SCC hears case on whether Impact Assessment Act impedes provincial jurisdiction

There were 29 intervenors, including seven provincial AGs

SCC hears case on whether Impact Assessment Act impedes provincial jurisdiction
Stephen Hazell, Nature Canada

Oral arguments in the highly anticipated Supreme Court of Canada case assessing the constitutionality of the federal Impact Assessment Act just wrapped up in Ottawa.

The court heard Attorney General of Canada v. Attorney General of Alberta on March 21 and 22. The case originated when the Government of Alberta asked the province’s Court of Appeal to opine on whether the regulatory powers the legislation gave Ottawa unconstitutionally tread on provincial jurisdiction.

The court was split, with a 4-1 majority finding the Act ultra vires parliament. While climate change constitutes an existential threat to Canada, so does “the clear and present danger this legislative scheme presents to the division of powers guaranteed by our Constitution and thus, to Canada itself,” said the court.

Canada appealed and argued that the appeal court’s majority erred by relying on “discredited reasoning” that resource projects are either federal or provincial rather than viewing federal authority as flowing from whether a proposed project has impacts that impinge on an area of federal jurisdiction. “In so doing, they ignored principles of co-operative federalism and the shared jurisdiction over the environment between levels of government,” argued the Canadian government.

At the SCC, Alberta argued that the legislation was a “profound threat” to provincial areas of jurisdiction under the division of powers in the Constitution Act, 1867. The Impact Assessment Act improperly extends Ottawa’s control over “natural resource projects, electricity generation facilities, local works and undertakings, activities relating to use of public lands, property and civil rights, and matters of a local or private nature” – all under provincial authority under s. 92 of the Constitution.

Alberta told the SCC that the Impact Assessment Act’s true purpose is “plainly the regulation of projects and physical activities themselves, not their effects.”

Last July, Saskatchewan’s Justice Minister and Attorney General Bronwyn Eyre told Canadian Lawyer that the Impact Assessment Act was a "wrecking ball" on the province’s ability to explore and develop its energy resources and grow its economy. Along with Manitoba, New Brunswick, BC, Quebec, Newfoundland and Labrador, and Ontario, Saskatchewan intervened in the SCC case.

There are 29 intervenors, including environmental groups, First Nations and other Indigenous groups, industry organizations, and various provincial AGs.

Among the intervenors is Nature Canada. Stephen Hazell is the interim policy director at Nature Canada and a recently retired lawyer. Anna Johnston represented Nature Canada at the SCC, and Hazell initiated the organization’s application to intervene at the Alberta Court of Appeal.

The essence of the Impact Assessment Act is “information gathering,” says Hazell.

“In terms of Nature Canada's position… this legislation is, in essence, a tool for gathering information as to whether or not designated projects will have impacts on areas of federal jurisdiction,” he says. “We see this as a way in which the federal government can determine if a federal assessment is warranted, given the nature of the project, and if there are adverse environmental effects in federal jurisdiction, then proceed to an impact assessment.”

Nature Canada believes it is fully within the federal legislative authority to collect information relevant to federal authority over areas such as fisheries, migratory birds, and aquatic species. It is also within the federal government’s legislative power to use information about potential adverse impacts on those areas to determine whether federal permits should be issued or whether those effects are such that the feds should impose mitigation measures on the proponent, says Hazell.

Since the enactment of the first Impact Assessment Act in 1992, there has been a “substantial diminution” of federal environmental assessment activity across the country, he says.

“There's been fewer and fewer projects subject to federal assessment, and at the same time, the provincial assessment regimes have gotten worse and worse.

“It really runs totally contrary to the Alberta narrative that the Impact Assessment Act intrudes on federal authority, that it's going to shut down the Alberta economy – that is just simply false.”

Only four projects in Alberta are currently being assessed under the Act, says Hazell.

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