Canada’s minister of energy and natural resources Jonathan Wilkinson is pledging to change the Impact Assessment Act after the Supreme Court of Canada declared most of the law to be unconstitutional, while Alberta’s business community celebrated the ruling as a win for the energy industry.

“We of course accept what the court has said and we will go back and make amendments to the act and bring it into full compliance with what the court had directed us to do,” Minister Jonathan Wilkinson told BNN Bloomberg in a television interview.

The law, formerly known in Parliament as Bill C-69, was given royal assent in 2019 and laid out federal oversight powers when it comes to the environmental impact of energy and infrastructure projects.

Five of seven Supreme Court judges ruled against most of the Impact Assessment Act on Friday, arguing the federal government does not have the jurisdiction to assess big projects on provincial land.

“What the court said was that the federal government doesn’t have the right to assume it can veto any project,” Andrew Leach, associate professor and the University of Alberta’s business school, told BNN Bloomberg in a television interview. “It can’t say: ‘You need our approval by default,’ which is what this legislation effectively did.”

The only portion of the law that was not affected by the judgment involves projects on federal land, which include federal funding or happen on international territory.

Indigenous issues, fisheries and greenhouse gases would fall under federal jurisdiction, Wilkinson added.

“The court did say the federal government has a legitimate role with respect to areas of federal jurisdiction and those areas of jurisdiction from an environmental perspective are very important,” he said.

Leach said most projects will still need federal approval even without the act.

“It won’t affect projects that have large environmental impacts, like mines, etc. that are going to affect fish-bearing waters,” he said. “What it probably will affect are things like smaller power plants.”

Wilkinson said in his three years as environment minister from 2019 to 2021, his government focused on using the act on matters of federal jurisdiction, even before this decision.

“What the court has told us to do in terms of tweaks to the act is not inconsistent with the way that we’ve actually looked to administer the act all along,” he said.

“I don’t see today’s ruling as a fundamental change, but we’re certainly going to bring the act into compliance.”

Ecojustice lawyer Joshua Ginsberg called the decision “disappointing,” but stressed the law is not dead, just needs some tweaks.

“It's never good news to hear that we're losing an environmental protection tool, especially one so central as (environmental assessment), but the news is not as bad as it seems,” he told BNNBloomberg.ca in a phone interview. 

“In fact, the Supreme Court confirmed many essential elements of the federal role in environmental assessment.”

Ecojustice was an official intervenors in the case.  

BUSINESSES ‘THRILLED’

News of the decision was well received by business leaders in Alberta, which is home to many natural resource projects affected by the law. 

“At the top level, we are thrilled with this decision and what it means for Canadian workers, their families, and, frankly, everyone who stands to benefit from Canada's responsibly produced natural resources,” Mike Martens, president of the Independent Contractors and Businesses Association (ICBA) Alberta, told BNNBloomberg.ca in a phone interview.

Martens said Albertans had felt a sense of sadness and inevitability about the law, but the court judgment came as a surprise and relief for the province.

“Nobody expected this decision,” he said. “I think almost everybody expected it to go the other way. I think there's going to be a lot of joy, a lot of enthusiasm, a lot of optimism, that perhaps we can now signal that we're open for business.”

Alberta Premier Danielle Smith called the act “the don’t build anything, anywhere act” and an “existential threat to Alberta’s economy.”

“If you believe in fairness, common sense and the sanctity of the Canadian constitution, today is a great day,” she told reporters Friday. “We are extremely pleased with the Supreme Court of Canada’s decision confirming the unconstitutionality of the federal government’s destructive Impact Assessment Act.”

Leach said Smith is right to take a bit of a victory lap following the ruling, but that the act is far from dead as she might suggest.

“(The ruling) basically says that her view of (the) provincial right to develop is incorrect, that provincial governments have the legislative authority in this area, but this doesn’t immunize provincial projects – oil sands projects, even pipelines within the province – from valid federal legislation,” he said.

Scott Crockatt, vice president of communications and external relations at the Business Council of Alberta, agreed with Martens that the law will help operations in Alberta and abroad.

“Our council sees this as a positive outcome, in particular, because this will add some greater predictability and certainty to getting major projects built in Canada,” he told BNN Bloomberg in a television interview.

“Our view is that it takes far too long to get projects built in Canada and I think there’s a broad cross-country and cross-political consensus around that.”

In a statement, Franco Terrazzano, federal director of the Canadian Taxpayers Federation, called the Supreme Court decision a “huge win” and a “great day.” 

“This means the feds can’t use this law to stop premiers like Scott Moe or Danielle Smith or Francois Legault from developing resources to create jobs for people in their provinces,” he wrote.

All three organizations served as official intervenors in the case.

In a statement, the Canadian Mining Association said it will “carefully analyze” the decision and how it impacts its industry, as 20 mining projects already undergoing federal assessment and already undergo several federal requirements before approval.

“Legislative change introduces regulatory uncertainty,” the association said. “The transition to another legislative framework will have to be well-planned to mitigate the potential impact of uncertainty on Canada's investment climate.”

With files from The Canadian Press