A Landmark Decision
Reference re Impact Assessment Act
In October, the Supreme Court made a landmark ruling in a case that looked at the constitutionality of the federal environmental assessment scheme. Asked to consider whether the Impact Assessment Act and one of its regulations went beyond Parliament’s legislative authority under the Constitution, the Court ultimately ruled the federal impact assessment scheme is largely unconstitutional.
The Impact Assessment Act and its regulations establish a complex information gathering and regulatory scheme in two parts. Firstly, sections 81 to 91 of the Act establish an impact assessment process for projects carried out or financed by federal authorities on federal lands or outside Canada. It requires the federal authority to decide if the project will likely cause significant adverse environmental effects and, if so, whether these effects are justified in the circumstances. Secondly, the remaining provisions in the Act and the regulations outline what projects are considered “designated projects” under the Act, which thus makes them subject to federal review.
Alberta’s Lieutenant Governor referred the matter to the province’s Court of Appeal. A majority of the Alberta Court of Appeal concluded that the Act and the regulations were beyond (ultra vires) Parliament’s legislative authority under the Constitution and, therefore, unconstitutional.
The Attorney General of Canada then appealed this decision to the Supreme Court.
Writing for a majority of the Court, Chief Justice Wagner ruled that the federal impact assessment scheme is partly unconstitutional. While the constitutionality of sections 81 to 91 of the Act was not challenged, Chief Justice Wagner said that the process set forth therein is constitutional. However, the balance of the scheme — the “designated projects” portion — is ultra vires Parliament and thus unconstitutional for two reasons. First, it is not directed at regulating “effects within federal jurisdiction” as defined in the Act. Second, the defined term “effects within federal jurisdiction” does not align with federal legislative jurisdiction.
As Chief Justice Wagner wrote, “[e]nvironmental protection remains one of today’s most pressing challenges. To meet this challenge, Parliament has the power to enact a scheme of environmental assessment. Parliament also has the duty, however, to act within the enduring division of powers framework laid out in the Constitution”.
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