Supreme Court rules environmental impact legislation largely unconstitutional | CBC News

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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.

A building is shown in the background, with a sign that reads Supreme Court of Canada shown in the foreground.
Dissenting Justices Andromache Karakatsanis and Mahmud Jamal wrote that they believed the Impact Assessment Act was constitutional in its entirety.  (Adrian Wyld/The Canadian Press)

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. 

“Environmental protection requires action by all levels of government because each — whether by action or inaction — can affect the environment,” the dissenting opinion reads.

“This shared responsibility is ‘neither unusual nor unworkable’ in a federal state such as Canada. Rather, it reflects this Court’s flexible approach to federalism, which recognizes that overlapping powers are unavoidable and intergovernmental cooperation is essential.”

Alberta government had previously challenged act

Alberta previously filed a constitutional challenge with the Alberta Court of Appeal, and was supported by the governments of Saskatchewan and Ontario, three First Nations and the Indian Resource Council.

Various environmental and legal groups, as well as other First Nations, supported Ottawa. 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. 

Reaction from across the country came swiftly on Friday, including from Ontario Premier Doug Ford, who said his province welcomed the decision.

“The federal impact assessment process needlessly duplicated Ontario’s rigorous and world-leading environmental assessment requirements,” Ford is quoted as saying in a statement.

“At a time when it’s never been more important to build critical infrastructure, including highways, transit, and critical mineral projects, we now have the certainty we need to get shovels in the ground.”

A man and a woman sit at a table to address members of Canada's Senate.
Jason Kenney opposed Bill C-69 when he was Alberta’s premier. In this photo from 2019, Kenney is joined by Sonya Savage, the province’s energy minister at the time, in addressing the bill at the Senate of Canada Building on Parliament Hill. (Justin Tang/Canadian Press)

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

“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 Canadian Association of Petroleum Producers (CAPP), an intervener in the process, said it was pleased with the decision.

“In the spirit of the court’s call for co-operation, CAPP looks forward to collaborating with both the federal and provincial governments to ensure that projects in the national interest — those reinforcing energy security, providing lower emissions energy, and maintaining affordability to Canadians — will proceed in a timely manner,” wrote Lisa Baiton, CAPP president and CEO, in a statement.

Federal Environment Minister Steven Guilbeault and Energy and Natural Resources Minister Jonathan Wilkinson are scheduled to hold a joint virtual media availability later Friday morning to respond to the ruling. Alberta Premier Danielle Smith is also scheduled to respond later today.

More to come.

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