Following the Supreme Court of Canada’s finding that the federal Impact Assessment Act (IAA) represents constitutional overreach, the Liberal government has announced interim guidance to create an “orderly and clear path forward” until the legislation can be revised.
The interim guidance from Ottawa suggests that while the Impact Assessment Agency of Canada will continue to evaluate all projects in the queue since 2019, and provide an opinion on whether they impact areas of federal jurisdiction, discretionary authorities at the minister level to designate projects will be paused.
“The Supreme Court of Canada’s opinion on impact assessment means we now have clarity to better align the IAA to areas of federal jurisdiction while continuing to protect the environment,” announced Steven Guilbeault, Minister of Environment and Climate Change, in a statement. “The Government of Canada is doing its part and looks to the provincial governments to do theirs, so we can work together to protect the environment and advance sustainable development in Canada in the spirit of cooperative federalism.”
The guidance comes after calls for clarity from the businesses, provinces, Indigenous groups and stakeholders involved in the development of 23 major projects currently in the middle of the IAA process. Many were unsure how to proceed after the Supreme Court of Canada backed Alberta’s position that federal regulators overreached in their efforts to gauge the effects of major construction projects through the IAA, formerly known as Bill C-69.
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In its October 13 ruling, Canada’s highest court found that while federal officials can enact environmental assessment processes, “Parliament also has the duty to act within the enduring division of powers framework laid out in the Constitution,” stated part of the 5-2 majority ruling.
The court added that the IAA’s designated projects section, which outlines the scheme for how the federal government chooses projects for impact assessments, is too broad and could lead to federal intervention in areas outside its jurisdiction.
“The scheme treats all designated projects in the same way, regardless of whether Parliament is vested with broad jurisdiction over the activity itself or narrower jurisdiction over the activity’s impacts on federal heads of power,” the top court ruling continued.
The interim guidance announced by the IAA’s agency also notes that consideration of any new designation requests will only resume once amended legislation is in force.
Following the Supreme Court of Canada’s decision, Ontario’s Attorney General has suggested that he will take immediate legal action against the IAA to ensure no delays occur for infrastructure projects.
Alberta’s Environment Minister, Rebecca Shultz, told reporters that the federal government’s interim guidance for the IAA only serves to create further confusion for those already in the process.