In mid-2019, Parliament repealed the Canadian Environmental Assessment Act, 2012 and replaced it with the Impact Assessment Act (IAA). The new legislation establishes a broad, science-based, and participatory process for gathering information and making decisions about the potential impacts of designated major projects (including mines, pipelines or nuclear waste sites in Ontario) upon areas of federal jurisdiction.

In September 2019, the Alberta government asked the province’s Court of Appeal to hold a Judicial Reference to determine whether the IAA regime unlawfully intrudes into matters of exclusive provincial jurisdiction set out in the Constitution Act, 1867. In March 2020, CELA and two client groups jointly received permission from the Court to intervene in this nationally important test case. In June 2020, CELA filed its written legal argument, which takes the position that the IAA and the underlying regulations are constitutionally valid from a division-of-powers perspective. The Reference hearing by the Alberta Court of Appeal was argued, via videoconference, on February 22-26, 2021.

At the close of the hearing, the Court reserved its decision. In the summer of 2021, the Court allowed the parties and intervenors to file further written submissions regarding the Supreme Court of Canada’s judgment in March 2021 that upheld the constitutionality of the federal carbon pricing legislation.

In a split decision released by the Alberta Court of Appeal on May 10, 2022, a majority of justices opined that the IAA was unconstitutional because it impermissibly intruded into matters of exclusive provincial jurisdiction. A dissenting justice found that the IAA was constitutionally valid.  The Alberta Court’s opinion has now been appealed by the federal government to the Supreme Court of Canada.

CELA and two Ontario-based clients have obtained the Supreme Court’s permission to intervene in the appeal. CELA’s position is that the environmental assessment regime established by the IAA can be upheld under various heads of federal jurisdiction under the Constitution Act, 1867. The appeal will be heard on March 21-22, 2023, and the Court will receive submissions from the two main parties (Attorney General of Canada and Attorney General of Alberta), nine provincial Attorneys General, and almost two dozen intervenors (e.g., non-governmental organizations, industry associations, and Indigenous representatives).