Jason Kenney and his allies in the United Conservative Party are noisily celebrating the Alberta Court of Appeal’s opinion yesterday that the federal government’s environmental assessment law is unconstitutional, and who can blame them?
The 4-1 opinion in the Alberta government’s reference case on the former Bill C-69, now the Impact Assessment Act, doesn’t actually change anything, and its chance of surviving intact at the Supreme Court of Canada, which the federal government vowed yesterday will be its next destination, is surely no better than 50/50, perhaps quite a bit worse.
So as a severely normal Canadian from any province, including Alberta, you might think Premier Kenney’s assessment that the judicial opinion is “an historic victory,” and the chorus of whoopies emanating from his government’s inner circle, are a just little more cheerful than the situation warrants.
But look at it from their perspective. What else do they have to celebrate?
The premier himself may be on the threshold of a historic defeat in the leadership referendum vote now being conducted by his party – a couple of credible estimates by veteran political observers put the percentage of votes his continued leadership is likely to attain in the low to mid 40s!
His UCP is bitterly divided over its response to COVID, the influence of its lunatic rightward fringe, and Mr. Kenney’s leadership itself. That’s not going to change if he loses his party’s confidence. There’s been so much talk of electoral shenanigans, past and present, that if he does win the referendum on his leadership no one’s going to believe he did so honestly.
Even some cabinet ministers are said to have made no effort to sell new memberships to Kenney supporters in their own ridings. Meanwhile, new memberships in places his rival Brian Jean is popular are said to be selling much better. The government seems to face a new scandal in the media almost daily.
And a new poll is rumoured to show the NDP Opposition increasing its lead over the UCP.
So, yeah, why not celebrate the appeal court’s ruling and party like it’s 2019? As they say: Eat, drink and be merry, for ya’ll know what happens tomorrow!
And the majority opinion does say, “This legislative scheme allows the federal government to essentially render worthless the natural resources of individual provinces by stopping their development,” and concludes that, if upheld, it would “permanently alter the division of powers and forever place provincial governments in an economic chokehold controlled by the federal government.”
So what the hell, Mr. Kenney couldn’t have explained his hyperbolic version of reality any better than that, and the court’s opinion might even send a few wavering votes his way – although it’ll only be a few, since all votes have to be returned to the party by today in order to be valid. The results of the vote are supposed to be made public a week from today, though why they’ll take that long to count is an interesting question.
When Alberta Environment Minister Jason Nixon says, “although this is technically an opinion and not a decision of the Court, we consider it definitive of determining the constitutionality of the IAA and thus binding in Alberta,” he is whistling past the graveyard.
Federal Environment Minister Stephen Guilbeault and Justice Minister David Lametti said in a statement that “it is important to note that the decision of the Alberta Court of Appeal is advisory in nature and that the Impact Assessment Act and regulations remain in force.”
As to how the two federal ministers expect the act to fare before the Supreme Court, they said Ottawa “worked extensively with legal experts and provincial and territorial governments to develop the Impact Assessment Act. We are confident the Impact Assessment Act is constitutional. …”
Well, someone is bound to say Messrs. Guilbeault and Lametti are whistling past the graveyard, too, so all of us armchair litigators will just have to wait to see what the Supremes do.
In the meantime, here are a few preliminary thoughts from a couple of real legal scholars with some expertise in this area, who were bold enough to take to Twitter about it last night.
“I have now worked through both opinions,” said University of Calgary emeritus professor in law Nigel Bankes, referring to both the majority opinion and the dissent by Madam Justice Sheila Greckol. “I think that Justice Greckol’s opinion is excellent and I expect it to carry the day in the SCC. I think that she shows that the majority has created a straw person of massive federal overreach which she then proceeds to demolish.”
“What will the SCC decide?” asked U of C law professor and legal commentator Martin Z. Olszynski. “Hard to say, but hard to imagine they’d endorse this in its entirety.”
The majority opinion, he said in a thread that starts here, is rife with “extra-judicial reasoning that certainly doesn’t add to the legal analysis and probably distracts from it.”
“It’s not for the courts to decide how much env’l harm gov’ts may tolerate,” he observed elsewhere in his comments. “That is a political decision for which gov’ts are held accountable. This opinion = judicial determination of how much harm the fed must tolerate, even when it’s squarely in their wheelhouse (eg fisheries).”
As for Mr. Nixon’s bluster, Prof. Olszynski observed, “Alas, it doesn’t matter what you think or consider – the IAA applies to private proponents. If they’re bullish on the ABCA majority being upheld, then by all means they can force a confrontation. If not, I reckon they won’t want to risk losing the next 1-2 yrs of assessment time.”
So stay calm everyone. Whatever you hope for, this isn’t a done deal.
And if you think you’ll be ill if you hear the phrase “the no-more pipelines law” one more time, I’m sorry to have to say you’re just going to have to be strong.
It may very well be whistling past the graveyard, given the situation Kenney and his regime is currently facing. It is quite possible he will no longer be premier in a week or so.
I’m not sure either why so long is needed to count the ballots, that should have already been mostly mailed in by now. Perhaps it will give Kenney a chance to get updates in the meantime and act accordingly. If he resigns before the results are announced, does it all become moot and the process instantly stop? After all, what would be the point if he resigns. What if he calls an election? Just wondering.
If so, I suppose this might be the final chance for Kenney to exit on his own terms. Although it is a bit late for a walk in the snow, Alberta weather at this time of year can still be a bit unpredictable.
So, yeah how about that court ruling. Will it last longer than the Kenney regime which could be in its final days?
I’m not buying this blatant propaganda and spin by the UCP. They are trying to distract Albertans from their disaster of a government. This is nothing more than false boasting. We can’t trust the UCP’s environmental record. The precursor to the UCP, the Alberta PCs, also had a bad environmental protection record, that began under premier Ralph Klein. He left Albertans with a very hefty tab of $260 billion to fix up the damages caused by the oil companies in Alberta. This is something that Peter Lougheed never allowed to happen. Also, the UCP have been playing games with Peter Lougheed’s 1976 Coal Policy. We are paying a lot of money for the UCP’s frivolous lawsuits, which are often defeated, and they end up making Albertans a laughing stock of Canada, and even the world, and also making Albertans poorer. This crock of a provincial government has got to go.
Supreme courts — the court of last resort — frequently overturn lower court rulings. The Supreme Court of Canada hears some 70-90 appeals each year.
1a) “Creditors over environment: Alberta Court of Appeal upholds Redwater Energy decision” (CBC, Apr 24, 2017)
https://www.cbc.ca/news/canada/calgary/redwater-energy-appeal-dismissed-alberta-bankruptcy-environment-creditors-1.4083474
1b) “Supreme Court rules energy companies must clean up old wells — even in bankruptcy” (CBC, Jan 31, 2019)
“Canada’s top court overturns Redwater Energy lower court decision”
https://www.cbc.ca/news/business/supreme-court-redwater-decision-orphan-wells-1.4998995
2a) ” Federal carbon pricing law unconstitutional, Alberta Court of Appeal rules” (CBC, Feb 24, 2020)
“Majority opinion called federal act ‘a constitutional Trojan horse'”
https://www.cbc.ca/news/canada/edmonton/federal-carbon-tax-unconstitutional-alberta-court-1.5473482
2b) “Supreme Court rules Ottawa’s carbon tax is constitutional” (CBC, Mar 25, 2021)
“In 6-3 decision, top court finds federal government can impose nationwide pricing standards”
https://www.cbc.ca/news/politics/supreme-court-federal-carbon-tax-constitutional-case-1.5962687
As they say, it ain’t over until it’s over.
This situation is both laughable absurd, and rather alarming. First, the absurdity:
The BC government has recently tried, and failed, to argue to the supreme court that they ought to have the final say in protecting their environment. The Supreme Court of Canada said, “nope, it’s the feds, love it or shove it.”
Now Alberta has spent a bunch of money, time and energy trying to argue that they ought to have the final say in NOT protecting their environment. Seems to me the Supreme Court cannot rule in Alberta’s favour while being consistent with their prior ruling. If they did rule in Alberta’s favour, it would be tough to square that circle. It would mean provinces can’t overrule the feds to protect their environment, but they can overrule the feds to ravage it.
Okay, that’s the absurd part. To get at the alarming part, I want to share a quote with you. “Professionals are predictable, but the world is full of amateurs.” Why is that relevant?
Judges should be professionals. For Alberta judges to rule that Alberta has the final say in “protecting” Alberta’s environment indicates they are either incompetent or ideologues. This ruling suggests that the Alberta Supreme Court is mostly packed with amateurs. That’s not good.
My impression was that this has nothing to do with no more pipelines and everything to do with no pipelines in northern b.c. That could put salmon and killer whales at risk, which makes good sense. My son and I have been going to Prince Rupert on fishing trips for several years . I have discussed the the Enbridge Northern Gateway Pipeline with residents there and they made it clear that they had no intention of supporting it. Over the years they have gone without natural gas for weeks on end when a landslide or a raging River, has taken out the pipeline , can you blame them? This pipeline would have crossed rivers and streams around a thousand times putting salmon habitats at risk. Oilmen I talked to thoughts that’s why Enbridge dropped it. So who is lying to the people and wasting taxpayers money on trying to destroy it, I think I know, don’t you?
I used to live in Prince Rupert. When the gas pipeline got knocked out in the middle of winter and there was no gas for heat for a couple of weeks, everyone in town grew a beard. All the men, anyway. DJC
Thanks David for confirming what I was told. A group of us go out there fishing usually the fist week in July and on one trip a slide took out the highway #37 to Stewart and it wasn’t reopened until late in October . It certainly created a problem for Stewart.
The same storm took out a good portion of the Yellowhead highway over a river and my son and I were just barely able to get through with our truck and boat.
If you enjoy crappy cold wet weather Prince Rupert is the place to be. One July it was so cold we tied to find hand warmers for in the boat, but no one had any.
Alan K. Spiller: Here is what these pretend conservatives and Reformers leave Albertans with.
https://www.nationalobserver.com/2022/05/11/news/edmonton-mp-confronts-oil-lobby-exec-over-sectors-253-million-outstanding
I live in Haida Gwaii. I suspect that pipeline would have required considerable violence to actually construct. Was a dumb idea in real time, remains one today. People championing that particular pipeline should be viewed as either climate change deniers or people recklessly eager to profit from our incipient extinction.
I really believe Northern Gateway has been a watershed for pipelines in Canada. Simply put, it was a bad idea. Running it through hundreds of kilometers of wilderness, then requiring tankers to navigate Douglas channel was just asking for trouble. I have never heard why Enbridge wanted that route; my assumption is that it was to save the cost of a longer pipeline to Prince Rupert. My understanding is that at some point Enbridge did make arrangements for a Prince Rupert terminal if the Kitimat terminal did not work out.
How did the government respond to this bad idea? Stephen Harper’s government was all for it. I think that was when people realized they could not rely on the government to protect the environment, and they became activists themselves. I would love to know how many people we see protesting pipelines originally became anti-pipeline as a result of Northern Gateway and the CPC support of it.
Consider the possibility that Northern Gateway was a ruse, the regulatory rejection of which would allow the HarperCons to look reasonably conciliatory while moving the route to Prince Rupert, the one preferred all along.
As you mention, the proposed Kitimat/Douglas Channel route couldn’t have been more fraught with risk if one tried, a route most likely to be rejected on just about every relevant ground. The environmental risks of the pipeline crossing several hundred water courses on its way over the mountains to Kitimat was obvious and, for anyone who’s familiar with Douglas Channel (I’ve worked up there a number of times), the proposal instantly rang alarm because of the tidal currents in this long, narrow fiord, multiplied by unpredictable, violent winds in the deep mountain valley, and again by the islands and atolls in the Channel and beyond (Enbridge’s propaganda was busted for displaying graphics which omitted that these real navigational hazards even existed—which, given the scrutiny the controversial proposal was guaranteed to attract, almost seemed intentionally destined to be discovered and cited as demerits by opponents). A worse route is hard to find.
In sharp contrast, Prince Rupert is by far the superior terminus: it’s already the terminus of a transcontinental rail right-of-way which would facilitate pipeline construction, the right-of-way, railway and bridges, already crossing hundreds of waterways, so and a pipeline laid right beside it would not significantly increase the existing environmental risk; Rupert has the second-largest deep water harbour in North America (next to New York), already substantially developed, and opens directly into deep, open ocean.
Harper knew he wouldn’t get away with ignoring Aboriginal rights but feigned ignorance by saying the constitutional obligation to consult meaningfully with First Nations without treaties (most of BC’s many FNs have not settled their sovereign claims which the 1997 Delgamuukw SCoC decision which confirmed had not been extinguished by confederation, overturning the BC Court of Appeal decision) was fulfilled simply by informing these FNs of the government’s intention. Indeed, Northern Gateway wasn’t eventually shit-canned expressly because of specific environmental concerns but, rather, because the HarperCons did not consult meaningfully with FNs as, I strongly suspect, Harper knew his government was legally required to do (FN land claims are much, much more complex than in simply environmental concern, so the pipeline matter would take years or decades, not months, to negotiate).
So why didn’t the ruse work? Simple: Harper ran out of time—that second minority having fatally delayed the schedule; his politically partisan persecution of the FN community of Attawapiskat meant to discredit all Aboriginal concerns as no-count, preparatory to pushing a pipeline through BC where few treaties have been settled— blew up in his face with the “Idle-No-More” movement; the first and last CPC majority was beset with scandals and lawsuits for electoral and campaign-funding cheating as was seeing many of its legislations struck down by the courts; the Loyal NDP Opposition surpassing it in popularity while the young, rookie Liberal leader was fast resurrecting his third-place party from its decade of self-inflicted disqualification. Harper, watching the prospect of incumbency wane, began to rush to get things done and rashly deployed a repugnant racists prop—the niqab face-covering some Muslim women wear—just before losing the race after one of the longest election periods in modern Canadian history.
Gaming the pipeline file is ongoing: the new Liberal government shit-canned Northern Gateway (still stuck in its Kitimat ruse) but bought Kinder Morgan’s Transmountain pipeline and proceeded to expand its capacity with the twinned TMX pipeline. Meanwhile, it also imposed a moratorium on supertanker traffic on BC’s North Coast, namely Prince Rupert, easily the best terminus for a diluted bitumen pipeline from Alberta. Did JT do this to preclude Rupert for the sake of TMX? Well, it’s a question, isn’t it!
The real loser in all this is the environment. This is a battle of anti-environment and pro-environment, with Kenney and the UCP on the anti-environment side.
So, yesterday, Murphy Brown Bergen stood in the House of Commons and trumpeted the decision of Alberta’s Appeals Court and demanded that PMJT rollback the so called “Anti-pipeline bill” and obey this decision from the “highest court”. Alberta’s Appeals Court is the highest court?
Yeah, it appears that dementia is strong in the CPC caucus. Now that you have Skippy Pollivere running around the country and sounding off about the “clear and present danger” represented by the World Economic Forum (WEF) I guess conspiracy nonsense will be the stuff that CPC policies are made of? Of course, Pollivere has been desperate to explain away why his name is on the WEF website and, for a time, was a regular at the Davos annual dog & pony show. I guess he can’t get enough of those $35 vending machine sandwiches that the MP for Oklahoma and Buffalo enthusiast Michelle Rempel was going on and on about.
As for the whole anti-pipe shtick, PMJT bought multi-billion dollar pipeline, so STFU already!
That’s Candice “stop spreading information” Bergen.
https://www.routineproceedings.com/2022/05/10/qp-stop-spreading-information/
Another negative take on the ACA majority decision comes from Professor Eric Adams at the U of A in this twitter thread:
https://twitter.com/ericadams99/status/1524131452773748736
The main theme of the thread is that some of the language in the majority decision is neither temperate nor judicious. For example, the decision refers to placing Alberta in a “chokehold” and taking “wrecking ball to the constitutional rights of Albertans”. Professor Adams points out that this kind of language is not helpful, especially during times of “inflamed political rhetoric” that is causing division, discord, cynicism, etc. Words matter.
I am not a lawyer, so I can’t judge the decision on its merits. That said, it does seem to be pretty thin in its reasoning. Combine this with the fact that some of the language seems designed to appeal to the existing prejudices of the UCP and other corporate friendly elements in Alberta is troubling. Such language might cause even more disrepute for the Alberta Court of Appeal.
How many ACA decisions have gone to the SCC only to be overturned in recent years? A fair number, I believe. I, therefore, think it is also fair to ask whether the ACA is politicized, to what degree, and what steps the current or next government will take to ensure that it is not politicized.
Given the partisan tendencies of the ACA, I’m surprised that the language used in the ruling didn’t stray into calling PMJT a “poopey-head” who can’t satisfy his wife. But this is the language of the discourse that one sees on Twitter posts every day.
Trial by Twitter. I can’t wait.
Maybe the Fed’s should celebrate by stopping to pay for orphan well clean up. It has long annoyed me that businesses can ignore the cleanup problems after a resource extraction (mining, oil/gas, forestry, etc) which is then ignored or left to the tax payer. Would those industries be profitable if clean up and remediation issues are included? Maybe upfront deposits are needed before any extraction for remediation, or perhaps higher corporate tax rates are needed. Yes I realize that some companies are trying to do the right thing but they all need to step up their game so the citizen/taxpayer is not on the hook. I am surprised that the Canadian Taxpayers Federation is not concerned about this. nudge nudge wink wink.
That Madam Justice Sheila Greckol’s dissenting opinion here was judged by Emeritus Professor Bankes as “excellent and expected to carry the day in the SCC,” is no surprise, for me. She won a case for our UNA local in a Lethbridge court years ago, in amazing style. She would be an excellent choice for a SCC Justice.
Albertan: Justice Greckol represented my union during the Calgary Herald strike 22 years ago. If CEP had listened to her advice, there would still be a union at the Herald. I had exactly the same thought as you when I saw her name in connection with this story. DJC
And it was just days ago (referring to the smackdown of Jonathan Denis for his witness-intimidation kerfuffle) that I said, “[I]t seems Alberta justices still understand that the courts must be seen as acting in fairness, without prejudice.” Now this obvious drivel from the ABCA. Excuse me while I pull my foot out of my mouth. The four justices who wrote the pseudo-legal polemic will need crowbars to extract their feet.
Especially with the alarmist language they used. Their decision reads like it was written by a bunch of partisan hacks.
…Oh wait.
Sad, it is that four legally trained members of the ACofA have collectively written a ‘reasoned’ opinion no better than those on social media whose authors suffer from Dunning-Kruger
Conservative leadership debate tonight. Everyone get your hip waders, the BS is gonna run deep!
As is the current habit nowadays, in order not to offend the easily offended, the following “warning” is offered:
WARNING: The following observation(s) may contain material and/or language that may be offensive to the overly sensitive, even as it may offer true insight into the current state of Alberta political affairs by way of comparison. So, if you are easily offended, read no further . . . . . . . . . . . . . . . .!!!!
“There’s been so much talk of electoral shenanigans, past and present, . . . .”
“Shenanigans” you say? [“Secret or dishonest activity or maneuvering. Silly or high-spirited behavior; mischief.”]
“Surprisingly enough, the history of “ratf–ing” as a political term of art for sleazy maneuvers goes back nearly a century.”
“Roger Stone and ‘Ratf—ing’: A Short History”
https://www.politico.com/magazine/story/2019/01/25/roger-stone-and-rating-a-short-history-224218/
When the proper history is finally told, it will be found out that, “The Kenney people, like the Nixon people, were hopelessly amateurish.” If that fact is not already widely realized.
And not just because as I am often told, “It is what it is.”
“Oh Yeah”
https://www.youtube.com/watch?v=6jJkdRaa04g
The reality is the fat lady has not yet sung.
This will go to the Supreme Court.
Sure, Jason Kenney will hang his hat on anything these days. This is for the benefit of the Jones. The movers and shakers know the score and realize that this is far from being a done deal.
UCP celebration of this lower court reference is wildly imaginative, but politics being K-Boy’s whole world, his proxy for human relationship, his obsession with surviving at any cost can at least be vaguely understood by those whom he has hitherto kept distant—that is, by his supporters, largely politicians whose careers depend on Kenney’s pleasure—such as it is these days. Yes, they have little else to celebrate —which helps the rest of us understand the K-team’s intense reaction, dubious rationalizations and nearly unhinged fever and whimsy.
Soon Kenney’s obsession might end at the hands of the lunatics in his very own creation who jeer at his wobbly political bicycle as it veers toward the party’s crudely corrupted cinderblock-and-fence-board jump. The Alberta Court of Appeal reference is K-Boy’s opportunity to affect his aspirational bad-ass, PeeWee Herman style: if he wipes out spectacularly, incredibly landing on his feet and righting his bent ride as if it never happened, he can aloofly say: “I meant to do that…”
…otherwise, what of Jason Kenney, post-politics? Gleefully get a tat? Make a movie (”Mr K Goes DC”) ?
I’m not a lawyer, but it seems to me this lower court decision has little chance of surviving the SCoC, the nature of which concerns the welfare and safety of the entire federation. After all, the lower court’s notion that the Impact Assessment Act allows the feds a “chokehold” on, and affects a “wrecking ball” against provincial development of their own, sovereign resources looks a lot different from the federal point of view: should irresponsible environmental degradation caused by provincial industry allow a chokehold (perhaps inadvertently reminding that GHG pollution from Alberta’s bitumen production really does choke citizens on smog and wildfire smoke resulting from climate warming) and take a wrecking ball to our federation (as some Albertans have threatened if they don’t get their way)?
The SCoC has bigger concerns than just one province, its overly-dominant industry, its rookie government and Jason Kenney’s political career, no almost thoroughly undeserved. It has foremost in mind all Canadians, their provinces and Territories, their Constitution and constitutional guarantees to Aboriginal people, nations and treaties (including those as yet settled), and our country’s international obligations, not least obligations to reduce GHGs for the world’s sake as well as our own.
But let’s let pesky details rest for now: they risk spoiling the chances of discovering entertaining, culturally iconic memes like: “Frankly, Scarlet, I don’t give a damn!” or “Tomorrow is another Day!”
Or: “I meant to do that…”
Disappointingly, NDP Opposition Leader — & former (& maybe future) Premier — Rachel Notley was also crowing about this decision & highly critical of the Impact Assessment Act. I feel she would have been on the right side of history had she taken a position in favour of protecting the environment for & on behalf of all Canadians. Canada has made climate action commitments on the global stage, because climate change is a global challenge; the Government of Canada has a duty to uphold those commitments — if necessary even over the narrow, parochial objections of a few provincial governments.
https://twitter.com/rachelnotley/status/1524150958267133955?s=21&t=omfH_BmivDoqM-6y24vQGQ