In a 5-2 majority ruling, the Supreme Court of Canada has determined that the federal government’s Impact Assessment Act (IAA) is partially unconstitutional. The court discerned that the Act empowered the federal government to propose environmental regulations that should notionally fall within provincial jurisdictions. Chiefly, the court deemed that the IAA’s approach to earmarking projects for environmental assessments as being ultra vires —beyond the reach of federal jurisdiction.
The IAA mandates environmental assessments from the Impact Assessment Agency of Canada before the commencement of certain projects that could have environmental implications. While acknowledging this requirement, the Justices in the majority—Chief Justice Richard Wagner, and Justices Suzanne Côté, Malcolm Rowe, Sheilah Martin and Nicholas Kasirer—expressed concerns that the IAA lacks a clear decision-making mechanism within its regulatory scheme. This vagueness, according to them, skews the focus away from federal impacts.
In addition, the majority identified a potentially troublesome phrase in the Act: “effects within federal jurisdiction”. They found that it seemed to award the federal government sweeping power, which they believed violated the separation of powers doctrine embedded in the Canadian Constitution. Further, by covering an unrestricted range of interprovincial environmental changes—including greenhouse gas emissions—it essentially allows virtually any project to fall under the purview of IAA assessment.
In a dissenting note, Justices Andromache Karakatsanis and Mahmud Jamal argued that the environment is not confined by territorial boundaries and hence demands engagement from all governmental tiers. They contended that the broad definitions used in the IAA ensure a transparent process for information gathering and decision making for project assessments. They also suggested that courts should evaluate whether the federal government is attempting to regulate projects that exclusively fall within provincial jurisdiction on a case-by-case basis.
This ruling only partly overturns a previous decision by the Alberta Court of Appeal, maintaining the constitutionality of the sections of the IAA pertaining only to projects carried out or financed by federal authorities on federal lands or outside of Canada. Although the ruling is an advisory one, it carries serious implications. Federal Environment Minister Steven Guilbeault has already indicated that Parliament would amend the legislation in line with the judgement.
Controversy is not new for the IAA. In 2021, Ecojustice, a Canadian environmental group, criticized the Act for its insufficient enforcement mechanisms and continued harms to Indigenous communities.
You can read more about this ruling in the original article on JURIST.