Open in full screen mode According to the court, the law encroaches on the jurisdictions of the provinces. The Supreme Court of Canada agrees with Alberta and declares that the Impact Assessment Act adopted in 2019 by the federal government encroaches on provincial jurisdiction, particularly with regard to management of their natural resources. The Impact Assessment Act (New window) regulates the entire assessment process conditional on the #x27;approval of projects and infrastructure such as pipelines, hydroelectric dams or mining sites. It allows the government to examine how a project impacts Ottawa's work on climate change, gender parity and certain social issues, as well as its cumulative effects when combined with other projects. In a split decision (New window), Chief Justice Richard Wagner, speaking for the majority, wrote that the federal impact assessment regime is in part unconstitutional because it oversteps the bounds of the federal jurisdiction. He notes from the outset that the assessment process provided for in sections 81 to 91 of the Land Assessment Act impact of federal or federally funded projects, which were not challenged by Alberta, respects the constitution. He adds, however, that the rest of the regime, which affects what Ottawa considers designated projects, is unconstitutional. According to him, the designation process is problematic, because it gives the decision-maker virtually absolute power to regulate projects as such, regardless of whether Parliament has jurisdiction to regulate a concrete activity. Citing the notion of public interest, Justice Wagner notes, for example, that a decision on whether adverse effects within an area of federal jurisdiction are in the public interest is transformed into a decision relating to the question of whether the project as a whole is in the public interest. At the same time, the notion of effects falling within an area of federal jurisdiction poses a problem because its scope is too great in the evaluation process and risks encroaching on provincial jurisdiction, according to the majority. The Alberta Court of Appeal rendered a judgment declaring the law unconstitutional in May 2022. The Attorney General of Canada then referred the matter to the highest court. Friday's ruling means the current law can continue to apply to projects located on Crown land. However, any other project falls more under the old version of the Impact Assessment Act, explains Mr. Stéphane Beaulac, full professor at the University of Montreal specializing in constitutional law and legal advisor to the Dentons LLP firm in Montreal.
According to the court, while certain sections of the Environmental Impact Assessment Act comply with the constitution, the majority of the law, which relates to “designated projects” encroaches on provincial jurisdiction.
With this decision, the Supreme Court splits the actions of the different governments like a pair of scissors. However, environmental skills are interdependent and cannot be practiced in silos. This split is inconsistent with the reality of things, notes Me Marc Bishai, lawyer at the Quebec Environmental Law Center in a press release.
For its part, the Canadian Association of Petroleum Producers (CAPP) welcomes the clear decision of the Supreme Court. In a press release, she says she looks forward to working with the federal and provincial governments to ensure that projects in the national interest […] are carried out in a timely manner.
Ecojustice, a pan-Canadian environmental law charity, says it is disappointed with the decision. In a press release, lawyer Joshua Ginsberg points out, however, that even if the Court ruled that the [Impact Assessment Act] was not sufficiently focused on federal jurisdiction, it confirmed that no project is not immune from careful environmental review.
In a press briefing, the Prime Minister of Alberta, Danielle Smith, welcomed this decision.
If you believe in fairness, common sense and the sanctity of the Canadian Constitution. Today is a great day.
A quote from Danielle Smith, Premier of Alberta
According to her, “this law […] is a threat to the existence of Alberta's economy and is already responsible for the loss of tens of billions of dollars in investment and thousands of jobs across the country.”
She also denounces Ottawa's deaf ear when it comes to possible changes to the law to bring it into line with the constitution. They just don't listen, she says.
She adds that in order to avoid launching a new debate in court, the federal government must abandon its Clean Electricity Regulation and its ceiling emissions [from the oil and gas sector].
Jason Kenney, the former premier of Alberta, also spoke on the subject. This is a historic day for Alberta resource workers. It's a great day for the Constitution and federalism, declared the one who initiated the legal steps to challenge the constitutionality of the law.
In Ottawa, the federal ministers of the Environment, Steven Guilbeault, and of Energy and Natural Resources, Jonathan Wilkinson, are of the opinion that this decision vindicates the federal government on the merits of the law. They particularly highlight the Court's reiteration of the federal government's right to request impact studies.
I think the amendments that are required are mostly surgical
A quote from Jonathan Wilkinson, Minister of Energy and Natural Resources
Steven Guilbeault clarified that the law is not invalidated […] and we will make the adjustments suggested by the Supreme Court. But the law remains in force and we will continue to implement it.
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