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When the Supreme Court of Canada ruled that the Trudeau government’s Impact Assessment Act was largely unconstitutional, it also mentioned the need for federal and provincial governments to exercise their powers “in the spirit of co-operative federalism.”
So much for that noble idea.
As the past week has shown, co-operation doesn’t seem possible.
Since the pivotal legal decision last week, both sides have talked about wanting to work together. Heck, a joint provincial-federal working group with senior civil servants even met on Wednesday.
Then, political reality strikes and both sides reveal what they’re really thinking. It’s not about working hand-in-hand, unless brass knuckles are involved.
For example, federal Environment Minister Steven Guilbeault was asked by reporters Tuesday about the incoming oilpatch emissions cap in the wake of the top court’s decision, as well as the appearance of Suncor Energy CEO Rich Kruger at a parliamentary committee this week.
Kruger had been asked to show up at the committee to explain his remarks from August about the oil company’s “disproportionate emphasis on the longer-term energy transition.” Those comments led Guilbeault to blast the CEO during the summer, saying it reinforced the need for a federal emissions cap on Canada’s oil and gas industry.
In Ottawa this week, Kruger reiterated Suncor’s commitment to being part of the Pathways Alliance oilsands group and working together to reach net-zero emissions by 2050.
Apparently, that didn’t change the environment minister’s mind.
“No, not at all,” Guilbeault told reporters in Ottawa.
“If anything, he is doubling down on the fact that a large oil company like his should ignore an issue like climate change and, to me, that is unacceptable.”
Ignoring the fact Kruger said nothing about brushing aside climate concerns, the CEO also faced flack for saying he hadn’t read the new federal clean fuel regulations in depth.
“It reinforces the fact that we as a federal government, we need to make sure the oil and gas sector does its fair share when it comes to fighting climate change,” Guilbeault added.
The sector remains the largest emitting industry in Canada, responsible for 28 per cent of all greenhouse gas emissions in 2021. It has also been lowering emissions per barrel, which have dropped by 23 per cent since 2009, a report by S&P Global Commodity Insights recently found, while many companies have adopted a net-zero target.
New federal policies, including the national price on carbon and clean fuel regulations, are in place, while draft regulations on the emissions limit for the sector are coming this fall.
Now, you might think the federal government’s plans for an emissions cap might slow down after the Supreme Court’s ruling on the Impact Assessment Act. The top court sided with Alberta and found parts of the act unconstitutional, veering into areas of provincial authority.
Yet, Guilbeault and Natural Resources Minister Jonathan Wilkinson indicated the government is proceeding with the emissions cap.
“I don’t see the ruling as being a problem for the government moving forward,” Wilkinson told reporters.
“Obviously, we want to work with the provinces and territories to ensure that we’re actually doing these things in as collaborative a way as we can. But at the end of the day, the federal government has a responsibility to protect the environment.”
On the provincial side, Premier Danielle Smith, who has previously raised the possibility of using her sovereignty act to fight the emissions limit and federal Clean Electricity Regulations (CER), responded by blasting the federal environment minister, yet again.
“I would say that Environment Minister Steven Guilbeault is an ideologue. He’s always been an ideologue. He’s always been going off announcing things unilaterally,” Smith said Wednesday.
“I just take him less and less seriously because, quite frankly, they lost at the Supreme Court. The Supreme Court said they have to make sure that they proceed in a spirit of co-operative federalism.”
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This feud is unfolding while the province has launched an aggressive $8-million advertising campaign against the federal government’s CER, warning it could lead to blackouts and massive increases in electricity bills.
So where is the spirit of co-operation?
In last week’s court decision, Supreme Court Chief Justice Richard Wagner wrote in the 5-2 majority decision that there’s no doubt Parliament can pass impact assessment legislation to minimize the risks that some major projects could pose to the environment.
But the act overstepped the mark, he wrote.
“It remains open to Parliament to design environmental legislation, so long as it respects the division of powers. Moreover, it is open to Parliament and the provincial legislatures to exercise their respective powers over the environment harmoniously, in the spirit of co-operative federalism.”
University of Alberta law professor Eric Adams said the idea of co-operative federalism is frequently raised by the top court in matters where both levels of government have a role to play.
“The upshot of that is we’re going to have to live in a world in which both governments are exercising jurisdiction over similar areas or topics, and that co-operation would be better than competition,” he said Thursday.
Yet, there’s also a political reality.
Both sides seem to view compromise as the other side giving in.
With the announcement of billions of dollars in proposed decarbonization projects still in the air — such as Dow’s massive net-zero carbon emissions ethylene cracker and derivatives complex in Alberta — both sides need to sort out these issues or risk losing much-needed investment.
“It doesn’t look good when you look on social media, but that’s usually not the whole story,” said former provincial energy and environment minister Sonya Savage, who is now senior counsel with law firm Borden Ladner Gervais.
“I suspect there’s a lot of collaboration still happening behind the scenes . . . It’s too important to not find a path forward.”
Chris Varcoe is a Calgary Herald columnist.
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