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An Intervenors Perspective: Attorney General of Canada v Attorney General of Alberta

This week, the Supreme Court of Canada (SCC) heard arguments in the highly anticipated Attorney General of Canada v Attorney General of Alberta. The case focuses on federal environmental law, the 2019 Impact Assessment Act, and whether Ottawa has exceeded its jurisdiction. The law's purpose is to regulate natural resource projects that have effects on federal jurisdictions, including but not limited to, the impact on Indigenous people and their lands. The federal government is asking the SCC to overrule an Alberta Court of Appeal decision that declared the Impact Assessment Act unconstitutional.

Image provided by the Supreme Court of Canada

The Impact Assessment Act’s purpose, as written in the Attorney General of Canada's legal arguments, is to “safeguard against adverse environmental effects in relation to matters of federal jurisdiction.” The case is highly anticipated as Alberta says that it tramples on provincial jurisdiction and could potentially block new energy projects. The importance of this case is reflected by the near record-breaking twenty-nine intervenors, including multiple First Nations, industry organizations, environmental groups and seven provinces.

The Pasqua First Nation and File Hills Qu’Appelle Tribal Council are among those intervenors. They will be arguing in favour of the federal legislation, claiming the provincial government's inability to protect the rights and interests of First Nations during the environmental assessment of intra-provincial projects. As discussed last week, the environmental impacts of economic development can have far-reaching effects impacting First Nations rights, including but not limited to hunting and fishing.

Pasqua First Nation Chief Matthew T. Peigan says that they support the Impact Assessment Act as it protects Indigenous people's rights. He highlights that despite Saskatchewan reports that First Nations have a seat at the table during project assessments, they are not involved. He points to the recent Lake Diefenbaker Irrigation. Had the federal Impact Assessment been in place at the time, it would have been classified as an intra-provincial project in which a federal Impact Assessment would have been triggered and required an Indigenous Perspective. Instead, he points out that the Federation of Sovereign Indigenous Nations has said there was no meaningful engagement with Indigenous people approving the project. The Lake Diefenbaker Irrigation project has been noted as impacting “First Nations health, culture, food security, and way of life.” The project has the potential to have widespread and devastating impacts on water availability, “ecosystem health and wildlife.” As an intervenor, they will have five minutes to make their oral submission to the SCC and file a short factum on their position.

As a side note, this case is being heard with two seats empty on the bench. With Justice Russell Brown caught up in disciplinary actions, Chief Justice Richard Wagner chose to hear the case with seven of the eight remaining Justices rather than risk being stuck with a tie vote. Justice O’Bonsawin was asked to sit out. She is, among the many other traits that make her a fantastic voice on the bench, Indigenous. While there are many reasons why she may have been asked to sit out, including that she is the most junior Judge on the SCC, ensuring Alberta was represented, or she may have simply offered to sit out. Regardless, given the important consequences on Indigenous people, it is disappointing that Justice O’Bonsawin will not be given the opportunity to provide her perspective on such an important issue. Her voice will be missed.

Until next time,

Team Reconcili-ACTION YEG

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