Legal clinic heads to top court in constitutional challenge

The University of Calgary’s Public Interest Law Clinic is back at the Supreme Court of Canada this month, acting as legal counsel for the Canadian Association of Physicians for the Environment (CAPE). CAPE is appearing before the court as an intervener in a constitutional challenge to federal impact assessment legislation (SCC Case Number 40195).

In fall 2022, the clinic was retained by CAPE, a non-profit organization of physicians in Canada who work to secure human health by taking evidence-based action on environmental issues with advocacy, collaboration and education.

The Impact Assessment Act, SC 2019, c 28, s 1 (IAA) is the most recent of several legislative regimes of federal impact assessment enacted since the 1980s. It provides a process by which Canada can evaluate the social, economic, and environmental effects of designated projects. Among several other notable changes from earlier iterations of the legislation, the IAA authorizes the federal government to consider the impacts of greenhouse gas (GHG) emissions on climate change in determining whether a project is in the public interest.

The act takes into consideration relevant natural and social science evidence on project impacts, Indigenous knowledge, and other community engagement. In September 2019, the government of Alberta announced it would challenge the constitutionality of the IAA. In May 2022, the Alberta Court of Appeal (ABCA) released its opinion in Reference re Impact Assessment Act, 2022 ABCA 165, in which a majority of the ABCA held that the IAA is an overreach on provincial jurisdiction and is unconstitutional — in other words beyond the powers of Parliament’s legislative authority in accordance with section 91 of the Constitution Act, 1867. The federal government appealed the ABCA decision to the Supreme Court of Canada.

“As legal counsel, the clinic advised and assisted CAPE with preparing and filing a successful application for leave to intervene in the SCC proceedings,” explains professor Shaun Fluker, the clinic’s executive director.

“Our students have also been assisting with preparation of the written and oral legal argument which will be put before the SCC on March 21.”

Submission argues for including GHGs, climate change in assessment process

CAPE’s submissions before the court will argue that inclusion of GHGs and climate change in the federal impact assessment process and public interest decision-making is clearly within federal jurisdiction and that the act is constitutional.

“Fundamentally, affirmation that the federal government has jurisdiction to consider climate-polluting greenhouse gas emissions and Canada’s climate commitments when assessing major projects is essential to securing human and planetary health,” says Dr. Joe Vipond, emergency physician, clinical assistant professor in the Cumming School of Medicine, and CAPE past president. 

“This view aligns with CAPE’s physician-led approach to mitigate climate change in order to protect human health.”

Case brings focus on extent of federal and provincial jurisdictions

Along with Fluker, professors Sharon Mascher and David Wright will appear before the court on March 21 to make submissions on behalf of CAPE.

“CAPE’s intervention before the SCC brings an important focus to the extent of federal jurisdiction over GHG emissions and climate considerations in the federal impact assessment process,” says Mascher.

“It has been a privilege to work alongside a team of dedicated colleagues and students on each step of this application — from leave to intervene through to oral submissions before the SCC — to advance these submissions.”

Fluker notes that this is the second time the clinic has appeared as counsel before the Supreme Court of Canada, having done so in 2018 in the Redwater Energy proceedings. 

“These type of projects — interventions at the Supreme Court of Canada — is really what the Calgary Curriculum is all about,” he says. “Not only are we providing law students with opportunities to work on legal matters at Canada’s highest court, on a topic of significant importance for Alberta and Canada as a whole, but we’re also providing a valuable service to the broader community.”

Hands-on learning valuable to students

Students involved with the project recognize the value of the hands-on experience and the importance of the case in Alberta and Canada.

“The opportunity to work on this intervention with members of faculty and CAPE has been a highlight of our time as law students at UCalgary,” says second-year student Nathan Murray.

“The Impact Assessment Act has formed a major part of my studies throughout law school,” adds third-year student Bronwyn Evans. “I first encountered the statute as a first-year summer research assistant exploring environmental assessment in Canada. In second year, I took Professor Wright's environmental law class, during which I studied the act in depth. Supporting CAPE's intervention as a third-year clinic student is, therefore, the perfect capstone of my law degree."