One of the most important questions lawmakers face today is how to assess and manage the environmental and social effects of crucial infrastructure development and resource extraction. This challenging task is further complicated because it must be accomplished within the bounds of Canada’s constitutional framework.
Protection of the environment is a shared responsibility between federal and provincial governments. Although it is not formally allocated under sections 91 and 92 of the Constitution Act, 1867, it implicates key constitutional powers of each level of government. These powers occasionally overlap, but are also subject to firm constitutional limits.
In Reference re Impact Assessment Act, the Supreme Court of Canada concluded that the bulk of the existing federal impact assessment framework exceeded its constitutional bounds and was therefore ultra vires Parliament’s power1.
What you need to know
Cooperative federalism—while important—has limits. Legislation must fall squarely within the appropriate government’s legislative competence.
Constitutionality in the letter of the law. In determining the constitutionality of a law, the focus is on the purpose and effects of the law as written, not merely as it is administered. An overbroad law cannot be upheld on the assumption that, in practice, it will be administered in a constitutional manner.
What’s next. Since it was a reference decision, the Court’s conclusion that the Impact Assessment Act is ultra vires does not automatically suspend the application of the Act. Nonetheless, the decision will likely lead to a legislative overhaul, using the Court’s reasons as a guide to ensure constitutional compliance.
The federal environmental assessment regime
Federal environmental assessment legislation has existed for many decades. The latest iteration—the Impact Assessment Act (the IAA)—was enacted in 2019. The IAA sets out a complex scheme for information gathering, approving, and regulating physical activities or projects that may have environmental or health, social or economic effects on matters within federal jurisdiction. This includes a wide ambit of matters, including airports and interprovincial works and undertakings such as interprovincial railways and pipelines. However, the IAA also regulates federal “aspects” of projects, like mines, that are primarily under provincial jurisdiction. Those aspects include Indigenous peoples and federal lands, fish, aquatic species, migratory birds, as well as interprovincial or international environmental effects2.
The heart of the IAA is a scheme that can be referred to as “designation, prohibition and assessment”. Projects that are designated as falling within the scheme are prohibited from proceeding until the assessment is complete, and the relevant federal decision-maker has approved it.
Under the IAA, projects are “designated” in one of two ways: (1) because they involve certain physical activities identified in the IAA’s Regulations as potentially having adverse environmental or health, social or economic effects on areas of federal jurisdiction; or (2) by order of the Minister of Environment and Climate Change Canada, if the Minister believes the project could cause adverse federal effects3.
Once designated, the project enters the planning and assessment phases, during which the project proponent is effectively prohibited from proceeding4. The Minister and the Governor in Council then decide whether, in light of the results of the assessment, the project should receive permission to proceed—and if so, what conditions should apply to mitigate the effects of the project5. For a project to proceed, the decision-maker must decide that the effects in question are in the public interest.
The Supreme Court’s decision
The majority of the Court found the IAA ultra vires, in part
The majority of the Supreme Court concluded that the portion of the IAA pertaining to projects on federal land or land outside Canada is intra vires the powers of federal Parliament6. However, it found the core of the act—pertaining to “designated projects”—is ultra vires7. The Court acknowledged that although environmental protection is clearly important, it must be accomplished “within the enduring division of powers framework laid out in the Constitution”. And it confirmed that, although flexibility and cooperation are important aspects of federalism, they are not an excuse to override or modify the division of powers.
The Court conducted the well-established “pith and substance” analysis, which seeks to characterize the “main thrust” of the law by examining its purpose and its effects. Once that is determined, the question is whether the law should be classified under a federal or provincial head of power. It held that the pith and substance of the “designated projects” aspect of the legislation was assessing and regulating designated projects with a view to mitigating or preventing their potential adverse environmental, health, social, and economic impacts8. It concluded that this is ultra vires federal legislative authority, because the “designated projects” scheme is insufficiently tailored toward regulating “effects within federal jurisdiction”9. The scheme does not distinguish between activities where Parliament has broad jurisdiction over the activity itself (e.g., interprovincial pipelines) and those where Parliament only has limited jurisdiction over the activity’s impacts on federal heads of power (e.g., a provincially regulated mining project with the potential to impact fisheries). Although Parliament can pass legislation to regulate the latter category, it must ensure that the dominant characteristic of the legislation is regulation of the federal aspects of a project, and not the project as a whole.
The Court concluded that the “designated projects” scheme fell short in two key ways.
First, even though “federal effects” are required to trigger the scheme, they do not, on the terms of the Act, drive decision-making, nor is the scheme directed only at regulating federal effects. For example, in making the initial screening decision—whether an assessment is required under the IAA—the legislation provides for broad discretion to consider an open-ended list of factors, a number of which are unrelated to federal effects. Canada argued that, in practice, the most important factors are the federal effects. But the Court rejected this argument, since that is not what the legislation actually says. The Court concluded that the scheme is constitutionally problematic because it creates “a risk that projects with little or no potential for adverse federal effects will nonetheless be required to undergo an impact assessment on the basis of less relevant, yet mandatory, considerations”10.
Similarly, at the final approval stage, the IAA stipulates that the decision must be made in the “public interest”, which expressly requires the decision-maker to consider a variety of federal and non-federal effects. The Court was particularly concerned that “the adverse non-federal effects can amplify the perceived severity of the adverse federal effects and, effectively, become the underlying basis for the conclusion that the latter are not in the public interest”11. This framework shifts the analysis away from deciding whether the adverse federal effects are justified (which was the regime under the IAA’s predecessor statute) and instead directs it to the wisdom of proceeding with the project as a whole.
Second, the court was concerned with the definition of “effects within federal jurisdiction,” and its potential for influencing the broad decision-making elements of the IAA12. For example, some effects defined as “effects within federal jurisdiction” effectively captured “an unlimited range of interprovincial environmental changes” such as greenhouse gas emissions that cross provincial and national borders13. Although the federal government attempted to justify the breadth of this definition under the Peace, Order and Good Government (POGG) power, the Court rejected this argument based on the sheer breadth of the IAA (in contrast to the limited regulatory regime of carbon pricing it had previously upheld under POGG).
In sum, the Court held that the “designated projects” scheme intrudes more than incidentally into provincial legislative authority, including property and civil rights in the province, matters of a local nature, local works and undertakings, and non-renewable resources, forestry resources and electrical energy. It was therefore ultra vires Parliament.
The dissent would have upheld the IAA
Justices Karakatsanis and Jamal would have upheld the legislation as intra vires the federal power. Their reasons emphasized the value of cooperative federalism and the presumption of constitutionality.
Since this was a reference, which is an advisory opinion from the Court, the “designated projects” aspect of the IAA has not been “struck down.” However, in light of the strong persuasive value of the Supreme Court of Canada’s decision, project proponents can expect an overhaul of the federal environmental regime on the horizon. To pass constitutional muster, the next iteration of the legislation will require more emphasis or focus on the federal effects analysis for projects that are primarily provincially regulated. This may mean that under future regimes, fewer projects will be designated for federal assessment than there would have been under the former IAA.
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This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
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