OTTAWA: The Canadian Constitution Foundation (CCF) is intervening in the Supreme Court hearing about the constitutionality of the federal Impact Assessment Act (IAA), also commonly known as the “no more pipelines” law.
The IAA sets out when and on what terms resource projects will be subject to federal environmental review. Put simply, the IAA provides for a mechanism through which the Minister may designate certain projects or activities, which are then automatically prohibited if they “may cause effects within federal jurisdiction”. This prohibition remains in effect unless and until Canada determines whether the project must undergo further assessment, and if so, whether it can ultimately move forward.
On May 10, 2022, the Alberta Court of Appeal found the IAA unconstitutional in a reference case. The Court held that the IAA “constitutes a profound invasion into provincial legislative jurisdiction and provincial proprietary rights” which, if upheld, would result in the “centralization of the governance of Canada to the point this country would no longer be recognized as a real federation.”
“The CCF is looking forward to intervening in the Supreme Court appeal to assist the court in a reference case that will have significant implications for Canadian federalism, the rule of law, investor certainty, and resource development. The CCF’s position is that the IAA and the associated regulations are outside the powers of the federal government,” said CCF Litigation Director, Christine Van Geyn.
In its written submissions, the CCF argued that IAA’s impacts on provincial jurisdiction are not merely incidental and in fact eviscerate provincial powers related to local works and development of natural resources. Further, the CCF argued that the Greenhouse Gas Pollution Pricing Act reference confirms that Parliament may not under the Peace Order and Good Governance clause block a project on the basis of its “extraprovincial effects”, such as greenhouse gas emissions.
“The plain text of the Constitution Act, 1867 grants the provinces exclusive jurisdiction over matters falling within section 92. While flexible federalism permits incidental effects, significant incursions into another government’s head of power undermine the exclusivity principle at the heart of Canada’s federal structure. Doing so, in turn, disrupts key functions of federalism, including its ability to accommodate regional interests, foster government accountability, and stability and liberty,” said lawyer for the CCF, Brett Carlson of Borden Ladner Gervais LLP.
The CCF is represented in this case by Brett Carlson, Aidan Paul and Peter Banks of Borden Ladner Gervais LLP and is grateful for their hard work and diligence on this case.
Members of the public interested in supporting the costs associated with this case can make a tax deductible charitable donation at theCCF.ca/donate/