Alberta believes that Bill C-69, enacted in 2019, would block major infrastructure projects such as mines and pipelines on environmental grounds.Jeff McIntosh/The Canadian Press
The Alberta Court of Appeal has rejected a bid by Cold Lake First Nations to expand its evidence in a case challenging the federal Impact Assessment Act, as well as an application by a think-tank to be part of the court process.
The case is Alberta’s second legal challenge to Bill C-69, enacted in 2019. The province believes the Act would block major infrastructure projects such as mines and pipelines on environmental grounds. The Supreme Court of Canada, in a 2023 non-binding opinion, advised that Ottawa overstepped its constitutional authority in how it regulates major resource projects. Changes made by the former federal government, under then-prime-minister Justin Trudeau, did little to satiate Alberta.
The Court of Appeal is now examining whether Parliament has the constitutional jurisdiction to enact the amended act, and whether the law impairs the power of provinces.
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Cold Lake First Nations had applied for permission to add two affidavits to its evidence – one to be sworn by the Cold Lake First Nations’ Chief and one by an employee. The material would have totalled 166 pages, inclusive of exhibits.
The proposed evidence related to the communities’ experience with gaps in the Alberta Energy Regulator’s environmental regulatory process, consultation with the province and Alberta’s land-use planning rules.
“While Alberta cannot artificially limit the legal arguments by limiting the record, there must be some boundaries as to the factual and legal issues raised in the reference,” Justice Anne Kirker wrote in her ruling Wednesday.
Cold Lake also wanted to submit a letter signed by the Chiefs of the Cold Lake First Nations and several other First Nations regarding the Pathways Alliance project. The massive carbon capture project would include a 400 kilometre-long pipeline to transport CO2 from Alberta’s oil sands to the Cold Lake region.
The letter detailed concerns about Alberta’s environmental review process, and argued that the Pathways project falls within federal jurisdiction.
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But Justice Kirker said the proposed evidence would raise issues well beyond the scope of the case.
She also noted that the material regarding the Pathways project “includes inadmissible hearsay and opinion evidence,” including newspaper articles, opinion columns and other correspondence.
“Even if the evidence was relevant to an issue properly before the Court in this reference, it is inadmissible because references are presumed to engage all the rules of evidence and procedure that are normally applied by the Court,” she said.
The MacDonald-Laurier Institute, an independent non-profit think tank with expertise in constitutional governance, had applied as an intervener in the case. But Justice Kirker said that it was unlikely the group’s submissions would add anything “useful or different” to the proceedings.
Justice Kirker said she agreed with Ottawa’s concerns “about the apparent breadth of the Institute’s proposed submissions and the extent to which they appear likely to duplicate the submissions of others.”
Specifically, she found that the submissions would overlap with insights from the Indian Resource Council, Cold Lake First Nations, the Canadian Constitution Foundation, and the provinces of Alberta, Ontario and Saskatchewan.
However, Justice Kirker ruled that Enserva – an association that represents 190 companies that do business in the energy services industry – would be allowed an intervener role to ensure the court gains a full range of perspectives about the legal and practical effects of the amended act.