In a notable 5-2 split decision on October 13, 2023, the Supreme Court of Canada (SCC) has found the federal Impact Assessment Act (IAA) partially unconstitutional in the case of “Reference re Impact Assessment Act”. As outlined in this article from JD Supra, the SCC determined that the IAA’s treatment of “designated projects” is not in conformity with the constitution.
The issue at stake is that the IAA permits decisions regarding such projects to be determined on the basis that are not sufficiently related to adverse federal effects. The crux of the matter then lies in how these projects are identified and the criteria used to determine if they are in the public interest or have potential federal environmental impact.
It’s worth noting that this ruling holds substantial implications for major projects across the country, particularly those in the natural resources sector. Additionally, one cannot overlook the potential consequences this could have on the operations of federal and provincial regulatory bodies that oversee project approval and environmental impact assessments. As a result, this ruling certainly draws the attention of legal practitioners, policy makers in the environmental sector, and corporate entities involved in the development of major projects in Canada.
A more comprehensive interpretation of this ruling together with its full implications, potential impacts on ongoing and future projects, and steps towards compliance in light of this new reality, awaits a detailed examination of the official judgement. Legal professionals and interested parties are encouraged to familiarize themselves with the decision to fully understand its implications.