October 24, 2023

The Impact Assessment Act ruled unconstitutional

In a landmark decision by the Supreme Court of Canada, the Impact Assessment Act (IAA) has been ruled unconstitutional.

Speaking with Canadian Lawyer, partner Andrew Bernstein said that the court’s approach was expected.

“I think there was a feeling among many constitutional lawyers that the federal government had gone a little too far in terms of regulating things that are predominantly provincial,” he said.

“The federal government needs environmental legislation, like the IAA, for a whole variety of reasons. The court absolutely affirmed that there is a federal role to play, even if a project is predominantly within provincial jurisdiction. It just said that the role is a lot narrower than the act, as currently constituted, would provide.”

The IAA took effect in 2019 as a regulatory tool used to assess Indigenous rights and environmental protection for projects in Canada, as well as determining public interest in respect to a project’s adverse effects.

Read: Q4 Torys Quarterly: Impact Assessment Act found unconstitutional—now what?

Reflecting on the court’s ruling with The Globe and Mail, Andrew explained that “the federal government can’t use federal jurisdiction as a wedge to open the door to a full-fledged public interest assessment of the project as a whole.”

The federal government must make decisions based solely on areas of federal jurisdiction.

Maintaining his position, Andrew told National Magazine that you can't just use areas like fisheries or Indigenous people as a wedge or a hook to enforce project reviews.

“If it affects fisheries, you can ask if the impact is too significant to approve the project. You have to stay in your lane, and your lane in respect of a provincially regulated project is much narrower,” he added.

As reported by The Globe and Mail, the federal government has already committed to revising the IAA in its efforts to maintain stability in federal project reviews.

You can read more about our Disputes and Investigations work on our practice page.

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