The Impact Assessment Act and Reconciliation

BACKGROUND

In 2019, Parliament passed the Impact Assessment Act, SC 2019, c. 28, s. 1(the “Act”), intended to create more protections for the environment, restore public trust and advance reconciliation efforts with Indigenous peoples. The Act replaced the Canadian Environmental Assessment Act, SC 2012, c. 19, s. 52(“CEAA”),which was intended to expedite the approval of major resource development projects and resulted in many legal challenges.

Many Indigenous peoples supported the Act as it included provisions that required Indigenous consultation, environmental impact assessments, integrated Indigenous knowledge in decision-making processes, and addressed the climate crisis; none of which were addressed in the CEAA.

Under the Act, the Physical Activities Regulations (the “Regulations”) was created to define “designated projects” that would trigger an environmental assessment.  Where a project is deemed to cause adverse effects or public concern, the Minister is authorized to classify it as a “designated project.” Out of concern that the “designated projects” and Ministerial powers were too restrictive, the Province of Alberta launched a judicial action to have the court make the determination on whether the Act and the Regulations were unconstitutional in whole, or in part.

COURT OF APPEAL DECISION

The Alberta Court of Appeal found that both the Act and the Regulations were unconstitutional in their entirety because the Act allowed the federal government to stop a designated project where there were any significant adverse effects on the environment but failed to define what “significant” meant in that context.  The court determined this allowed federal powers to encroach on intra-provincial jurisdiction by giving the federal government unilateral decision-making power over the designated projects.

THE SUPREME COURT DECISION

In a 5-2 decision, the majority of the Supreme Court of Canada determined that the Act was unconstitutional in part, especially the “designated projects” portion, which was outside the scope of Parliament’s jurisdiction.

The Supreme Court of Canada determined that the Act and Regulations was not directed at any effects within federal jurisdiction. For example, the court noted that the definition of environment included “every component of the Earth,” representing an unlimited range of possible effects on land, water, air, all layers of the atmosphere, organic and inorganic living organisms and the interacting natural systems of those elements. Some of the other overbroad effects of the Act outlined by the Court included the fact that the Act would:

• prohibit any work that would cause a change to migratory birds,
• quash the advancement of a project if there was any negative public interest determination; and
• prohibit any changes to Indigenous lands and resources for cultural purposes in the carrying out of a project.

IMPLICATIONS

The decision represents a loss for environmental protections, the recognition of Indigenous knowledge and traditions in major projects, and adverse effects of climate change. Although, the Act was completely protective of the environment and aimed at preventing further climate crisis, it was simply too ambitious for some. If Canada is to meet its goal of net-zero emissions by 2050, all provinces must be on board in helping achieve that goal. The Act is still in force, but it remains to be seen what will come next, and whether Canada will implement the provisions of the United Nations Declaration on the Rights of Indigenous Peoples Act to strengthen any new proposed legislation and achieve its goals of advancing reconciliation and resisting the climate crisis.

This post was co-authored by Nicola Virk, and articling student, Laura Beaudry.

Want more useful updates on recent decisions? Contact Nicola Virk at nvirk@harpergrey.com or anyone else from our team listed on the Authors page.