Supreme Court rules environmental impact legislation largely unconstitutional

Canada’s top court has delivered a highly anticipated judgment, writing in a majority opinion that Ottawa’s Impact Assessment Act (IAA) is largely unconstitutional.

The IAA, previously known as Bill C-69, allows federal regulators to consider the potential environmental and social impacts of various resource and infrastructure projects. It was enacted in 2019.

The IAA has long been controversial among conservative politicians in Alberta, including former premier Jason Kenney, who frequently referred to it as the “no more pipelines act.”

Writing for the majority in a 5-2 decision, Chief Justice of the Supreme Court of Canada Richard Wagner said the process set forth in Sections 81 to 91 of the IAA were constitutional and could be separated out.

Those sections involve projects carried out or financed by federal authorities on federal lands, or outside Canada, and therefore fall under federal jurisdiction. Those provisions were not challenged as unconstitutional.

However, Wagner wrote that the balance of the scheme, involving “designated projects,” was unconstitutional.

Under the IAA, designated projects are those projects that are set out in the regulations or are subject to a ministerial order.

“In my view, Parliament has plainly overstepped its constitutional competence in enacting this designated projects scheme,” Wagner wrote.

Wagner wrote that environmental protection remains one of today’s most pressing challenges, and parliament has the power to enact a scheme of environmental assessment to meet this challenge.

“But Parliament also has the duty to act within the enduring division of powers framework laid out in the Constitution,” he wrote.

Dissenting Justices Andromache Karakatsanis and Mahmud Jamal wrote that they believed the act was constitutional in its entirety.

Alberta government had previously challenged act

Alberta previously filed a constitutional challenge with the Alberta Court of Appeal, and in a 4-1 decision the court called the law an “existential threat” when it came to Canada’s Constitution.

The federal government appealed that non-binding opinion, and the Supreme Court held hearings on the act in March. Today’s decision was keenly awaited by legal experts, who recognized its importance in providing clarity to an area of law that has long been under debate.

“The words of the court, the opinion of the court, really will define the landscape for federal impact assessment and environmental assessment for decades to come,” David Wright, an associate professor at the Faculty of Law at the University of Calgary, previously told CBC News.

The ruling was part of a “reference case,” which involved the provincial and federal governments asking courts for advisory opinions.