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The Impact Assessment Act

John Liston.

Over the past two decades, Alberta has faced a number of economic challenges, most recently the devastating impacts of the COVID pandemic and the collapse in oil prices. Now, more than ever, it is critical that Alberta has control over the key levers of its economy. That autonomy is necessary to make informed decisions that drive recovery through innovation, investment, and growth, and to fund the important public services we depend on every day. However, Alberta’s ability to achieve those objectives has recently been jeopardized again, not by external economic shocks or worldwide pandemics, but by federal legislation.

The Impact Assessment Act (IAA) prevents any designated project from proceeding if it may have environmental or other effects – whether those effects are positive or negative, marginal or significant – touching on areas the legislation deems to fall within federal jurisdiction. As currently drafted, the IAA enumerates everything from migratory birds, fish, and aquatic species, to Indigenous peoples, to environmental impacts on other provinces (such as greenhouse gas emissions) as falling within federal jurisdiction.

Where a project has such an effect, the IAA empowers the federal government to step in and conduct a far-reaching inquiry into the impacts to determine whether, in the sole view of the federal government, it is in the public interest. If the federal government’s review suggests it is not in the public interest, that project cannot move forward.

The end result is that if Alberta were to have a lithium mining project of critical importance to developing alternative energy, and Alberta may cause a very minor impact on one of the listed federal areas – for instance, if the project may increase the risk of migratory birds being struck by moving vehicles – that minor impact can be used as a justification for undertaking a comprehensive federal assessment of the entire project and shuttering the project permanently.

In our view, this is fundamentally inconsistent with our constitutional design and structure. Our constitutional division of powers expressly and deliberately divides jurisdiction over projects – called “works and undertakings” – between the federal and provincial levels of government. The federal government has primary legislative control over a range of important undertakings, most notably interprovincial or international transportation, and communication undertakings. However, the majority of “works and undertakings” are under the primary legislative control of the individual provinces – in fact, the Constitution defines them as being “local works and undertakings”.

The end result of the IAA, for most major projects within the province, will be significant regulatory overlap, duplication, and delay; governmental conflict; incessant litigation; and ultimately, economic paralysis. This is why Alberta Enterprise Group joined with another like-minded organization to intervene in the hearings before the Alberta Court of Appeal. We emphasized that the constitutional division of authority over works and undertakings must not be covertly undermined, and if nothing else, it precludes what amounts to a complete jurisdictional overlap over the review and ultimate approval of many major projects.

Respecting this division of powers will not make local works and undertakings immune from valid federal laws, or vice versa. However, it will allow the appropriate order of government to drive the environmental assessment bus in each case, with important contributions from the other, while minimizing unnecessary duplication, obstruction, and delay. That is the embodiment of cooperative federalism, and the way our constitution was intended to function. Ensuring that it does so is of crucial importance to Albertans and Alberta businesses, who depend on a welcoming economic and investment climate to drive innovation, develop our economy and resources, create jobs, and help fund the public services that we all rely on.