating that impingement, which requires federal participation, is to show, as it was in Old Man River, that a federal decision relating to a matter in federal jurisdiction is required to allow the project to go forward. And generally, that would be a license or a permit. Now, there are obviously many decisions to be made under the IAA. As it relates to designated projects, however, one type of decision is notable for its absence. And it's just that, a federal decision to issue a license or a permit or into some other way authorize an activity that's necessary to carrying out the project. That's been described as the decision-based trigger. And we submit such a trigger is consistent with the notion of an adjunct power to require a process to inform the decision within Canada's jurisdiction over an institution or activity, as the court said in Old Man River.
me the AG Canada yesterday in response to that said that a licensure permit is basically one way of exercising a jurisdiction and they have the jurisdiction whether or not they put in a permanent or licensing requirement what do you say to the the notion that that's just one way of exercising a jurisdiction that they claim
Justice Martin, yesterday I remember the conversation that you had with my friends from Canada and you'd ask them about the change from project-based to trigger-based or project-based triggers and one of your questions was does that make the tether, the necessary tether to federal jurisdiction less tangible? Is it more amorphous? And we would answer that yes and in fact especially in the context of the IAA when we look at the front end it's entirely intangible and untethered in an unsustainable way. It's a sort of we'll know it when we see it approach to the jurisdiction that's being exercised and the theory underlying that is if the project is big it probably has some kind of effect but in the meantime the full weight of jurisdiction has already been exercised by putting the provisions of the act into play and in my submission that's sort of a constitutional horse before the cart. With a decision-based trigger we can be sure that there's jurisdiction to issue a license or permit because it regulates an activity or institution that we will know with reasonable certainty falls into federal jurisdiction.
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Justice DeMauw, what I would say is I would go back to answer that question to Old Man River and the notion that the jurisdiction has to flow over an activity or an institution. And if we're talking about licenses issued for fisheries purposes or a prohibition issued for fisheries purposes that exists in relation to a fisheries act, I would certainly have much less difficulty with that than the present situation which leads to sort of intangible and amorphous jurisdiction at the outset. In my submission, a decision-based trigger also alleviates the problem of materiality, which a number of the panel members had questions on yesterday. If the effect-based trigger creates an intangible and co-hate effect of unknown magnitude, it becomes very difficult to say that anything is actually beyond the scope of inclusion in the regime. And the act certainly seems to presume that a change is material enough to be included. But that whole difficulty in my submission is solved by reaffirming that jurisdiction over an institution or activity rather than a presumed effect is what provides for an assessment, and the essential predicate for that is a federal decision. Another type of decision under the act is notable for what it is, and in effect it's a final decision on whether a project will proceed. That's the public interest determination, and that's taken regardless of whether the activity itself is federal or provincial. Manitoba submits the ultimate decision on how to use provincial resources within a provincial lands must rest with the province. And finally, Manitoba submits that if the power to impose an assessment must be anchored to federal jurisdiction over an institution or activity, the criteria used to develop, to decide to scope in projects for assessments must be anchored in the same way. The scoping in criteria in the present regulations is not anchored in that way, and perhaps the starkest example of that is the 75 kilometer long road. If a road's 74 kilometers long, it prima facie does not fall within federal authority to assess, but if it's one kilometer longer, it does. And of course, a shorter road of any length can be designated under section 9. But a 75 kilometer road won't necessarily cross any waterways. It won't stop birds from migrating or interfere with frogs or travel through reserve lands. What then anchors that 75 kilometer road? What does that one extra kilometer relate to in terms of a federal head of power? It doesn't. There's nothing. This is nothing except a policy choice. And in fact, my friends from Canada concede this in their factum at paragraph 109, the choice of project types to designate is a policy choice. And in Manitoba submission, no matter how important or agreeable policy can't become the basis to pick or choose projects that have no other federal tether. I'm out of time. Those are my submissions.
Good morning. I am making the submissions on behalf of the attorney general of British Columbia from the traditional territory of the Lekwungen people. And British Columbia is making what I believe is a, it takes a unique position, I believe, among all the parties and intervenors here. We say that the Federal Impact Assessment Act is constitutional, but that it is subject to constitutional constraints. And the fundamental constraint is that when evaluating projects within what we call provincial activity jurisdiction, from Justice LaFerre's judgment in Old Met River, such as a mine or an oil sands project or a provincial highway, in those cases, the federal government can require the project to go through the process. It can require the proponent to produce information relating to federal impacts. And it can impose conditions that mitigate those impacts. However, it must defer to the provincial assessment or possibility of assessment of the overall public interest of that project.
That is how I think in your view it should work, but that's not how I read the legislation and it is not how the government of Canada describes the legislation itself. That's the problem I have with your argument. It's about something that isn't there, but if it were, it might well be constitutional.
Yes, well, our constitutional submission is if you can't read the act the way we say, then it would be unconstitutional. But if we look at the provisions from 60 on, and those I think are the key provisions that are at issue, it provides a public interest test that the minister and the governor general and the governor general counsel apply. And there's nothing wrong with that test if it's about an airport or I think no one in fact denies there's nothing wrong with that test if it's an airport or marine terminal. When the province has activity jurisdiction, there is, in our view, no decision to make on the question of the ultimate public interest. And the basis for that is the symmetry principle that just that we have two equal coordinate levels of government in this country. And we know what happens when there are federal undertakings that have impacts within provincial jurisdiction. We know that those are not enclaves. We know that the province can impose rules. But we also know that the province cannot second guess the federal decision that the overall project is in the public interest. And what implies from that is that those conditions must be practically and legally compatible with the project going forward. Contrary to what my friend is Anderson said, we're not saying that the federal government can only investigate. We're saying they can also impose conditions and those conditions can have expense and can take time so long as they are consistent with the project being in the public interest. And we've indicated in British Columbia the leading case on provincial environmental assessment of federal projects is the Coastal First Nations Project, which addressed what I think the court knows are controversial issues in British Columbia. The inter-provincial oil and gas pipelines. I'm surprised you're really...
relying upon a decision by a trial judge that the British Columbia Court of Appeal in the reference on the Environmental Management Act disassociated itself from, and this court adopted the reasons of the British Columbia Court of Appeal. I mean, it's like you're saying, this case that no one signed on for, and it was implicitly disapproved of, the court should adopt it, which is kind of like fighting uphill.
Well, Justice Rowe, I disagree that the Court of Appeal, and therefore this court in the EMMA reference, disagreed with the fundamental propositions in Coastal First Nations. There were some criticisms of specific points, which we don't dispute. But what Justice Nubery said is that the BC Environmental Assessment Act is a law of general application and was unlike the law that was before the court there. And since the EMMA reference, the Coastal First Nations cases continue to be applied in British Columbia. Obviously, this court is not bound by any of that. But we say that this court is facing this fundamental question of what are the constraints when we're in this position. Because if the answer is that the feds can do nothing, that can't be right. That's not consistent with Old Man River. If the answer is they can't have an environmental assessment when there's federal impacts, that's also not consistent with Old Man River. That was a hydroelectric project about generating electricity within the province. So the answer can't be that. The answer has to be that it is possible to have assessment. And therefore, the question is, well, what are the constraints on the assessment? Mr. Mordaert. Thank you.
Well, I was going to ask you, Mr. Morley, I found your submissions very interesting, and I would ask, though, you've proposed, I think, that once there are likely adverse federal effects, really the role should be limited to deciding what conditions could mitigate that. What if the decision is that there are no conditions that can mitigate it? I didn't understand what the next step in your analysis would be.
Well, in that case, the federal government has to ask the question, is this overall in the public interest? And it has to face the reality that the jurisdiction over that question is with the provincial authority. So it can't, it must defer to that, just as the provincial authority must defer to that decision in the reverse situation. And as Mr. Hunter pointed out, the federal parliament does have the ultimate, when we've compared to the notwithstanding clause of federalism, it can under section 9210C declare it for the general advantage of Canada, and then it can take activity jurisdiction. But if it doesn't do that, it does have a constitutional constraint, which is the decision as to whether this is all things considered, taking into account all the social, economic and environmental effects. Is this in the public interest, the benefits that weigh the costs? That decision is in relation to the undertaking. celebrating your description of this serve not to be unconditionally
on 9210C is really nothing short of extraordinary, calling it a notwithstanding clause that's fallen into disuse and encouraging us to revive it in order to save your interpretation of the act rather than describing the conflict which Canada embraces at the decisional moment as potentially unconstitutional. I mean, in a sense, the originality, I mean, I say this in the friendliest of way, but the originality of your position is wrapped up in a thesis that is so extraordinary that it seems to me unlikely to be embraced by whether by this court, who knows, but by your colleagues across the country.
Well, if this court accepts it, then it does, of course, become the law. And what I would say is you can accept it on two bases. You can accept it either as a question of double aspect. And I would submit, if you look at what Justice LaFerre says carefully, he does say there are different substantive jurisdictions. And he specifically distinguishes federal authority over fisheries from federal authority over interprovincial railways, which is the distinction we're making. And so it's possible on that basis. It's also possible as a symmetric inter-jurisdictional immunity principle. Because if there's anything at the core of an undertaking power, it's the decision as to whether the undertaking is going to take place. Well, I want to have a look at that.
Sorry, go ahead, continue. No, no, continue. Sorry. I'm going to interrupt you.
I was very interested, actually, in your argument about the reciprocal character of inter-jurisdiction and immunity, because I didn't take your argument as really reposing on coastal First Nations, but in really the recognition of the reciprocal character of inter-jurisdiction and immunity out of Canadian Western Bank, because it sources the exclusivity of federal and provincial power. But then you seem to kind of back away from it, because as you've said, the power to have final decisional authority over an undertaking, be it federal or provincial, would seem to me to be intrinsically at the core, and that was recognized in COPPA dealing with airports. So I don't know why you back away from that, because that seems to me to be a way of interpreting the Act and applying it in a way that is constitutional, and it is a matter of interpretation, and it doesn't say it's all a matter of judicial review. It's a matter of reading it down in certain applications. So I wondered why you backed away from that in your fact.
Well, I don't back away from it at all. I mean, in Scandinavian Western Bank, the court said two things. It said first that this is a principle that is to some extent disfavored, but it's also said it has to be symmetric. And so we say, well, if it's exactly the same circumstances in which there's a long line of cases that say in the federal context, this is the core, and it would impair the core to say, if the province issues park use permits for the Trans Mountain Pipeline, that's fine. But if it said we're not going to issue it because we think it's not in the general national interest, that's not fine. The same principle can apply under the symmetry principle. So we don't back away from it at all. Thank you very much.
Thank you. Thompson Irvine.
Thank you, Chief Justice. Saskatchewan has intervened in this case because the government views the Federal Impact Assessment to be a significant overreach of federal powers, intruding into areas of provincial jurisdiction. I'd like to make three general points. One is that we say it is a case of overreach. And in particular, what triggers our concerns about overreach is the lack of proportionality. Because we accept that the federal government has interests that a particular project may raise. But the proportionality is a big issue, the lack of proportionality and treating all projects the same. And that was my friend from Alberta made that comment. It treats all projects the same regardless of the particular scope of the federal interest. And it's that lack of focus on the federal interest, which then feeds through to the lack of focus on a federal assessment of the public interest. I understand your point on that.
I understand your point on that but I understand your point about sort of saying that it's a one size fits all model but I just make the general point that doesn't the legislation allow the opting out of the framework at particular points and how are we then to take into account that there's no necessity to go through the full matter to decision making.
I think I would respond to that by saying that the legislation, even if there are opting out provisions, it doesn't take into account that preventory works and undertakings are different in kind from federal works and undertakings. And therefore, the federal government has to recognize that and not just treat all undertakings the same way. Because Section 9210 and Section 92A both say that certain works and undertakings and certain types of natural resource development are exclusive areas of provincial jurisdiction. And the federal government has to take that into account in its Impact Assessment Act. And it has to take that into account in saying, what is the proportional impact that we have? We say that the federal government, we don't have any doubt that the federal government can regulate airports or inter-provincial trains or inter-provincial pipelines, as I said a few years ago in this court. We accept that. But in drafting, what we say is that they have drafted a General Impact Assessment Act that does not take into account the constitutional structure and the constitutional division. And that means that in the… and we don't disagree with… we don't say that a project-based process is per se constitutionally… the switch to a project-based is constitutionally per se improper. That it becomes much more general, much more vague. And we think that the project-based requires greater specificity and greater opting out powers to treat federal and provincial works and undertakings differently, to recognize that there is a more limited scope for federal jurisdiction over 9210 and 92A. And we've given you the constitutional background to the passage of 92A, where the Western provinces pushed for this inpatriation because it was seen as so important to local diversity and control of the local economy. But this Act doesn't recognize that. That's the fundamental problem with it, even if there are some opting out or some pathways gone. As my friend from Alberta says, it doesn't matter what kind of undertaking it is, they're all treated the same. And our concern is that the federal government can't regulate some environmental… can certainly regulate some environmental aspects of things that are under provincial jurisdiction. That's the flip side to the reference re-environmental management. But they can't regulate the core. And Justice Lowe, yesterday, used the analogy of a hook. I, in my brief, have said a magnet. Even if the federal government has a head of power, that isn't a magnet that pulls the entire project under federal jurisdiction. It can't, because then you are doing a project-based constitutional assessment, and we don't think that that's appropriate. In response to the question from Justice Gazirer, where he pointed out Justice Lafferray's comment about the train, federal assessment of the train in Old Man River, we've referred to that at paragraph 51 of our factum. And the bottom line there is, yes, we agree that the federal government could take into account all those various factors that Justice Lafferray mentioned, but the bottom line was the federal government was taking those into account to assess whether or how a federally regulated work or undertaking could then be allowed, the federal train, right, federally regulated train. So we don't disagree that you can take into account a broad range, the federal government can take into account a broad range of factors, but ultimately the decision has to be related to the federal issue.
Mr. Irvin if I could ask how you see it operating so so the magnet or the hook that's a federal head of power opens the door to the assessment the assessment proceeds it proceeds on the basis that Justice Laforay says which is a potentially wide-ranging one that extends beyond section 91 preoccupations and then it retrenches back to a decisional mode which refocuses on the federal head of power is that right is that your position
That would be our position. But unfortunately, we say that the Impact of the Suspension Act doesn't go that way. It treats the project as coming under federal jurisdiction. And I think Justice Kerkasenis' question this morning was, we agree with it, that when you are talking about the public interest, it has to be a public interest based on federal issues. That's not to say they can't take into account positive things. But if they start deciding, should a road be built, not because of the effect that it might have on fish, but should that road be built, should that project go ahead, then they are intruding on provincial jurisdiction.
So could the could the act and in particular section 60 and following the references to public interest be construed by this court in the manner in which you say to save the legislation or are we I think past the We passed the that that stage you
I think it's difficult to construe them that way, Justice Kizur, because when you, they have to, in fairness to the legislature, you construe them in the Act as a whole. And we say that the Act as a whole doesn't have that kind of restraint built into it. And that's the problem when it's applied to matters under provincial jurisdiction.
and may I ask you what kind of restraints you'd uh... billed in uh... for uh... the kind of exclusive jurisdiction that lies under ninety two eight
It would, I guess I'd get back to the question that Justice Jamal asked. He said, is it possible that the federal interest public interest assessment may be so great that they make a decision that has a serious impact on the project? We could see that happening. As long as it's not we're canceling the project, it's we have this particular federal interest that is the issue. And if the federal government assessment process says that a particular federal issue, there can't be in the public interest. That's one thing. But our concern is that it treats this act is about projects. And we agree with Justice Rowe. There's not a lot of constitutional jurisprudence on projects as such. There's an awful lot of constitutional jurisprudence Republicans for our timeline, but is there Pittsburgh they set them up toahahahaha? Is there, is there not it? Is there not Laurel's
There's not a difference if the federal government were to say, I'm going to go back to my dam example, you know what, you're just going to wipe out the salmon resource here. Forget it, the dam is not going in, that's the end of it. Versus saying the dam is not going in because we've decided that it's wind power, not hydro power.
We would agree with that, Justice Rowe, because in the first example of your hypothetical, it's clearly tied to fisheries. But on the second example, the federal government is making a decision on a project on something that is not specifically federal, and both federal and the provincial governments may have different approaches to wind power. But that's a different approach, and we don't think it's an appropriate approach, because that means that a provincial worker undertaking is being cancelled by the federal government, not because of the effect on fish, but because they don't agree with the building of a hydroelectric dam, which is under exclusive provincial jurisdiction under 92A.
So, and I think that is our major concern with all of this is that the, yes.
Thank you. So you had said you can't cancel it, but if in fact the dam requires a permit and the permit is denied on the basis of impact on fish, it could have the effect of canceling it.
It could have the effect, yes, yes, we agree with that. We've always, as I said, as I said, three years ago in front of this court, we accept that the federal government has jurisdiction over environmental matters. And in serious cases, that might cause a result that a province, a particular province doesn't like, as long as it is clearly anchored in the area of federal jurisdiction. And I'm just going to close, because my time is almost up, that with the, our concern is also with the regulations, because the regulations establish a presumption of federal jurisdiction over matters of local works and undertakings, based solely on their size. And we agree with the example of a bridge being built over a river. If Saskatchewan were to build a new highway from Regina to Saskatoon, it's presumptively under federal jurisdiction. But if the reason for that is because the bridge might cross, and a highway might need a bridge, and that bridge might affect fish, or navigable waters, certainly the federal government has jurisdiction over that issue. But it doesn't have jurisdiction over the highway from Regina to Saskatoon as a project. That is still a local worker undertaking, and the federal jurisdiction must be clearly focused on the head of power that is federal.
The court will take a 10 minutes break. Court is closed. Thank you.
The Indian Resource Council, IRC, approaches the issues before this court as an entity who represents over 130 First Nations who produce oil and gas who have the potential to produce. IRC's submissions will make the following two points. One, on issue of legal effect, the Impact Assessment Act, or the Act, removes the ability for oil and gas producing First Nations to determine for themselves what is in their best interest. And, second, on classification, IRC submits that the Act cannot be properly classified under Section 91-24 of the Constitution Act. On the first issue, the effects, it is IRC's submission that the flaw with the Act is that it presumes that all natural resource extraction activities are inherently adverse to Indigenous peoples. The Impact Assessments Act true purpose is not for environmental assessment, but rather a de facto federal veto over oil and gas activity, even if those projects have been consented to by the purported negatively affected First Nation. The Act does this by self-defining federal jurisdiction to include every aspect of the lives of Indigenous peoples. With this hook, Section 7 of the Act then prohibits a proponent from proceeding with the project until a determination is made that an assessment is not required, or until a positive public interest determination has been made and conditions are imposed. If the project is determined not to be in the public interest, then it does not proceed. Section 7 prohibition remains in place. Now there is an exception to the prohibition under Section 7. Under Subsection 4, a proponent may proceed with the project if an Indigenous governing entity has given its consent. But we emphasize, this exception only applies if the effects on Indigenous peoples are not adverse effects. This means, regardless that a nation has worked cooperatively with the proponent and the provincial regulator in addressing impacts, regardless that the First Nation has determined for itself that the impacts of the project were adequately accommodated, and regardless that the First Nation determined that the benefits of the project to them outweighed impacts, the federal government can still stop a project from proceeding, in effect, determining what is the Indigenous group's best interest. This is the paternalistic aspect of the Impact Assessment Act that IRC is concerned with. For on-reserve oil and gas activity, Canada has enacted the Indian Oil and Gas Act and the Indian Oil and Gas Regulations to address environmental impact. Canada's legislation defers to provincial laws in the province where the particular reserve may be located, as those provincial laws relate to the environment and the conservation of oil and gas. By taking into consideration that the Indian Oil and Gas Act already provides for environmental assessment, the only difference with the Impact Assessment Act is that the Minister is now permitted to effectively veto a project even if the First Nation whose reserve is affected has consented. Moving to classification, IRC submits that the Act is not properly classified under Section 9124 of the Constitution Act. The Attorney General of Canada and certain intervenors have argued that Canada's legislative jurisdiction is to protect Indigenous peoples from exploitation by ensuring their participation in the assessment of designated projects. Thankfully, these assertions wrongly presume that Indigenous peoples are victims of oil and gas and are in need of protection. Rather, then accepting Indigenous groups can in fact be benefactors of projects that Indigenous groups themselves can be proponents and can otherwise benefit socially, culturally and economically from projects. There is no need for Canada's protection from projects that are in the overall benefit of First Nations. The Act cannot be said to fall under Section 9124. And it is important to recall that under Section 9.1 of the Impact Assessment Act, the Minister may on request designate an activity over public concerns. This means Canada can still stall a project located on reserve that has First Nations consent while Canada elicits views from outsiders such as non-Indigenous peoples about concerns of impacts to the First Nation. This is contrary to protecting the First Nation, rather it puts general public concern over the interests of the consenting nation. We acknowledge that Section 35 of the Constitution Act is not Section 9124, but that being said, Section 9124 does not create an exclusive federal jurisdiction to consider impacts to Aboriginal rights and treaty rights. Honour of the Crown embedded as a constitutional principle under Section 35 requires that both levels of government, the federal and provincial, consider impacts and those actions are tied to the government action, not otherwise. Thank you.
Thank you very much. Robert Martz.
Good morning, Justices and Chief Justice. Robert Martz, Council for the Intervener, the Canadian Association of Petroleum Producers, referred to as CAP. CAP is an industry group that represents Canadian oil and natural gas producers who produce approximately 80% of Canada's oil and natural gas. Its members are committed to the production of safe and responsibly produced energy. You have CAP's factum, and I do not propose to take you through it. Rather, I will address two issues that have come up through questions over the last two days that go to the heart of CAP's concern in this matter, which is the jurisdiction or reach of the IAA has the potential to cause delay and uncertainty for major projects in Canada, including projects like LNG facilities that are crucial to reducing emissions. As set out in CAP's factum at paragraph two, CAP's main concern is that the IAA will hinder the development of major projects by creating delay and uncertainty through overlapping federal and provincial assessment regimes. A delay and uncertainty by themselves do not make something unconstitutional, but in CAP's submissions, the potential for delay and uncertainty arise from the impermissible creep of federal jurisdiction under the IAA into areas of traditional provincial responsibility. Questions posed by Justices Coté and Martin, among others, raised issues that illustrate the potential for delay and uncertainty from this jurisdictional creep at the outset of the assessment process. In one of the questions to Canada, Justice Martin drew the distinction between the permit-based approach under IRPGO and CN1992 and the project-based approach under the IAA. As part of that question, Justice Martin characterized the project list from the regulations as built on certain assumptions. In our submission, that's an accurate characterization. The project list is based on the assumption that there is a federal jurisdictional hook, something that would connect the project to a federal head of power for each of the designated projects. The difficulty is that a federal hook may be obvious for something like a nuclear facility, but may not be obvious or may not exist for something like a power plant or in situ facility. What this means is that for major projects on the project list, being pulled into the impact assessment process arises not out of a well-defined claim of federal jurisdiction, rather only out of an assumption by the federal government that the project could fall within that jurisdiction. In our submission, an assumption that jurisdiction could exist should not be sufficient to halt the project that may never have effects within federal jurisdiction. The creation of this gray area of creeping federal jurisdiction has the potential to create the type of delay and uncertainty that impact the viability of major projects in Canada. This delay and the potential for unpredictable results is exacerbated by an issue that Justice Cote and many others have raised in regard to the lack of a materiality threshold in the screening process. In situations such as this, where the federal government claims more jurisdiction based only on a glancing relationship to the federal powers and where the threshold level for effects on federal jurisdiction has decreased, the potential for delay and uncertainty caused by federal jurisdictional overreach increases and the constitutional balance is compromised. In CAP submission, a proper delineation of federal jurisdiction and the constitutional responsibility is necessary to guard against the delay and uncertainty that major projects currently face in Canada and will facilitate much needed projects like LNG facilities. Thank you.
Bruce E. Hallsor¶
Thank you, Chief Justice. I'm joined today by my colleague, Josh Blumenthal. The Canadian Taxpayers Federation is a citizens group dedicated to advocating for fairer and lower taxes, less waste and more accountable government. Ordinary citizens really don't care which level of government is responsible for approving or regulating aspects of projects, but they do care that government is accountable for its decisions and that taxpayers and citizens can know which level of government to talk to about projects and aspects that concern them and seek accountability from those levels. In our materials, we cite a 2016 article that appeared in the Osgoode Law Journal, which states that one of the principal reasons why respect for the division of powers in our Constitution is important is the imperative for government accountability. While it is true that the trend in constitutional jurisprudence for many decades has been to add flexibility to the old theory of watertight compartments, a more modern constitutional theory should also recognize that accountability is the buzzword of modern governance. As the Court noted in the inter-delegation reference, the Constitution of Canada does not belong to either the Parliament or to the legislatures. It belongs to the country, and it is there that the citizens of the country will find protection of the rights to which they are entitled. And a part of that protection is that Parliament can legislate only on subject matters referred to it by Section 91, and that each province can legislate exclusively on the subject matters in Section 92. And when a citizens group, an Aboriginal community, a local government, or a project proponent wishes to speak to government about a project, it's important that they know who has responsibility for regulating that project. If there is concurrent provincial and federal jurisdiction assess indicated for some impacts or some aspects of the same project, that's one thing. But when both governments want to regulate the entire project, that can only add to confusion, duplication, expense, and delay. The framers of our Constitution created a system to avoid this, but this legislation runs right through that in my respectful submission. Of course, we recognize that in our modern world and in complicated projects, there will always be aspects of overlapping jurisdiction, and there will be incidental effects visited on one jurisdiction by another. And we have, as you've heard from my friends in the various attorneys general, we have discovered lots of jurisprudence to take care of that. But this legislation is a new leap, and the list of factors in Section 22 of the Impact Assessment Act makes it clear that once there is a federal trigger, which is itself a declarative and very discretionary, there is really no limit to the amount of intrusive scrutiny that the Dominion can give to a provincial project. Section 22.1a is very sweeping. Any examination of changes to health, social, or economic conditions. The other factors in Section 22.1 G and L permitting the federal government to conduct a parallel or second review related to Indigenous culture and values, to consider concepts like sustainability, to consider alternatives to the project and alternative designs of the project, and even to consider in subsection S the intersection of sex and gender with other identity factors. These all go well beyond the traditional levels of federal intrusion, and they do bear to mind the warning by Justice Lafferay and Old Man River about the Trojan Horse. Whenever the federal government is invited to play a larger role in areas of provincial jurisdiction, this triggers an irreversible federal expansion that weakens the sovereignty of provincial governments and makes them subservient and less relevant jurisdictions. In a country with deep regional variations, local autonomy, and the ability for different communities to find a way to make sure that the impact assessment act allows the federal government to assess projects that are clearly within provincial jurisdiction and create waste and duplication in the assessment process that costs money, delay, and impacts local communities negatively. It was recently stated in the greenhouse gas decision on this court that the federal government cannot simply intrude into the jurisdiction of the provinces due to set or desired emission targets. This court stated that federal powers cannot be used in a manner that effectively eviscerates provincial power. This legislation moves far too far in that direction, and I see my time is up. Thank you. Thank you.
Thank you very much. Sean Sutherland.
Chief Justice, Justices, I'm here today on behalf of the Business Council of Alberta. The Council's member organizations include proponents of major projects in various industries captured by the Act. The Council's submissions today focus on the practical effects component of the Pith and Substance Analysis and in particular my submissions will focus on three practical effects that we say are responsive to some of the questions and issues that have been raised in the oral submissions over the past couple of days. First, I intend to address the Section 7 Prohibition. Second, I will address the inadequacy of judicial review to address constitutional overreach. And third, I will address why delay is constitutionally significant rather than a mere efficacy concern. And I'll be making these submissions from the perspective of project proponents. Beginning with the first issue of the Section 7 Prohibition. It's been suggested that under the Act only parts of a project may be halted when the prohibition is triggered, those that may trigger adverse federal effects. However, the practical effect and as a practical matter, the statutory stay as it's been referred to is a halt on all development of designated projects subject to further federal discretionary decisions based on federal policies, priorities and timing. This is because no rational proponent or sophisticated investor would ever one, waste resources proceeding with part of a project while waiting to know if the federal government will approve the whole of it through a public interest assessment that considers broad factors to be exercised by political decision makers such as contribution to sustainability or the broad term of the public interest. Nor too would a proponent risk being offside the federal designation decision finding there may be adverse federal effects by commencing work that could be perceived as causing such effects. If there was any doubt whatsoever. I think it's, I know you're
My time is very short, but I just have to note, some developments, some projects, by their nature, you don't know whether you have a project unless you've put in, wait for it, something like 250 or 300 million dollars. That's offshore petroleum. And so, you put that money in, and then you find out whether you can go ahead. It's a phenomenal risk.
That's absolutely correct, it is. And that actually leads to my second point about the ineffectiveness of judicial review. So starting from a legal proposition, the BC Court of Appeal in reference to the Environmental Management Act rejected this very argument when the Attorney General of British Columbia tried to submit that the court should wait for a condition by condition assessment to consider whether or not that act was off side constitutional grounds. The BC Court of Appeal rejected that argument, as did this court when it adopted the BC Court's reasons. But onto your point there, Justice Robode, the investment that is made into these projects, it's both a monetary investment and a timing-based investment. These things take years to develop. But when they're done, they're developed to capture certain market opportunities, they are done to capture certain timing components, and they are done with an idea that there will be an end to the process, and that a proponent investing in this country as opposed to somewhere else understands when that is. The problem with relying on judicial review is that it injects a lot of additional uncertainty into the process, one of which is the risk of an endless merry-go-round of judicial reviews, which is precisely what is happening to the proponent of the VISTA mine in the Ermanskin case, the reported decision of the federal court that we've referred to in our factum, which is that we're now two designations in, and almost three years into a judicial review process, and we're still on the issue of whether or not the minister properly designated the project. That is far too much uncertainty for proponents who seek to invest in Canada. If I may just briefly, in the time I have left, address my third point, which is that delay and uncertainty are not mere efficacy concerns. These are practical effects of constitutional significance. This court in the Rogers decision found that the orderly development and efficient operation of radio communication is a core part of the federal power over telecommunications. This court, when it adopted the BC Court of Appeals reasons in reference to the EMA Act, also adopted that part of the decision where the BC Court of Appeal referred to the same reasoning in Rogers as being the line, or when the line is crossed between valid environmental legislation and the impermissible regulation of an undertaking. So for that reason, the council submits the delay and uncertainty are not mere efficacy concern to go to the very core of the power. Thank you, those are my submissions. Thank you very much.
Thank you very much. It's Robert Wendels.
Sorry about that. Thank you Chief Justice, Honourable Justices. With my colleague Ed Picard, I have the honour of presenting arguments on behalf of the Woodland Cree First Nation. The Woodland Cree is a proud Treaty 8 First Nation in north central Alberta consisting of four reserves. In our factum condensed book of authorities and our submissions today, we invite the Court to view the Impact Assessment Act at its effects through the lens of a First Nation endeavouring to develop natural resources in a sustainable manner to benefit its members. There are three particular principles or additional lenses, if you will, that we would invite the Court to consider in its review of the Federal Legislation Edition. First, the principles of reconciliation. Next, the interpretation of treaty rights. And thirdly, the principle of subsidiarity. But first, there was a comment that my friends from the Indian Resource Council referred to from yesterday that some interveners viewed the legislation as paternalistic towards Indigenous people. The statement is not wrong, but is just not the view solely of the interveners. The majority of the Alberta Court of Appeals stated at paragraph 316 of its opinion that, quote, restricting what Indigenous peoples are permitted and not permitted to do of their own accord through the prohibitions in sections 7, 1, C, and D, smacks of paternalism. With respect to reconciliation, we submit that reconciliation is a fundamental principle that must be applied in considering legislation affecting Indigenous peoples. As indicated by the Truth and Reconciliation Commission of Canada, reconciliation necessarily includes economic development of Indigenous peoples in Canada. As the majority of the Alberta Court of Appeals stated at paragraph 313 of its opinion, quote, this Court has previously stressed that economic development on reserve lands is in the public interest, unquote, after referring to reconciliation, including economic development of Indigenous peoples in the previous sentence. In this case, the promise of reconciliation can be achieved through the development of natural resources in a sustainable manner to achieve some measure of economic prosperity denied to Indigenous peoples for so long. We further invite this Court to affirm the principles of reconciliation as an important constitutional lens through which to review legislation and state action involving Indigenous peoples. Interpreting the principles of reconciliation as containing an economic development component also accords with a modern interpretation of treaty rights, which are protected, of course, by section 35 of the Constitution Act 1982. The Royal Commission on Indigenous and Aboriginal Peoples advocated for such an interpretive approach in its 1996 report when it indicated that resource exploitation grows from hunting, fishing, and trapping to include logging, mining, petroleum extraction, and hydroelectric generation. Actually, transplanting the living tree to interpretation of treaty rights would assist in allowing Indigenous people a measure of economic prosperity and further the goals of reconciliation. This is an area where principle needs to be put into practice. With respect to subsidiarity, which New Brunswick, from New Brunswick touched upon, it's an underlying principle that informs our understanding of federalism. As the Court of Appeals stated at paragraph 114 of his opinion, Indigenous people occupy a unique place in the Canadian legal and constitutional mosaic. While First Nations people are subject to section 9124 of the Constitution Act 1867, they were also citizens of provinces and territories, to quote from this Court's decision in Canadian Western Bank in Alberta at page 61. Accordingly, the W. West Woodland Cree submit that we should not be excluded from the principle of subsidiarity. In conclusion, we submit that viewing this legislation through these lenses will show that it does not advance reconciliation as it inhibits First Nations from developing natural resources in a sustainable manner, thereby depriving them of a measure of economic prosperity. Thank you.
Thank you very much.
Monsieur le Juge en chef, Mesdames et Messieurs les juges, Hydro-Québec souhaite attirer votre attention sur les articles 42, 43, 58 et 59 du règlement concernant les activités concrètes, qui visent spécifiquement la construction, l'exploitation, l'agrandissement et la désaffectation des installations hydroélectriques, des barrages et des digues. Si on ajoute à cela l'article 22 de la loi, le régime fédéral vise aussi, en ce qui concerne ces ouvrages et ces projets, la planification et leur désirabilité lorsqu'on parle de raison d'être ou d'évaluation de la nécessité. Si on va voir 22t, on voit même que c'est tout autre élément utile que le fédéral pourrait, à sa discrétion, vouloir considérer. Enfin, en regardant les dispositions réglementaires auxquelles on attire votre attention, vous pouvez regarder, vous pouvez constater que l'élément déclencheur, on a parlé de «threshold» hier, c'est la puissance et la superficie, non pas la protection d'une voie navigable ou d'une espèce particulière. Par contre, c'est qu'un pour un.
Je crois un peu mettre l'ortie comme l'exemple qu'on a eu ce matin. Je crois que c'est Manitoba de la route de 75 km versu 74 km.
Exactement. Et par conséquent, pour autant qu'on regarde les projets hydroélectriques, le caractère véritable du régime fédéral est clairement d'en réglementer la construction, les paramètres, beaucoup plus que les effets. Et lorsqu'on regarde ce caractère véritable là et qu'on le compare à ce que prévoit la constitution, on voit que l'article 92 A1C spécifie clairement que la province a une compétence exclusive qui lui est réservée pour légiférer en la matière concernant justement l'aménagement, la conservation, la gestion des emplacements et des installations visant la production de l'énergie électrique. Nous pensons que ces dispositions réglementaires sont un exemple additionnel du caractère invalide constitutionnellement de la loi, mais dans le cas où vous jugeriez que la loi dans son ensemble est par ailleurs valide, il nous semble que les dispositions réglementaires auxquelles je viens d'attirer votre attention sont elles clairement invalides et ultra-viraises. Sur la question de l'exclusivité des compétences, Hydro-Québec est le plus grand producteur d'électricité au Canada, l'un des plus grands producteurs d'hydroélectricité dans le monde. Elle est déjà fortement engagée dans plusieurs projets importants d'électrification pour obtenir ou pour viser une éventuelle décarbonation. Vous comprendrez facilement que dans ces projets-là, il y a une participation importante de plusieurs ministères provinciaux et de plusieurs organismes provinciaux dont on recherche la vallée, ceux-ci agissant justement dans la compétence qui l'a réservée par 92 A1C. Or, la description de construire, la planification, la détermination de l'emplacement, les caractéristiques de construction, les travaux d'infrastructure tombent dans le cœur même de la compétence prévue à l'article 92 A. De la même manière que c'est le cas pour les aéroports, pour les terminaux maritimes, pour les ports, les antennes ou autres ouvrages de télécommunication. Et ici, on ne voit pas de raison de distinguer entre le cœur d'une compétence fédérale ou provinciale pour faire l'analyse. Donc vous dites...
mettre au paragraphe 25 de votre mémoire que le fait qu'un projet hydroélectrique puisse avoir des effets incidents sur des composantes de l'environnement qui relève du fédéral ne suffit en rien pour vous. C'est comme une fin de nous recevoir, c'est aussi simple que ça.
J'irais pas juste dire que c'est une fin de non recevoir, mais ce n'est effectivement pas suffisant. Il faut pouvoir le rattacher à des chefs de compétences fédérales, comme par exemple la loi sur les pêches ou la loi sur les espèces menacées, mais autrement, le régime fédéral ici, lui, vient viser exactement le cœur de la compétence qui est prévue à 92a. Et pour répondre à une question qui a été posée par la juge Martinier concernant comment on organise ça dans la question de la prépondérance, si, comme le suggère Canada, on parle de prépondérance avant de regarder l'exclusivité des compétences, on ne s'y rendra jamais à l'exclusivité et au cœur de la compétence, on aura un argument circulaire qui privera l'article 92a1 de toute signification valable.
Merci beaucoup, M. Lortzé. Merci à vous.
Good afternoon, Chief Justice and justices. I'm here today on behalf of the Canadian Constitution Foundation. I'm hoping that I can be of assistance to this court on two points. First, I'd like to add a few quick points on the discussion from earlier related to the federal effects-based hook and how this feeds in epithin substance. Second, building on the comments from my Ontario friend earlier today, I'd like to add some color to the dividing line between incidental effects on one hand and effects that are so significant that they begin to cross over into the other head of power. I think this is particularly important given the subject matter here often involves undertakings. So starting with my first point, the IAEA's main trigger is housed in the definition of effects within federal jurisdiction. It is the hook by which Canada can reel in projects to this act. We've spent quite a bit of time on this today, so I just wanted to say in our view, the problem with the threshold is it inform, it appears to constrain the operation of the act, but in substance, it provides significant room for the federal executive to step outside of its constitutional boundaries. And this is why picking up on comments from earlier today, we need to drive beneath the federal effects label and can't necessarily use the different subheadings and purposes under the law. And we need to look at the actual effects and at the characterization stage before we move to the next one. And doing so reveals that the effect is that the hook brings its undertakings, whether federal or provincial, and subjects them into an immediate prohibition under section seven. Now, the central point here is that on several different grounds, the IAEA can do this. It can pull various activities and undertakings into the act and often on a very thin basis, as my friend from Alberta has made clear. And once a project in, the federal role enlarges significantly to cover a public interest determination over the entire undertaking. And to use a metaphor, the IAEA's trigger is akin to a 2% tail wagging a 98% dog, to borrow a phrase from Justice McGuigan in the National Energy Board Act reference. Now, this is problematic, especially when viewed in the context of local works and undertakings. And this brings me to a point raised by Justice Martin earlier today and yesterday about the difference between a permit-based environmental assessment and a project-based one. And I think the project-based approach under the IAEA, especially, not speaking of this approach generally, it identifies and targets specific undertakings, irrespective of whether or not they're provincial or federal. And in doing so, the federal government takes on an extraordinarily large role, beginning with a prohibition and culminating in a public interest decision. This is a far cry from a limited permit-based approach under the prior iterations of the act, going back to the guidelines order, which were generally more akin to general laws of application and tied more closely to a federal aspect. And this reality gives rise to important legal and practical effects, which are critical to understanding the true purpose of the IAEA. The targeted, prohibited, and comprehensive nature in relation to the undertaking pushes the pith and substance needle in a different direction and away from where it was in the guidelines order. And that is the other side of this effects coin. It is difficult to construe them as merely incidental as Canada has claimed. As we know from Canadian Western Bank, incidental effects are those that are collateral and secondary to the mandate of the enacting legislation. They don't disturb the constitutionality. However, as we also know from that case, incidental effects can only take you so far. And as my friend from Ontario alluded to earlier, the scale of those effects may indeed put the law in a different light so as to place it in a different head of power. And in this case, it becomes clear that the IAEA begins to brush up against and perhaps even cross that dividing line between incidental effects and impermissible regulation. I'll refer to the court to paragraph 7 of my factum where we try and add some color to this dividing line and what it is. And the BC Court of Appeals decision and the BC pipeline reference reviews many of these cases as well. But I just wanted to add some color to this dividing line here before my remarks conclude. We know in undertaking cases, which is what this is, you move that needle in the other direction into another law when there's a default prohibition, when there's some sort of usurpation or significant restriction on the undertaking, when you're subjecting the undertaking to the largely discretionary control of another, where there's a preventative scheme that invades directly massively into the management and operations of another undertaking, where you compromise orderly development and efficient operation, as my friend was just saying, or where you're regulating, perhaps saying this captures them all, some primary aspect of that head of power. I see my time is up. And we think these cases are persuasive and should be applied in this case. Thank you.
Thank you very much. Thank you. Thank you.
Peter A. Gall¶
Thank you. We represent the Independent Contractors and Businesses Association and the Alberta Enterprise Group, both of whom are very concerned that the structure of our federal system be preserved in this case. We focus both in our factum and in our oral remarks today on the conceptual framework that we hope, well, that we think should be applied in the adjudication of the issues here. And I'll start by picking up on a point that Justice Rowe made earlier this morning when he said it's incorrect from a constitutional standpoint to consider projects as being either federal or provincial, given that both orders of government will typically have at least some jurisdiction over most, if not all, projects. That's very true in the sense that particularly with respect to large-scale projects, they will typically be subject to a range of laws and regulations enacted by both orders of government. But the point I want to emphasize is that under our federal system, only one order of government will have comprehensive jurisdiction over the project as a project, which enables it to consider all aspects of the project and regulate that project as such. And the other order of government will have a restricted jurisdiction over the project, which enables it to only regulate the project incidentally in the sense that its regulation is not of the project as such, but merely incidental to legislation that is validly enacted under another head of power. Now, I want to emphasize, even though it's trite, that under our federal system, both orders of government don't have comprehensive jurisdiction over projects. And I think that has to be kept firmly in mind in this case, to guard against what has been described as jurisdictional creep that slides into comprehensive jurisdiction. And it's our respectful submission that the distinction between comprehensive and restrictive jurisdiction must be strictly policed by the court to ensure that the structure and foundation of our federal system is preserved, so as to avoid unnecessary duplication, overlap, and delay with respect to the review and approval of projects, and as well and importantly, to minimize conflict between the provinces and the federal government over the approval process. Now, to illustrate this point, I want to draw upon the parallel between this case and the BC pipeline case. That case is, in many respects, the flip side of the coin here. It was an interprovincial pipeline, which meant it was fundamentally up to the federal government to decide whether the project goes ahead and on what terms. BC had a restricted jurisdiction over aspects of the province that had consequences with respect to its powers, and the BC Court of Appeal came to examine the scope of the act and concluded that it went beyond the restricted jurisdiction of the province in that the effect of the legislation was to effectively prohibit the operation of the pipeline until it was approved by the province. In other words, the court held that the province was using the hook of the effects on its provincial powers to exercise a comprehensive jurisdiction over the project, which was unconstitutional. And in our submission, this case raises the opposite side of that coin. These are provincial projects within provincial jurisdiction, and the risk here is the same as in the BC pipeline case, that the federal government is using the hook of its powers to assume effectively a comprehensive jurisdiction over these projects that come within the comprehensive jurisdiction of the province. Thank you.
Chief Justice and Justice, his good day. Advocates through the rule of law intervenes in this appeal to make a simple submission. It's that the exclusive nature of the powers granted to the different levels of government under sections 91 to 92A1 of the Constitution Act is a helpful and important principle to bear in mind when evaluating the different arguments in this appeal. This exclusivity follows directly from the text of the Constitution itself. In fact, the words exclusive appear no less than eight times in sections 91 to 92A1, including in the heading of section 92, exclusive powers of the provincial legislatures. And this reflects the fact that one of the framers' primary goals was to protect the regional autonomy of the provinces, which is a concern that exists with even greater force today, given the increasingly diverse nature of the Federation. Exclusivity also helps promote predictability and certainty in the division of powers and is what ultimately empowers provinces to negotiate cooperative federalism initiatives. Now, in making this point, I am not advocating a return to the watertight compartment's view of constitutional law. We can recognize the exclusivity of the powers granted in sections 91 to 92A1 while still accommodating modern constitutional doctrines. And this point was recently made in the EMA reference where the Court of Appeal held at paragraph 105 that it's holding in that case, quote, does not reflect a sea change in the law, a return to watertight compartments of jurisdiction, or a diminution of cooperative federalism. Rather, it reflects the more basic principle that sections 91 and 92 provide for exclusive heads of power, end quote. So what does the exclusivity principle teach us about constitutional law? Now, my submission, an important point to be drawn from it is that a distinction has to be made between concurrent jurisdiction, which is not permitted under sections 91 to 92A1, and limited overlapping jurisdiction, which is. So the Constitution Act does expressly provide for concurrent powers over some subjects, but it only does so for powers outside sections 91 to 92A1, like agriculture in the provinces in section 95. And so when it comes to the sections 91 to 92A1 powers themselves, I submit that the court has to be very careful to develop constitutional doctrines in a way that does not authorize the concurrent exercise of jurisdiction, but only permits overlapping jurisdiction.
I know your time is very limited. I'm going to make my point very quickly. One of the words which leads to the confusion to which you're referring is the word shared.
And does shared mean overlap, which indicates concurrency, or does shared mean two aspects, each of which, when put together, indicate the whole ability to exercise jurisdiction, one from the federal perspective, one from the provincial, double aspect?
So I would certainly say, Justice Rowe, that it means the latter. You know, in my submission, where power is shared, it effectively means that there is a fact situation in which one level of government can really legislate in relation to it, insofar as it legislates in relation, the dominant focus of its legislation is on the specific aspects of the fact situation that fall within its own heads of powers. So it's in that sense that the authority can be shared. It overlaps. But what it can't do is pass legislation whose dominant focus is on the aspects of a fact situation that fall within the other levels, heads of powers, exclusive powers, because that would not just result in the concurrent operation of statutes, which the Constitution permits, it would result in the concurrent exercise of jurisdiction, which is invalid. And so in terms of this appeal, I submit that this has two implications. The first is that if the court were to characterize the pith and substance of the IAA or its provisions as being to regulate intra-provincial projects as activities, i.e., whether or not the project itself should be permitted, rather than to safeguard against the project's adverse environmental effects on matters of federal jurisdiction, in the sense that the federal effects should be prohibited, then in my submission, constitutional doctrines like the double aspect doctrine or cooperative federalism cannot save the legislation. The second point I would make is that parliament cannot seek to regulate intra-provincial projects based only on insignificant federal effects, which I believe Justice Jamal is something you asked about. And I say this for two reasons. The first is I submit it's counterintuitive to characterize legislation that is triggered by insignificant federal effects as having a dominant federal aim at the characterization stage of the pith and substance inquiry. But more than that, I say, the caution that the exclusivity principle requires means that the double aspect doctrine only applies when, as this court said in Rogers at paragraph 50, quote, the contrast between the relative importance of the two features, i.e., the federal and the provincial ones, is not so sharp. So if the IAA applies based on federal effects that are insignificant, then the federal features of the intra-provincial projects won't be of equal importance as the provincial ones. And that means that the double aspect doctrine cannot authorize the assertion of overlapping federal jurisdiction over the factual situation that intra-provincial projects present.
Thank you very much. Kyle and Kid.
Kylan S. Kidd¶
Good afternoon, Chief Justice and Justices. I, along with my colleague, Mr. Murtaza, represent the Explorers and Producers Association of Canada, or EPAC. EPAC is an organization representing approximately 100 junior and mid-sized oil and gas companies in Canada responsible for producing more than 30% of Canada's total oil production, including in situ extraction. In my submissions, I intend to address the following three matters raised in this hearing concerning inter-jurisdictional immunity, or IJI. The first is the interaction between the constitutional principles of IJI and paramountcy as raised by Justice Martin. The second is the ability of this court to recognize new cores of power under IJI. And finally, the third is the potential immunization of natural resource projects from federal legislation. First, the interaction between the constitutional principles of IJI and paramountcy. Paramountcy and IJI are both exceptions to the principle of concurrency and federalism. However, they differ in application. The doctrine of paramountcy concerns the manner in which federal power is exercised and requires that where there is an incompatibility or a conflict that arises between valid provincial and federal legislation, the federal law shall prevail and the provincial law shall be rendered inoperative to the extent of the inconsistency. However, the provincial law is not rendered invalid. This means that if the paramount federal legislation was subsequently repealed or amended, the provincial law would operate in its absence. By comparison, IJI is a restriction on the scope of the constitutional authority of the provincial or federal legislature as applicable. The doctrine of IJI is rooted in the idea that there is a basic, minimum, and unassailable content to the heads of power under sections 91 and 92 of the Constitution Act that must be protected from impairment by other heads of government. There is no requirement for inconsistency or conflict between provincial and federal legislation for IJI to be applied. Where IJI is applied, the law enacted by the impairing government remains valid, but is of no force and effect on the recognized core of the head of power. Arguably, where IJI is applied as against federal legislation, the core or head of provincial power would be paramount. Second, IJI does not require a precedent to recognize a section 92A1 core head of power. EPAC's response to this issue is set out fulsomely in paragraphs 12 to 16 of its factum, and I don't intend to take the court through that today. However, I do wish to draw the court's attention to its decision in insight, which is found at tab six of EPAC's factum, where it expressly acknowledged that the lack of precedent for a core of a head of power is not determinative of the issue of IJI. At paragraphs 65 and 67 of insight, this court held that while a court should first ask whether the constitutional issue can be resolved on some other basis before applying IJI to a new area, new areas of exclusive jurisdiction could, in theory, be identified in the future. As such, the recognition of a new core of a head of power, particularly with respect to section 92A1 of the constitution is consistent with the previous findings of this court. Finally, IJI will not immunize natural resources from all federal legislation. In its submissions, my friend, the AG of Canada, or the Attorney General of Canada, suggested that the application of the doctrine of IJI would effectively immunize natural resources from all federal legislation. Respectfully, we disagree. In National Battlefields Commission, which is found at tab eight, and pages 860 through 861 of EPAC's factum, this court held that even where IJI was applied to provincial laws impairing a federal core of power, the federal undertaking was not exempt from certain provincial legislation that did not impact the vital or essential aspects of the service or undertaking. As such, this court has recognized that the application of the doctrine of IJI only impacts laws impairing the recognized core of the head of power. Thank you. Those are my submissions and I welcome questions if any.
Thank you very much. Any reply Mr. Rupert?
who will stand in our submissions yesterday in our written fact.
Y Llywydd – gallwch ddweud unrhyw ddwy o bryd? Y Llywydd – roedd ychydig dweud am y prif ddwylo o'r gynlluniau POG y gallwch ddweud am y prif ddwylo o'r gynlluniau POG yn 7.1b.
You have paragraphs 136 to 138 in your factum, but you don't purport to be applying the National Concern Test set out in the – or elaborated upon in the greenhouse gas case. So I just wanted to know your position on how those provisions would meet the National Concern branch of the test.
Well, what I can say, Justice Jamal, is that we rely upon the decisions of the court in inter-provincial cooperatives and in the continental shelf, the Newfoundland continental shelf decision, which describe the scope of POG in respect of the powers that we're talking about today, and that's how we get into 7.1b.2 and 7.1b.3. So it's the decisions of the court and the way the court has interpreted the POG power that we say anchors those two subsections, 7.1b.2 and 7.1b.3.
Well, while we're on this subject, I'm looking at the World Wildlife Fund Canada, paragraph 21, where the suggestion is made that international cooperatives is best understood as the extra provincial effects of the specific project.
Well, it's not, we wouldn't read it that way, Justice Karygiannis. The court was fairly clear in saying, as I understand what the court said there, if there was an effect that goes between provinces, it would be the federal government that would have the jurisdiction, because as Justice Greco points out, neither jurisdiction, neither province would have the requisite jurisdiction to deal with the matter, and there would be a Lukana in the constitution, in that nobody would have the power. So it's this flowing between jurisdictions, which is, I understand what the court was talking about there.
Yes, and the suggestion is made that it will be those particular consequences that flow from a particular project that falls within that definition.
Right, and that falls back to what we said yesterday, Justice Karykosanis, is that if this is invoked in a particular set of circumstances and a party says, well, that's not the case at all, province A had complete jurisdiction over this, it did not flow into province B, then that's when the invocation of that particular subsection would not be appropriate. And now that I'm up and I've been asked a couple questions. You have five minutes now. Back in, no, it'll just take one minute. This is a bell that did this to me once before, so we must keep going.
I'll end today where I started yesterday, and that is we have to maintain the distinction between constitutional validity and administrative applicability. Today we heard a great many suggestions of what would happen in Project A, what would happen in this set of circumstances. And my answer to all of those are that is a administrative applicability issue. That does not take us to what the pith and substance of the legislation is. The pith and substance, as this Court has said, is let's look at what the purpose is, the clause is. Let's look at what the preamble says. Let's look at what the full title says. Look at the full structure of what the Act is doing. That defines the purpose, as I said to you yesterday. What happens in particular applications is dealt with in the administrative law side. And keeping those two separate is very important in our submission.
But we're also supposed to look at legal effects and practical effects. Yes. So there's a blurring between what you're calling administrative.
application and the legal and practical.
careful, Justice Karygiannis, with respect to how much we, how far we go with that, because as Justice Binney has warned, creative council are always able to come up with some sort of scenario to fit the particular way they want to read something. And let me end this way. If we accept that as a blanket proposition, there's almost no legislation passed by either a federal or provincial legislator that could not be found to be unconstitutional, because you can always find some circumstance in which the application of the legislation could be said to be unconstitutional. That can't drive the epithet and substance analysis as to whether its core matter is unconstitutional.
And that dealt with by the doctrine of incidental effects because almost in a complex and interrelated society any legislative scheme by either level of government is going to have some effect on a matter which is under the jurisdiction of the other. And so the incidental effect for the exercise of your authority on the other level of government's authority is accepted and that's part of the piston substance analysis.
Well, this may shock you, Justice Roe, but I do agree with you to some degree with that, in the sense that the incidental effects, we say the incidental effects of this legislation fall within that paradigm, that they're not so egregious that they turn from a federal matter into impinging a substantial matter, I won't say significant, substantial matter into political heads of power.
Could I ask you one more question Mr. Rupak? You mentioned inter-provincial cooperatives and Crowns-Ellebuck. But neither of those cases obviously are talking about greenhouse gases. And the material that Ontario's put in the condensed book show how this is being, the scheme is being used as effectively a method to regulate greenhouse gas emissions from projects. Well, I was, sorry. So my question is, doesn't that do an end run around the
Chief Justice's decision in the reference, because if you rely on these pre-earlier cases and say, yes, but this deals with rivers and interprovincial pollution broadly, then it's sort of an end-run around the national concern test and the statements that it wasn't greenhouse gas emissions at large, but pricing that was the specific finding.
I should be clear, we're not relying upon greenhouse gases as a basis for an anchoring interprovincial jurisdiction. Will that be raised someday? Possibly. That's not what we're saying today. We rely on the Newfoundland continental shelf case. Could greenhouse gases be a factor, and this gets back to my earlier point, could they be a factor that is taken into consideration in the administrative application of public interest? Yes. And I refer also to the material that we put in from Alberta in our condensed book, because they deal with that, and the public interest side as well. So that's where I would say the division would be.
Alright, thank you very much. So I'd like to thank counsel for their submissions. You won't be surprised that the court will take the case under advisement. The court will take the case under deliberation. Merci, bonne fin de journée.