Constitutional reference on federal Impact Assessment Act

By Richard Lindgren, CELA Counsel. Originally published at The Lawyer’s Daily on Thursday, September 17, 2020.

On Sept. 22 and 23, the Supreme Court of Canada will hear three appeals regarding the constitutionality of the federal carbon pricing legislation. At the hearing, Alberta, Saskatchewan and Ontario will argue that the Greenhouse Gas Pollution Pricing Act is ultra vires Parliament, although this position has been rejected by two of the three appellate courts in these provinces.

In the meantime, while considerable legal, public and political attention is being paid to the carbon pricing appeals, there is another constitutional reference underway in Alberta that also has significant implications for protecting the environment and safeguarding public health across Canada.

Shortly after Parliament’s new Impact Assessment Act (IAA) went into effect in 2019, the Alberta government commenced a reference that asks the Alberta Court of Appeal to determine two questions:

  • Is the IAA unconstitutional, in whole or in part?
  • Is the regulatory list of designated projects under the IAA unconstitutional, in whole or in part?

In essence, the IAA replaces the former Canadian Environmental Assessment Act, 2012, but establishes a similar public process for gathering information and making decisions about the impacts of designated projects on areas of federal responsibility (e.g., fisheries, aquatic species at risk, migratory birds, Indigenous peoples, etc.).

The list of designated projects that are subject to the IAA include new or expanded mines, pipelines, nuclear waste sites and energy generation undertakings (e.g., certain in situ oil sands extraction facilities, fossil-fuel power plants, offshore oil/gas production platforms, tidal power projects, etc.).

No date has been set for the hearing of Alberta’s constitutional reference on the IAA, but all parties and interveners have filed their respective facta in recent months. (View CELA factum here.)

Alberta’s factum argues that the IAA regime substantially interferes with provincial jurisdiction over natural resources, and cannot be upheld under any federal heads of power under section 91 of the Constitution Act, 1867. According to Alberta, the IAA creates a “federal veto power over provincial project management and approvals,” contrary to s. 92A of the Constitution Act, 1867 and other heads of provincial power.

Alberta’s argument is generally supported by a number of interveners, including Saskatchewan, Ontario, and various industry associations.

In response, the government of Canada’s factum takes the position that the IAA and the designated projects regulation are intra vires Parliament. Canada maintains that, in pith and substance, the IAA regime protects areas of federal jurisdiction against adverse effects, and can be upheld under different functional heads of federal power under the Constitution Act, 1867.

Canada’s position is generally supported and expanded upon by various non-governmental interveners, including environmental groups and First Nation communities.

Interestingly, both sets of parties and interveners rely upon the Supreme Court of Canada’s landmark ruling in Friends of the Oldman River Society v. Canada [1992] 1 S.C.R. 3. This judgment upheld the constitutional validity of applying a federal environmental assessment process to a provincial dam project in Alberta.

In the IAA reference, Alberta and its supporters cite the Oldman River judgment for its “Trojan horse” warning against the use of federal jurisdiction to create an “overreaching” statutory regime that establishes far-ranging inquiries into matters of exclusive provincial jurisdiction.

Conversely, Canada and its supporters invoke Oldman River for its finding that there is no constitutional impediment to prevents the federal government from collecting a broad range of information in order to make an appropriate decision about the acceptability of potential impacts on areas of federal interest.

At present, it remains unknown when the Alberta Court of Appeal will hear these arguments and render its opinion on the two constitutional questions.

However, regardless of the reference outcome, another eventual trip to the Supreme Court of Canada cannot be ruled out in light of the national significance of the jurisdictional issues in dispute.

Richard Lindgren is a staff lawyer at CELA and is co-counsel for intervenors in the carbon pricing appeals and the IAA reference.