In a majority opinion, Chief Justice of the Supreme Court of Canada Richard Wagner wrote that that Ottawa’s Impact Assessment Act was largely unconstitutional. (Justin Tang/Canadian Press)
Canada’s top court has delivered a highly anticipated judgment, writing in a majority opinion that Ottawa’s Impact Assessment Act (IAA) is largely unconstitutional.
The IAA, previously known as Bill C-69, allows federal regulators to consider the potential environmental and social impacts of various resource and infrastructure projects. It was enacted in 2019.
The IAA has long been controversial among conservative politicians in Alberta, including former premier Jason Kenney, who frequently referred to it as the “no more pipelines act.”
The ruling was part of a “reference case,” which involves the provincial and federal governments asking courts for advisory opinions.
It doesn’t mean the law is now off the books — a ruling such as this from the Supreme Court of Canada is not necessarily binding, but is traditionally treated as being binding by governments, noted David Wright, an associate professor in the Faculty of Law at the University of Calgary.
“I think what we can expect is the federal government is going to get to work very quickly to put together a suite of amendments to bring the act into conformity with the law,” Wright said.
Details of the decision
Writing for the majority in a 5-2 decision, Chief Justice of the Supreme Court of Canada Richard Wagner said the process set forth in Sections 81 to 91 of the IAA were constitutional and could be separated out.
Those sections involve projects carried out or financed by federal authorities on federal lands, or outside Canada, and therefore fall under federal jurisdiction. Those provisions were not challenged as unconstitutional.
However, Wagner wrote that the balance of the scheme, involving “designated projects,” was unconstitutional.
Under the IAA, designated projects are those projects that are set out in the regulations or are subject to a ministerial order.
“In my view, Parliament has plainly overstepped its constitutional competence in enacting this designated projects scheme,” Wagner wrote.
Dissenting Justices Andromache Karakatsanis and Mahmud Jamal wrote that they believed the Impact Assessment Act was constitutional in its entirety. (Adrian Wyld/The Canadian Press)
Wagner wrote that environmental protection remains one of today’s most pressing challenges, and Parliament has the power to enact a scheme of environmental assessment to meet this challenge.
“But Parliament also has the duty to act within the enduring division of powers framework laid out in the Constitution,” he wrote.
Dissenting Justices Andromache Karakatsanis and Mahmud Jamal wrote that they believed the act was constitutional in its entirety.
“Environmental protection requires action by all levels of government because each — whether by action or inaction — can affect the environment,” the dissenting opinion reads.
“This shared responsibility is ‘neither unusual nor unworkable’ in a federal state such as Canada. Rather, it reflects this Court’s flexible approach to federalism, which recognizes that overlapping powers are unavoidable and intergovernmental cooperation is essential.”
Alberta government had previously challenged act
Alberta previously filed a constitutional challenge with the Alberta Court of Appeal, and was supported by the governments of Saskatchewan and Ontario, three First Nations and the Indian Resource Council.
Various environmental and legal groups, as well as other First Nations, supported Ottawa. In a 4-1 decision, the court called the law an “existential threat” when it came to Canada’s Constitution.
The federal government appealed that non-binding opinion, and the Supreme Court held hearings on the act in March. Today’s decision was keenly awaited by legal experts, who recognized its importance in providing clarity to an area of law that has long been under debate.
Jason Kenney opposed Bill C-69 when he was Alberta’s premier. In this photo from 2019, Kenney is joined by Sonya Savage, the province’s energy minister at the time, in addressing the bill at the Senate of Canada Building on Parliament Hill. (Justin Tang/Canadian Press)
Wright, the associate professor in the Faculty of Law at the University of Calgary, said it wasn’t the outcome most of those who follow this area of law expected.
“This really does set the the legal landscape for federal impact assessment for decades to come,” said Wright, who was also an intervener on the case. “What we now know is that there are significant constraints on what the federal government may or may not do with respect to legislating in relation to environmental assessment.”
Though the decision of the majority was that the act was an instance of federal overreach, it did affirm that the federal government has the power to enact environmental assessment legislation, Wright noted.
“But in this case, the federal government went too far in exercising that power, or in trying to exercise the power that they thought they had,” Wright said.
Smith and Kenney celebrate decision
During a press conference held Friday, Alberta Premier Danielle Smith said the decision marked a substantial win “for the protection of provincial rights in our province.”
“Today’s decision only strengthens our legal position. We work to protect Albertans, and all Canadians, from federal intrusion into our provincial jurisdiction,” Smith said.
In his decision, Wagner wrote that “the fact that a project involves activities primarily regulated by the provincial legislatures does not create an enclave of exclusivity.”
When asked what that would mean for the province, Smith said her government was working collaboratively.
“I guess we can keep on battling this out in the Supreme Court to find out exactly where the line is, but I’m asking for the [federal government] to accept that there is exclusive provincial jurisdiction under the Constitution … and to work with us on those areas of shared priority,” Smith said.
Smith also thanked former premier Kenney as part of her remarks.
“[He] tirelessly fought back against federal overreach during his term as premier,” Smith said.
Smith ‘extremely pleased’ on Supreme Court ruling
Alberta Premier Danielle Smith reacts to news that the federal Impact Assessment Act, previously known as Bill C-69, is ruled unconstitutional by Canada’s top court.
In an interview, Kenney said he was “thrilled” with the decision, calling it a “historic win” for Alberta. He said he wasn’t surprised to learn of the decision and pointed to the Alberta Court of Appeal case.
“It was a 4-1 decision, with a very powerful majority by the Chief Judge, saying that the Trudeau Impact Assessment Act was a wrecking ball to the Constitution. So they used the strongest language I’ve ever seen,” Kenney said.
“I really think that set the tone, the parameters and the stakes for the Supreme Court of Canada. I also worked really hard at getting eight of the other provinces on-side.”
‘A historic day:’ Jason Kenney reacts to Impact Assessment Act decision
The Impact Assessment Act has long been controversial among conservative politicians in Alberta, including former premier Jason Kenney. In an interview with CBC, Kenney says the Supreme Court ruling is a reminder that provinces do have important powers.
When asked about his view of Ottawa’s suggestion of adding amendments to the act, Kenney said that Ottawa was “maybe talking about some cosmetic face-saving.”
“It would be nice to have some actual darn humility here … it’s over, it’s done, stick a fork in it, and come back to the drawing board with an approach that collaborates with the provinces,” he said.
Reaction from across the country
Reaction from across the country came swiftly on Friday, including from Ontario Premier Doug Ford, who said his province welcomed the decision.
“The federal impact assessment process needlessly duplicated Ontario’s rigorous and world-leading environmental assessment requirements,” Ford is quoted as saying in a statement.
“At a time when it’s never been more important to build critical infrastructure, including highways, transit, and critical mineral projects, we now have the certainty we need to get shovels in the ground.”
Speaking in Vancouver, Conservative Leader Pierre Poilievre called the decision “good news.”
“A Poilievre government will repeal this law entirely and replace it with one that consults First Nations, protects our pristine environment, but gets jobs approved so that we can bring home beautiful, powerful paycheques to this country,” he said.
The Canadian Association of Petroleum Producers (CAPP), an intervener in the process, also said it was pleased with the decision.
“In the spirit of the court’s call for co-operation, CAPP looks forward to collaborating with both the federal and provincial governments to ensure that projects in the national interest — those reinforcing energy security, providing lower emissions energy, and maintaining affordability to Canadians — will proceed in a timely manner,” wrote Lisa Baiton, CAPP president and CEO, in a statement.
Joshua Ginsberg with Ecojustice, an environmental law charity, said it was disappointing to hear that an “important environmental law had been weakened” due to constitutional problems. Ecojustice was also an intervener in the process.
“In the end, I’m positive and hopeful that we’re going to come out of this with a clearer and effective environmental assessment process,” Ginsberg said.
Guilbeault says Ottawa remains committed
Federal Environment Minister Steven Guilbeault and Energy and Natural Resources Minister Jonathan Wilkinson held a joint virtual media availability on Friday morning to respond to the ruling.
During that event, Guilbeault said Ottawa respected the role of the Supreme Court and would follow the court’s guidance, and work to improve the legislation through Parliament.
Minister of Environment and Climate Change Steven Guilbeault said the government’s immediate priority would be to provide guidance to stakeholders and Indigenous partners after the Supreme Court of Canada’s decision. (Adrian Wyld/The Canadian Press)
“We accept the court’s opinion. It provides new guidance on the Impact Assessment Act, while explicitly affirming the right of the government of Canada to put in place impact assessment legislation and collaborate with provinces on environmental protection,” he said.
“We developed the Impact Assessment Act to create a better set of rules that respect the environment, Indigenous rights and ensure projects get assessed in a timely way. We remain committed to these principles.”
There are currently 23 projects in the federal impact assessment process under the IAA, according to the Impact Assessment Agency of Canada. Eight final decisions have been issued by the minister or the agency allowing those projects to move forward.
VICTORIA – The British Columbia government says it is taking steps to ensure tree fruit growers are compensated for past harvests after the closure of a co-operative that had served farmers for almost 90 years.
It says the Investment Agriculture Foundation of BC is “redirecting” about $4 million in provincial funding that will be used to ensure co-op members receive money they are owed.
The province says the foundation will pay growers in the coming weeks and then recoup the funds at the end of the court process involving the BC Tree Fruits Cooperative that filed for creditor protection last month.
In July, the co-op, which processed, stored, packaged and sold fruit for 230 member farms, announced it was shutting down after 88 years of operation.
It says it has more than $58 million in liabilities.
The agriculture ministry says it is has also provided $100,000 to the BC Fruit Growers Association that will go toward food-safety certification that was previously done by the co-op.
This report by The Canadian Press was first published Sept. 12, 2024.
VANCOUVER – Jesse Marsch issued Canada’s men’s soccer squad a challenge — get physical.
The edict came after the Canadians surprised many at this summer’s Copa America tournament, making it through to the semifinals. As his players departed for their professional clubs, the head coach wanted them thinking about continued growth.
“I challenged them to be more physically present in the matches that they played in,” Marsch said. “I’ve tried to encourage all the players to sprint more, to win more duels, to win more balls, to be more dynamic in matches.”
When Canada reconvened for a pair of friendlies last week, the coach saw some players had already heeded his call, including Vancouver Whitecaps product Ali Ahmed.
The 23-year-old midfielder started in both Canada’s 2-1 victory over the United States on Saturday and Tuesday’s 0-0 draw against Mexico.
“I’m really happy for him,” Marsch said. “I think he’s still young and still has a lot of room and potential to continue to grow.”
Playing under Marsch — who took over as head coach in May — has been a boon for the young athlete, currently in his second full season with Major League Soccer’s Whitecaps.
“Jesse has a very clear way of playing,” Ahmed said. “And I think the way we’ve been training and the way we’ve been growing as a group, it’s been helpful for me.”
The reward of getting minutes for a national team can spur a player’s growth, including Ahmed, said Whitecaps head coach Vanni Sartini.
“Of course that fuels him inside to say ‘Hey, I want to be a better player. I want to get to that stage,'” said Sartini.
Vancouver had six players — including Ahmed — away on international duty during its 0-0 draw against Dallas FC on Saturday. The absences are a good problem to have, Sartini said.
“Because we have players that are close to the national team, we have a lot of players that development is faster, better, bigger than it would have been if they hadn’t been called,” he said.
Born in Toronto, Ahmed came up through the Whitecaps’ academy system and played for Vancouver’s MLS Next Pro side before cementing his spot on the first team in 2023. He put up two goals and two assists across 22 regular-season games, and added another goal and another helper in 19 appearances this year.
Taking the next step will require the five-foot-11, 154-pound Ahmed to push himself physically, Marsch said.
“Tactically, he’s technically gifted,” the coach said. “I’ve told him he’s got to get in the gym more.
“There’s a lot of these little things where too many guys, they still look like kids and we need to help them look like men and play like men. And that’s what the high standards of the game are about.”
Marsch has quickly adjusted to recalibrating standards in his short time with Team Canada. Since taking over the squad in May, the coach said he’s learned the players are smarter and more capable than he originally thought, which forces the coach to constantly recalibrate his standards.
“That’s my job right now, to keep raising the level of the demands,” he said.
The way 40th-ranked Canada is viewed on the international stage is evolving, too.
“I think we’re changing the perception on the way we’re playing now,” he said. “I think beating the U.S. — it would have been nice to beat Mexico as well — the way we did, the way that we performed at Copa, I think teams are starting to look at us differently.
“Right now, I think we’re focused on ourselves. We’re definitely trying to be the best in CONCACAF and we have higher goals as well.”
This report by The Canadian Press was first published Sept. 12, 2024.
An investigator gave the World Anti-Doping Agency a pass on its handling of the inflammatory case involving Chinese swimmers, but not without hammering away at the “curious” nature of WADA’s “silence” after examining Chinese actions that did not follow rules designed to safeguard global sports.
WADA on Thursday released the full decision from Eric Cottier, the Swiss investigator it appointed to analyze its handling of the case involving the 23 Chinese swimmers who remained eligible despite testing positive for performance enhancers in 2021.
In echoing wording from an interim report issued earlier this summer, Cottier said it was “reasonable” that WADA chose not to appeal the Chinese anti-doping agency’s explanation that the positives came from contamination.
“Taking into consideration the particularities of the case, (WADA) appears … to have acted in accordance with the rules it has itself laid out for anti-doping organizations,” Cottier wrote.
But peppered throughout his granular, 56-page analysis of the case was evidence and reminders of how WADA disregarded some of China’s violations of anti-doping protocols. Cottier concluded this happened more for the sake of expediency than to show favoritism toward the Chinese.
“In retrospect at least, the Agency’s silence is curious, in the face of a procedure that does not respect the fundamental rules, and its lack of reaction is surprising,” Cottier wrote of WADA’s lack of fealty to the world anti-doping code.
Travis Tygart, the CEO of the U.S. Anti-Doping Agency and one of WADA’s fiercest critics, latched onto this dynamic, saying Cottier’s information “clearly shows that China did not follow the rules, and that WADA management did nothing about it.”
One of the chief complaints over the handling of this case was that neither WADA nor the Chinese gave any public notice upon learning of the positive tests for the banned heart medication Temozolomide, known as TMZ.
The athletes also were largely kept in the dark and the burden to prove their innocence was taken up by Chinese authorities, not the athletes themselves, which runs counter to what the rulebook demands.
Despite the criticisms, WADA generally welcomed the report.
“Above all, (Cottier) reiterated that WADA showed no bias towards China and that its decision not to appeal the cases was reasonable based on the evidence,” WADA director general Olivier Niggli said. “There are however certainly lessons to be learned by WADA and others from this situation.”
Tygart said “this report validates our concerns and only raises new questions that must be answered.”
Cottier expanded on doubts WADA’s own chief scientist, Olivier Rabin, had expressed over the Chinese contamination theory — snippets of which were introduced in the interim report. Rabin was wary of the idea that “a few micrograms” of TMZ found in the kitchen at the hotel where the swimmers stayed could be enough to cause the group contamination.
“Since he was not in a position to exclude the scenario of contamination with solid evidence, he saw no other solution than to accept it, even if he continued to have doubts about the reality of contamination as described by the Chinese authorities,” Cottier wrote.
Though recommendations for changes had been expected in the report, Cottier made none, instead referring to several comments he’d made earlier in the report.
Key among them were his misgivings that a case this big was largely handled in private — a breach of custom, if not the rules themselves — both while China was investigating and after the file had been forwarded to WADA. Not until the New York Times and German broadcaster ARD reported on the positives were any details revealed.
“At the very least, the extraordinary nature of the case (23 swimmers, including top-class athletes, 28 positive tests out of 60 for a banned substance of therapeutic origin, etc.), could have led to coordinated and concerted reflection within the Agency, culminating in a formal and clearly expressed decision to take no action,” the report said.
WADA’s executive committee established a working group to address two more of Cottier’s criticisms — the first involving what he said was essentially WADA’s sloppy recordkeeping and lack of formal protocol, especially in cases this complex; and the second a need to better flesh out rules for complex cases involving group contamination.
