A Supreme Court of Canada ruling about federal regulation of natural resource projects could have happened before Bill C-69 was introduced, but now that it has, another long legislative and legal journey is set to unfold.Bill C-69 was tabled in the House of Commons in February 2018 and passed third reading that June. The Senate introduced 188 amendments, but only half of them made it to the final version passed June 2019. The Alberta government referred the bill to the Court of Appeal that September, which later ruled C-69 was “a breathtaking pre-emption of provincial legislative authority.” The Supreme Court of Canada (SCC) found parts of the bill unconstitutional in a 5-2 decision on October 13.In past decades, questions regarding the patriation of the Constitution, same-sex marriage and Senate reform, were brought before the courts before Ottawa decided how to proceed. Tom Flanagan, political science professor emeritus at the University of Calgary, said the Trudeau government could have done the same. Hidden from the public is what advice it received before deciding not to.“All legislation is screened by the federal Department of Justice for constitutionality and I have no idea what kind of opinion that department rendered. It comes through the Minister of Justice to cabinet,” Flanagan explained.“It’s hard to answer a question about strategy unless you know what kind of advice they were getting from their own lawyers. The Department of Justice is kind of like a big law firm, and they've got a lot of smart people there. Sometimes they get overwritten by politicians, but they're capable of offering good opinions. I have no doubt of that.”Allan C. Hutchinson, a professor of constitutional law at York University, told Western Standard Ottawa probably thought their legislation had a chance.“I think they had a good faith belief it might well be upheld. I don't think this was an issue where they thought, ‘Let's pass unconstitutional legislation to see how far we can go,’” he said.“I don't want to say governments always act in good faith. But…I think it's easy to go back and say, ‘Well, it was unconstitutional. Therefore, they were acting in bad faith.’ I just don't think that's the case.”Hutchinson said Ottawa had reason for hope, given the favourable 2021 SCC decision on carbon pricing. Besides, on Bill C-69, the Alberta Court of Appeal had one dissenter out of five, and the Supreme Court of Canada had two dissenters out of seven.“Any government can say, ‘Hell, it went five - two, we obviously had a pretty reasonable case, because two of them thought we should win. It's not so much that the two were wrong. It was just that they were two instead of five,” he explained.“People have an unusual idea, not unreasonable, about what the Constitution is about. And it really isn't the fixed kind of process that people think it is. And the more people grasp that, the better it'll be.”Even so, Hutchinson said the recent ruling created a “mess” because the court affirmed the federal right to rule on environmental issues but without clearly delineating where that jurisdiction ended. He expects Alberta to challenge whatever legislation results from this, followed by “a few more decisions” to settle matters.“It's hard to understand constitutional arcs without taking into account some of the politics,” Hutchinson said.Scott Edward Bennett, a political science professor at Carleton University, told Western Standard the federal government served its own biases in Bill C-69 and he expects any sequel to be implemented with similar goals. He suggested the Impact Assessment Act in the bill favoured regulators at the expense of others.“For those on the left and the environmental left, it is important to note that apart from anything else, the IAA transferred more approval power to people who were far removed from the immediate impacts of projects to be assessed. In many instances, it involved duplication of existing provincial regulation. Is this really what the Green Left wants? It does not seem very authentic,” Bennett said.“On the other hand, there are probably many in the Green Left who would benefit from more elaborate consulting on impact assessment and from the creation of more central, regulatory jobs. It would be nice for them to keep in mind that there are many people who have to make a living outside the realm of government consulting and overreach.”Ex-Greenpeace activist and Minister of Environment and Climate Change Stephen Guilbeault will help craft legislation in response to the ruling. Flanagan believes the Trudeau government would be smarter to consult with the provinces before moving forward, especially Alberta and Quebec. However, he added with a chuckle Ottawa wasn’t asking for his advice.“If they want, the federal government, of course, has all the power. They can get some amendments done quickly,” he said.“I think they would be wise to consult, but there's no legal obligation.”Ted Morton, a former Alberta cabinet minister and political science professor, told Western Standard the provinces should come out swinging against federal encroachment.“Bill C-69 is a frontal assault on Section 92A of our Constitution. It is Premier Peter Lougheed's most important legacy to ensure that there would never again be another National Energy Program to destroy Albertans' jobs and lives. But the ‘Just Transition,' Trudeau carbon tax and C-69 is just this, NEP 2.0,” he said.“If we care about our future, Albertans must embrace this Supreme Court ruling, recruit provincial allies like Saskatchewan and Quebec, and play offence not defence."
