The Constitutional Reference on Canada’s Impact Assessment Act: Why it Matters to CELA Clients

By Richard Lindgren, CELA counsel

CELA has recently obtained judicial permission to intervene in an upcoming court reference that will determine whether Parliament has any constitutional authority to enact the Impact Assessment Act (IAA).

After extensive public consultation and protracted Parliamentary debate, the IAA was passed in June 2019 and proclaimed into force in August 2019. In essence, the IAA establishes an information-gathering and decision-making process in relation to major projects that may affect areas of federal interest (e.g. fisheries, migratory birds, Indigenous peoples, etc.).

The IAA applies to various types of designated projects that occur across Canada, including facilities or activities that have been (or may be) proposed in Ontario by private or public proponents (e.g. new or expanded mines, reactor decommissioning, long-term management of high-level nuclear fuel waste, the Deep Geologic Repository for low- and intermediate-level radioactive waste, etc.).

In fact, the IAA Registry reveals that there are 49 matters in Ontario that are undergoing federal assessments at the present time. Where applicable, the IAA process for evaluating designated projects is intended to be robust, efficient, evidence-based and participatory in nature.

Nevertheless, in September 2019, the Alberta government passed an Order-in-Council that referred two constitutional questions to the province’s Court of Appeal for consideration:

• Is the IAA unconstitutional, in whole or in part, “as being beyond the legislative authority of the Parliament of Canada”?

• Are the project list regulations under the IAA unconstitutional, in whole or in part, by “purporting to apply to certain activities… that relate to matters entirely within the legislative authority of the Provinces”?

The Court reference is now underway, and the Alberta government has filed a six-volume record and its legal arguments against the constitutionality of the IAA and implementing regulations. The federal government is scheduled to file its responding legal arguments in support of the IAA regime by mid-April.

On behalf of itself and two other client groups, CELA applied for and received the Court’s permission to intervene in the Alberta reference. Several other non-governmental organizations, industry associations, First Nations, and the Attorneys General of Ontario and Saskatchewan are also intervening in the reference.

CELA’s intervention materials outline various reasons why the outcome of the reference is both nationally significant and of considerable interest to CELA and our client communities in Ontario. For example:

• Since the 1970s, and in accordance with our legal aid mandate, CELA has frequently participated in federal environmental assessment (EA) processes (and related court cases) on behalf of low-income persons and vulnerable communities throughout Ontario;

• These federal EA processes have typically involved large-scale projects across the province (e.g. radioactive waste facilities, nuclear power plants, etc.) that potentially pose significant risks to the environment and public health, but are not subjected to Ontario’s own EA regime;

• CELA represents First Nations representatives in two ongoing impact assessments under the IAA in relation to proposed road projects in the Ring of Fire region in northern Ontario; and

• Alberta’s legal position (if accepted by the Court) will have ramifications in Ontario by negating (or substantially narrowing) the IAA in relation to designated projects being proposed in this province, and by constraining Parliament’s legislative authority to protect the environment and human health.

In summary, the central issue of whether the IAA and the project list regulations are unconstitutional is of profound public interest and importance in Ontario. Thus, the reference outcome may have far-reaching environmental and constitutional law implications that affect Ontarians as a whole, including CELA and our clients.

Put another way, depending on the outcome, the Alberta Court of Appeal’s opinion may impact our clients’ ability to utilize the IAA to achieve the stated objectives of the new legislation, including: environmental sustainability; avoidance of adverse effects; precautionary, integrated and coordinated decision-making; and meaningful public participation throughout the impact assessment process for designated projects.

Interestingly, the Alberta reference raises broad constitutional issues that were addressed almost 30 years ago by the Supreme Court of Canada’s precedent-setting decision in the Oldman River case. CELA intervened in the Oldman River case, and the Supreme Court upheld the constitutionality of the federal EA process in existence at that time.

In the wake of the Oldman River judgment, Parliament passed a new EA statute in 1992, and then replaced it with another national EA statute in 2012. The IAA repeals and replaces the 2012 law, but in many key respects, the IAA is substantially similar to the previous EA legislation at the federal level.

CELA’s legal argument in the Alberta reference will be filed and served by the end of April, and will take the position (based on Oldman River and other jurisprudence) that Parliament has the requisite constitutional authority to pass the IAA and the project list regulations. CELA will post further blogs on this important reference as it proceeds to a hearing before the Alberta Court of Appeal later this year.