Canada Faces Constitutional Defeat Over the Impact Assessment Act
Canada’s appellate courts have determined the Impact Assessment Act is unconstitutional for a third time, leaving the federal government to decide whether to launch another appeal. The legislation, enacted in 2019, faces mounting legal defeats that began with the Alberta Court of Appeal in 2022 and continued through a Supreme Court of Canada ruling in 2023. Parliament overstepped its constitutional competence by creating a designated projects scheme that infringes on provincial rights, according to the courts.
The federal government faces a choice between appealing the latest October decision from the Alberta Court of Appeal or abandoning the legal battle to focus on structural reforms. The Carney government has taken baby steps by removing in-situ oil sands extraction facilities and fossil fuel-fired power generating facilities from the designated project list, alongside entering into co-operation agreements with the provinces.
Federal Overreach and the Designated Project List
The core constitutional flaw stems from the federal government using its discretionary power to regulate projects that fall under provincial jurisdiction. Federal environmental assessment legislation began in 1973 with the Environmental Assessment and Review Process, which focused on projects requiring federal permits, federal land use, or federal funding. By 2010, approximately 6,000 assessments clogged the system annually, prompting the introduction of the Canadian Environmental Assessment Act, 2012, to screen out routine projects.
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While the 2012 legislation successfully narrowed assessments, its designated project list created an expectation that every major project required federal review. The subsequent Impact Assessment Act supercharged this expansion by allowing the federal government to assess any project regardless of provincial boundaries. Martin Ignasiak notes that oil and gas projects, mining projects and renewable projects are matters of provincial jurisdiction and should be removed from the federal list immediately.
Jurisdiction Over Indigenous Rights and Provincial Powers
The Alberta Court of Appeal and the Supreme Court of Canada both ruled that federal oversight regarding Indigenous populations cannot override the constitutional division of powers. Paragraphs (e) and (f) in the definition of “adverse effects within federal jurisdiction” allow for unspecified applications that intrude on provincial authority over traditional land use and treaty rights. First Nations are not enclaves for federal power in a sea of provincial jurisdiction, as the court emphasized in its recent ruling.
Provincial governments hold a constitutional obligation to consult and accommodate Indigenous interests when permitting projects. When a province fails in this duty, the courts intervene rather than the federal government stepping in to assert unauthorized jurisdiction over provincially regulated mines or infrastructure.
Frequently Asked Questions About the Impact Assessment Act
What did the Supreme Court of Canada rule regarding the Impact Assessment Act?
The Supreme Court of Canada ruled that “Parliament has plainly overstepped its constitutional competence in enacting this designated projects scheme.” The court stated that federal public interest decisions must focus strictly on adverse federal effects rather than evaluating the merits of a project as a whole.
What are the legal implications of the October Alberta Court of Appeal decision?
The Alberta Court of Appeal confirmed that despite amendments introduced in 2024, the Impact Assessment Act remains a substantial infringement on provincial rights.