Publication News | Articles published in Energy Regulation Quarterly

"What the Supreme Court actually said in the IAA Reference," co-authored by Martin Olszynski, Nigel Bankes and David Wright, this case comment sets out what is, and is not, constitutional about the IAA regime. The authors begin by first clarifying the Act’s current legal status. They then set out the principles – post-IAA Reference – of federal and provincial jurisdiction over the environment generally, and then with respect to impact assessment specifically. This is followed by a discussion of the IAA’s specific constitutional defects as found by the majority, the implications of those defects, and their potential remedies. The authors conclude with some observations regarding the IAA Reference’s relevance to future constitutional battles over federal clean electricity regulations and an oil and gas greenhouse gas emissions cap.

In "The word “exclusive” does not confer a constitutional monopoly, nor a right to develop provincial resource projects," Nigel Bankes and co-author Andrew Leach explore the majority opinion in the IAA Reference which concludes that the federal government has arrogated to itself decision-making powers that properly belong to provincial governments; powers, that is, with respect to resource projects and other works and undertakings located entirely within a province (for short, “provincial resource projects”). The authors provide concrete examples of Premier Smith’s use of the word “exclusive” (or its synonyms) and references to a “right to develop” from the Premier’s press conference on the IAA Reference decision and the unfortunate rhetoric that necessarily leads to unjustified expectations that the federal government will need to vacate important areas of law-making responsibility in deference to these claims of exclusivity, and/or that Parliament must necessarily be deferential to a provincial right to develop resources.