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Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII)

Alberta

,

Canada

The majority of the Alberta Court of Appeal ruled that the federal Impact Assessment Act, SC 2019, c 28, s 1, was unconstitutional for being ultra vires Parliament’s legislative authority pursuant to s. 91 of the Constitution Act, 1867Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII)

Federal Impact Assessment Act is unconstitutional, Alberta Court of Appeal rules

The Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII) was a constitutional reference submitted by the Government of Alberta seeking an opinion regarding the constitutionality of the federal Impact Assessment Act, SC 2019, c 28, s 1 (“IAA”) and its Physical Activities Regulations (“Regulations”).

The IAA and its Regulations were introduced by the federal government, replacing the former 2012 Canadian Environmental Assessment Act. The IAA’s purpose was to establish the terms and timing upon which a resource project or activity would be subject to a federal environmental impact assessment. In essence, the legislation allowed the Minister to designate certain resource projects or activities to be automatically prohibited where they “may cause effects within federal jurisdiction” under s. 7 of the IAA. The only exceptions to this prohibition were 1) where the Agency determined that the project did not require an impact assessment or 2) where the proponent complied with conditions following an impact assessment.

The crucial issue before the Court was whether the definition of “effects within federal jurisdiction” allowed the legislation to fall without federal jurisdiction. “Effects within federal jurisdiction” had been defined as various changes or impacts to the environment, health, social or economic matters from or by a designated project, which the federal government claimed to anchor its jurisdiction over intra-provincial designated projects that did not otherwise require a federal permit.

Majority rules that subject matter is ultra vires

As noted by the Court, the “environment” does not fall under either the Federal or provincial jurisdiction under the Constitution and may thus have “some provincial aspects and some federal aspects”. Therefore, in order to justify federal oversight, the Canadian government must establish some connection to a federal head of power.

In this case, the majority of the Court rejected the federal government’s argument that the legislative regime fell within the federal jurisdiction. The majority concluded:

“The subject matter of the IAA, when applied to intra-provincial designated projects, falls within several heads of provincial power. The federal jurisdictional overreach is manifest. Despite the blending of federal points of interest with the parts of the IAA challenged here, the IAA constitutes a profound invasion into provincial legislative jurisdiction and provincial proprietary rights. Parliament’s claimed power to regulate all environmental and other effects of intra-provincial designated projects improperly intrudes into industrial activity, resource development, local works and undertakings and other matters within provincial jurisdiction. […]
Where natural resources are involved, it is each province that is concerned with the sustainable development of its natural resources, not the federal government. It is the province that owns those natural resources, not the federal government. And it is the province and its people who lose if those natural resources cannot be developed, not the federal government. The federal government does not have the constitutional right to veto an intra-provincial designated project based on its view of the public interest. Nor does the federal government have the constitutional right to appropriate the birthright and economic future of the citizens of a province.”

The Court further noted that while there exist legitimate concerns about the environment and climate change that are shared by all Canadians and provincial governments as well as the federal government, such concerns do not justify overriding the existing form of federalism and the division of powers.

Accordingly, the majority concluded that the IAA and its Regulations were unconstitutional.

June 30, 2022
Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII)
Author: Sara Collin