Kenney warns of constitutional challenge if environmental assessment overhaul is passed as written

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Kenney warns of constitutional challenge if environmental assessment overhaul is passed as written

by - 3 min read

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Alberta Premier Jason Kenney is warning the Senate against passing the federal Liberal government’s environmental assessment bill in its current form or risk inflaming a burgeoning national unity “crisis” in his province.

In an appearance before the upper house’s energy committee Thursday, Kenney said Ottawa’s attempt to rewrite existing assessment legislation, do away with the National Energy Board and bolster Indigenous participation in the approvals process — among many other changes to the natural resources regime — creates uncertainty for an industry that is facing constrained pipeline capacity and cratering commodity prices.

“There is a growing crisis of national unity in Alberta which would be exacerbated by the adoption of this bill and other policies like it,” Kenney said. “If this bill proceeds. it will be a message to the people of Alberta that their federal government doesn’t care about a devastating period of economic adversity in our province.”

Kenney said he is prepared to launch a constitutional legal challenge against the legislation if it is passed by the Senate as written, saying Ottawa is unfairly intruding on an area of provincial jurisdiction.

He said former Alberta premier Peter Lougheed signed onto the Constitution Act of 1982 only because of guarantees in section 92(a), the so-called “resource amendment,” which gives provinces exclusive jurisdiction for some policies related to non-renewable resources, and this bill violates those provisions.

Kenney said Ottawa’s proposed draft regulations, released Wednesday, are a “flagrant” violation of section 92(a) because they propose to put “in situ” oilsands on the projects list for federal environmental assessments and exempt them only if the province maintains a hard cap on emissions from the oilpatch.

“These are exclusively within Alberta territory and they relate to the production of natural resources. There is no rational person who can see, under section 92(a), a federal interest to regulate that. It would be a blatant violation of the Constitution. The federal government is asking you to violate the Constitution of Canada in adopting this bill and that’s why, should it proceed in its current form, we’ll see the federal government in court,” Kenney said.

In situ projects, which use steam to extract crude from deep under the earth rather than open-pit mining, generally have a much smaller environmental footprint and use considerably less water. To this point, environmental reviews for these sorts of projects have been the exclusive jurisdiction of the Alberta Energy Regulator.

The Canadian Association of Petroleum Producers (CAPP) has also expressed anxiety about the risk of regulatory creep and the prospect of Ottawa applying its jurisdiction to projects that have operated solely under provincial jurisdiction.

“You can’t exempt something when you don’t have the right to regulate it in the first place,”  Alberta Energy Minister Sonya Savage said Thursday.

When asked what he thought of Ottawa’s pledge to exempt in situ projects from federal review as long as Kenney maintains an overall emissions cap, Kenney said the promise doesn’t make the bill any less unconstititutional in his view.

“I think that proviso does nothing to mitigate a clear violation of section 92(a). I think it’s beyond presumptuous for the federal government,” he said.

While uneasy with tying a regulatory process to an emissions cap, Kenney said his government has no intention of going back on the 100-megatonne cap designed by former premier Rachel Notley — a limit the sector is in no danger of exceeding.

“My government has no intention of changing that. But we do believe that this makes no sense. Only Canada would cap its production and potential prosperity. We don’t see Russia, Saudi Arabia, Qatar doing the same thing,” he said.

This story originally appeared on CBC

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