Case Update: Supreme Court Ruling on the Impact Assessment Act
In a 5:2 split decision released on October 13th, the Supreme Court of Canada (SCC) opined that most of the federal Impact Assessment Act (IAA) is unconstitutional.
Shortly after the IAA was enacted by Parliament in 2019, the Alberta government asked the province’s Court of Appeal to advise whether the IAA and the projects list regulations were unconstitutional. In 2022, the Court released a lengthy decision in which the majority of Justices found that the IAA and regulations were unconstitutional because they interfered with matters of exclusive provincial jurisdiction under the Constitution.
This ruling was then appealed by the Attorney General of Canada to the SCC. Several provincial Attorneys General intervened in the appeal, as did numerous industry associations, business groups, First Nations, and non-governmental organizations, including CELA clients. Writing for the majority, Chief Justice Wagner held that sections 81-91 of the IAA – which create an assessment process for projects funded or undertaken by federal authorities on federal lands or outside Canada – are constitutionally valid.
However, the majority opinion also concluded that the IAA and regulations which entrench the “designated projects” regime are beyond federal jurisdiction: “Parliament has plainly overstepped its constitutional competence in enacting this designated projects scheme”.
The SCC’s ruling is an advisory opinion, not a judgment that strikes down most of the IAA. At present, the IAA remains intact, but the opinion provides general direction to Parliament on the need to amend the IAA to bring it into conformity with the constitutional division of powers.
As the dust settles on the SCC opinion, and as Parliament takes steps to amend the IAA, one of several key issues remains unsettled, if not unsettling. That issue is the extent to which, if at all, there is a role for a new, or amended, federal impact assessment law to play in controlling greenhouse gas emissions from designated projects.
Law Reform Updates
Environment Ministry Proposes to Exempt Harmful Activities from Licensing Requirements
The Ontario Ministry of the Environment, Conservation and Parks recently posted four notices on the Environmental Registry of Ontario, proposing to exempt certain waste management systems, stormwater management, and water-taking from licensing requirements.
If implemented, the specified changes would remove the up-front, detailed review by Ministry staff to assess the potential environmental impacts from the specified operations. It also means that the public participation and appeal rights under the Environmental Bill of Rights, 1993, would no longer apply.
In short – the proposed activities would no longer be subject to either government or public scrutiny before commencing operation in Ontario. Instead, the Ministry proposes to have the specified activities self-registered under the Environmental Activity and Sector Registry.
CELA is deeply concerned about the impact potential impacts of these proposals. We hosted a webinar on October 17 discussing the proposals and their impacts, and encouraging people to respond to the proposals. CELA sent a letter, endorsed by 13 environmental, conservation, and civil society organizations, to the Ministry outlining our concerns and asking them NOT to proceed with the proposed changes. More details on the proposals can be found on our action alert page.
The comment period closed on October 30th; CELA will watch for any subsequent decisions.
Ontario Electricity Support Program Expanded to More Ontarians
CELA and the Low-Income Energy Network (LIEN) are very pleased with the provincial government’s recent announcement that it is raising the income eligibility thresholds that allow people in Ontario to qualify for the Ontario Electricity Support Program (OESP).
The OESP works to reduce the cost of electricity for low-income households by applying a monthly credit to electricity bills and is a critical component of Ontario’s energy affordability framework. The new thresholds will begin on March 1, 2024. Read more here.
Land Use Planning Updates
CELA is tracking recent developments in provincial land use planning.
The provincial government recently introduced Bill 136, Greenbelt Statute Law Amendment Act, 2023. Among its schedules are plans to restore lands to the Greenbelt, for example, as protected countryside, that had been removed in December 2022. Bill 136 also plans to put the legal designation of Greenbelt lands into legislation instead of regulation. The implication is that future changes to Greenbelt boundaries would no longer be able to be done by government regulation, rather they would require a vote in the Legislature to pass a bill that changes the boundaries. Similar changes would also apply to the Oak Ridges Moraine boundary and land use designations.
Other schedules deal with the Duffins Rouge Agricultural Preserve Act, with liability protection to decision-makers, and barring of damage claims by those affected by Bill 136.
CELA will be analyzing Bill 136 in the coming weeks; we have long maintained that once land is added to the Greenbelt, the default planning rule must be that it remain designated as Greenbelt, and that any removal must be made onerous by design.
CELA is also aware of the province’s recent announcement regarding the reversal of urban boundary changes and will watch for subsequent details. Our review will be grounded in the view that proper planning and robust community engagement are critical to building climate-safe, healthy, and sustainable communities.
Principles for a Green Energy Transition
Signs of the growing climate crisis are all around us. Fortunately, signs of the huge potential for a green energy transition that can help us meet critical emission reduction targets are also growing stronger and stronger.
This critically important transition will, however, come with new demands for resources and serious environmental impacts. Understanding how to minimize these impacts as we move forward with climate solutions is important to maximize the benefits of adopting green solutions. For example, securing the metals needed to build solar panels or batteries may mean opening many new mines. Everything from where these mines are located to what lower impact alternatives exist (from different technologies to recovered materials) is something that will have to be considered carefully before proceeding.
CELA recently contributed to a set of principles published by Green Prosperity, which are meant to address how Canada can approach the fast-moving shift to green technologies in a positive way that makes the most of this transition for our climate and our communities. Read more here.
Progress Towards Tackling Environmental Racism
CELA is pleased to see that Bill C-226 passed second reading in the Senate last week. Introduced by Elizabeth May in early 2022, Bill C-226 would require the government to examine the links between racialization, socio-economic status, and environmental risk, and develop Canada’s first national strategy on environmental racism and environmental justice. Bill C-226 has now been referred to the Standing Committee on Energy, the Environment and Natural Resources for public hearings.
We are excited to welcome Rachel Arsenault to the Healthy Great Lakes program at CELA in the role of Indigenous Engagement Advisor. Rachel is gii goon (fish) clan from Wiikwemkoong Unceded First Nation on Mnidoo Mnising (Manitoulin Island).
Rachel is a fourth-year PhD student in the Faculty of Environmental Studies at York University with a focus on climate change and how this is impacting Indigenous waterways. With her current research, she is also learning how to support the further development of Indigenous water governance.
Rachel has dedicated, and will continue to dedicate, her entire career to amplifying Indigenous voices on Indigenous water governance, Indigenous water laws and building up Indigenous resilience to the environmental impacts of climate change.
Rachel was a member of CELA’s Healthy Great Lakes Advisory Committee from 2019-2022.
Matthew Suchan was recently awarded First Place for his research paper on de-extinction procedures and the current gaps in the Canadian and international legal regime for “resurrected species” in the Animal Justice Student Research Paper Contest. Matt, a third-year student of Lakehead Univeristy’s Bora Laskin Faculty of Law, is currently completing his practice placement at CELA. As a result of this award, it is anticipated that Matt may be invited to present his paper at the Canadian Animal Law Conference in 2024.
From the Foundation
This month’s feature from the Canadian Environmental Law Foundation is a 1999 report written for The Environmental Agenda for Ontario Project.
Authored by Paul Muldoon and Paul McCullough, A Sustainable Water Strategy for Ontario called for a public commitment guaranteeing the ecosystem function of water. Recommendations included, among other things, the development of:
- a comprehensive water policy for all decisions regarding water,
- a pollution prevention planning act that requires all companies that discharge wastes into water to report on toxic substances,
- a safe drinking water act that guarantees everyone in Ontario the right to clean water, and
- a groundwater management strategy that identifies important aquifers and groundwater recharge areas.
The authors posited that “decision-making over activities should also incorporate the precautionary principle, that, where an activity or substance poses a threat of harm to the environment, we should err on the side of caution; precautionary measures should be taken even in the face of scientific uncertainty.”
Webinars and Resources
LIEN Annual Conference 2023 - Turning Up the Heat on the Right to Cooling
The Low Income Energy Network (LIEN) annual conference took place on October 26, 2023. The conference focused on advocating for the right to cooling amid rising temperatures and included:
- municipal advocacy and maximum heat by-laws
- case studies of tenant protections and successful advocacy in other jurisdictions
- the case for active cooling: heat pumps vs air conditioners
- opportunities for immediate action at the municipal, provincial, and federal levels
The half-day virtual session featured experts from CELA, Efficiency Canada, Canadian Climate Institute, Canadian Health Association for Sustainability and Equity, ACORN, Hamilton Community Legal Clinics, Providence Centre, and more. Presentation slide decks are available on LIEN’s website here.
LIEN is a joint program of Advocacy Centre for Tenants Ontario (ACTO) and CELA.