Author: Andrew Leach Page 1 of 2

B.Sc.(Env) (Guelph), M.A., Economics (Guelph), LL.M. (Alberta, in progress), Ph.D., Economics (Queen's University). Associate Professor, School of Business, University of Alberta. Please click here for more information.

The Word “Exclusive” Does Not Confer a Constitutional Monopoly, Nor a Right to Develop Provincial Resource Projects

By Andrew Leach

On November 1, 2023

In Constitutional, Environmental, Supreme Court of Canada

By: Nigel Bankes and Andrew Leach

Decision Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: The Word “Exclusive” Does Not Confer a Constitutional Monopoly, Nor a Right to Develop Provincial Resource Projects

The majority opinion of the Supreme Court of Canada in the Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference) concludes that the federal government has arrogated to itself decision-making powers that properly belong to provincial governments; powers, that is, with respect to resource projects and other works and undertakings located entirely within a province (for short, “provincial resource projects”). (For an overview of the IAA Reference see Olszynski et al, “Wait, What!? What the Supreme Court Actually Said in the IAA Reference”.) Given that conclusion, it is not surprising that Premier Danielle Smith, as well as former premier Jason Kenney, who initiated the Reference, have celebrated the decision. But in doing so they have both significantly overstated the majority’s conclusions by suggesting that the majority endorsed a strong theory of exclusive provincial jurisdiction over provincial resource projects. Premier Smith, echoing language in the Alberta Court of Appeal majority opinion in the IAA Reference (which we commented on here), would extend this interpretation further to a right of development and to a form of interjurisdictional immunity for projects falling outside the exceptions in section 92(10) of the Constitution Act, 1867. We provide concrete examples of Premier Smith’s use of the word “exclusive” (or its synonyms) and references to a “right to develop” from the Premier’s press conference on the IAA Reference decision and an interview prior to the decision in Appendix A to this post, and a link to the views of the Hon. Jason Kenney in Appendix B.

Playing Games with the Constitution: The Saskatchewan First Act

By Andrew Leach

On November 9, 2022

In Constitutional

By: Nigel Bankes, Andrew Leach, and Martin Olszynski

Matter commented on: Bill 88: An Act to Assert Saskatchewan’s Exclusive Legislative Jurisdiction and to Confirm the Autonomy of Saskatchewan

PDF Version: Playing Games with the Constitution: The Saskatchewan First Act

On November 1, 2022, Bronwyn Eyre, as Minister of Energy and Resources and Minister of Justice and Attorney General, introduced Bill 88, The Saskatchewan First Act, for First Reading in Saskatchewan’s Legislative Assembly. Bill 88 is comprised of a lengthy preamble and three separate parts. Part 1 is entitled “Preliminary Matters and Constitutional Assertion”. Part 2 proposes amendments to the Constitution of Saskatchewan and Part 3 establishes an Economic Impact Assessment Tribunal.

The Rhetoric of Property and Immunity in the Majority Opinion in the Impact Assessment Reference

By Andrew Leach

On June 8, 2022

In Constitutional, Energy, Natural Resources, Property

By: Nigel Bankes & Andrew Leach

Opinion Commented On: Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII).

PDF Version: The Rhetoric of Property and Immunity in the Majority Opinion in the Impact Assessment Reference

The Alberta Court of Appeal recently released its opinion in Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII). A majority of the Court found the Impact Assessment Act, SC 2019, c. 28, s 1 [IAA] to be unconstitutional. Our colleague Martin Olszynski has already summarized the majority’s approach and some of the doctrinal difficulties therein.

In this post, we consider in more detail the majority’s lengthy discussion of the historical evolution of the resource rights of the prairie provinces from the creation of Alberta and Saskatchewan as provinces in 1905, through to the Natural Resources Transfer Agreements (NRTAs) of 1930, culminating with the adoption of s 92A (the Resources Amendment) in 1982.

The Curious Demise of Alberta’s Turn Off the Taps Legislation

By Andrew Leach

On May 18, 2021

In Constitutional, Energy, Federal Court

By: Nigel Bankes, Andrew Leach and Martin Olszynski

PDF Version: The Curious Demise of Alberta’s Turn Off the Taps Legislation

Matters Commented On: Alberta (Attorney General) v British Columbia (Attorney General), 2021 FCA 84 (CanLII) reversing British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 (CanLII), and Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5

The Turn Off the Taps legislation ((or, more properly, Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5) (PCEPA)) was passed under the Notley government in 2018. There have always been serious doubts as to the constitutional validity of the legislation (for discussion of the principal objections to the legislation, see ABlawg here) and it is hardly surprising that the Attorney General of British Columbia (AGBC) commenced actions first in the Alberta Court of Queen’s Bench and later in the Federal Court seeking to test the validity of the Act. As described by a majority of the Federal Court of Appeal in Alberta (Attorney General) v British Columbia (Attorney General), 2021 FCA 84 (CanLII) [Turn off the Taps IV], the AGBC had two main arguments. The first was that PCEPA is inconsistent with s 121 of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3; the second was that the PCEPA is a law in relation to interprovincial trade that falls outside the protection offered by s 92A(2) of the Constitution Act, 1867, the so-called ‘resource amendment’ to the Constitution. In particular, the AGBC noted that s 92A only protects laws pertaining to “primary production” as defined in the Sixth Schedule, and yet the PCEPA purported to apply to refined fuels which fell outside that definition. The Sixth Schedule provides as follows:

Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part III (Commentary)

By Andrew Leach

On April 30, 2021

In Climate Change, Environmental, Supreme Court of Canada

By: Nigel Bankes, Andrew Leach & Martin Olszynski

PDF Version: Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part III (Commentary)

Case Commented On: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII)

This is the third in a series of posts regarding the Supreme Court of Canada’s much-anticipated reference opinion regarding the constitutionality of the federal government’s greenhouse gas (GHG) pricing regime: Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) (GGPPA Reference) (Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA)). The first post summarized the legislation and the majority opinion written by Chief Justice Richard Wagner. The second post summarized the dissenting opinions of Justices Suzanne Côté, Russell Brown and Malcolm Rowe. In this post, we provide commentary on four aspects of the Reference: the breadth of the matter and the characterization of the GGPPA, the constitutional implications of minimum national standards as defined in this case, the role of provincial inability and extraprovincial effects, and finally the role of domestic courts in adjudicating a global problem like climate change