Impact Assessment Act Unconstitutional, ABCA Decision

In May 2022, the Alberta Court of Appeal held in a majority decision that Bill C-69, known as the Impact Assessment Act (the “IAA”), was unconstitutional. Joining Ontario, Saskatchewan and several other interest groups, the Alberta Court of Appeal determined that the IAA was an overreach of federal law power, and unjustifiably intrudes on provisional jurisdiction to regulate and manage the environmental industry projects.[1]

The IAA seeks to replace the National Energy Board Act with the Canadian Energy Regulator Act and alter how Canada’s energy industry operates. The proposed 2019 legislation was enacted to replace the 2012 Canadian Environmental Assessment Act.  It imposes a federal Assessment Regime process to determine the positive and adverse effects of designated projects in Canada that fall under federal jurisdiction. The legislation would capture the oil and gas extraction storage and process, some mining projects, highways, dams, hydroelectric projects, and waste treatment facilities.[2] In Alberta, Saskatchewan, Ontario, and amongst some indigenous groups,[3] the legislation has raised concerns about its impact on provincial jurisdiction and its scope.

The Alberta Court of Appeal’s majority decision characterized the pith and substance of the IAA as a much broader regime than indicated by the federal government. As the environment is shared jurisdiction amongst the provincial and federal governments, the federal government cannot regulate intra-provincial projects and their environmental effects. Thus, the Court of Appeal found that the IAA does not fall under the federal authority and infringes upon the constitutional division of power over the environment.[4]

As the Alberta court’s decision is a reference opinion, the IAA remains of force and effect throughout the province. However, Canada’s federal government has expressed that it will appeal this decision to the Supreme Court of Canada. Developments in this area of the law can be followed on LESA’s blog here as they are made available.

[1] Reference re Impact Assessment Act, 2022 ABCA 165.

[2] “Operational Guide: Designating a Project under the Impact Assessment Act” online: Government of Canada (19 May 2022) [https://www.canada.ca/en/impact-assessment-agency/services/policy-guidance/designating-project-impact-assessment-act.html].

[3] “Federal assessment process declared unconstitutional by Alberta court” online: Northern Ontario Business (16 May 2022) [https://www.northernontariobusiness.com/industry-news/mining/federal-assessment-process-declared-unconstitutional-by-alberta-court-5370770].

[4] supra note 1.

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