OTTAWA – The Canadian Constitution Foundation (“CCF”) is pleased with the Supreme Court of Canada’s decision today, holding that the federal Impact Assessment Act (the “IAA”) is an unconstitutional violation of provincial constitutional jurisdiction.
From its inception, the IAA faced fierce opposition on the basis that it significantly intruded into provincial jurisdiction, caused significant delays and regulatory uncertainty, and dissuaded investment.
In short, the IAA requires proponents of a wide range projects many of which were traditionally regulated by provincial governments–to undergo a lengthy and comprehensive federal environmental assessment.
The federal assessment purported to review projects on an exceedingly wide range of economic, social, health, environmental, and even gender-related impacts.
Ultimately, the IAA conferred upon the federal government authority to determine whether, and on what terms, certain projects could proceed in Canada. This led to the Province of Alberta launching a constitutional reference case in 2020.
In a 5-2 decision written by Chief Justice Richard Wagner, the SCC held that the vast majority of the IAA was unconstitutional, and that Parliament “plainly overstepped their constitutional competence” by purporting to regulate projects that would otherwise fall within provincial jurisdiction on the mere basis that they could have effects within federal jurisdiction.
In reaching this conclusion, the chief justice emphasized that the federal government’s effective veto under the IAA was “constitutionally problematic” because it grants Parliament “practically untrammelled power to regulate projects” where it would not otherwise have the jurisdiction to do so.
The CCF is pleased that its submissions with respect to the role of severance in constitutional cases were of assistance to the Court, which found that a narrow “secondary scheme” in the IAA related to the regulation of federal projects could be severed from the unconstitutional remainder of the Act. Similarly, the Court’s conclusion that the “interprovincial effects” clause in the IAA could be triggered by the emission of any greenhouse gas emissions was consistent with the CCF’s submission regarding the interpretation of this critical provision.
CCF Litigation Director Christine Van Geyn said she was “thrilled” with the decision.
“This case is a major victory for the integrity of Canada’s constitutional division of powers,” she said. “The court has rightly reined in the federal government’s overreach in the IAA.”
“Apart from a small portion of the act, this clear government intrusion into provincial jurisdiction has been struck down,” she added.
The CCF intervened in this historical decision and was represented by Brett Carlson, Aidan Paul, and Peter Banks of Borden Ladner Gervais LLP.
“The decision marks the first significant development in constitutional law regarding federal authority over environmental assessments in the last 30 years, and sends a clear signal that federal involvement in energy projects must be firmly rooted in a federal constitutional jurisdiction,” said Carlson.
“The decision is a major step in the recent saga of constitutional cases related to federal and provincial jurisdiction over environmental matters, and represents a robust application and affirmation of the principles underpinning Canada’s division of powers,” Paul added.
