In a much-anticipated judgment, Canada’s Supreme Court has ruled that Ottawa’s Impact Assessment Act (IAA), formerly known as Bill C-69, contains several unconstitutional provisions. The IAA, which was enacted in 2019, has long been a subject of controversy, particularly among conservative politicians in Alberta, who have referred to it as the “No More Pipelines Act.”
A Major Constitutional Challenge: The Supreme Court’s decision emerged as part of a “reference case,” a legal procedure in which provincial and federal governments seek advisory opinions from the courts. While the ruling does not immediately remove the law from the books, it holds significant weight and is traditionally treated as binding by the government, according to David Wright, an associate professor in the Faculty of Law at the University of Calgary.
The majority opinion, authored by Chief Justice Richard Wagner in a 5-2 decision, examined the constitutionality of various sections within the IAA, specifically Sections 81 to 91. These sections pertain to projects conducted or financed by federal authorities on federal lands or outside of Canada, falling under federal jurisdiction. Notably, these sections were found to be constitutional and remained unchallenged.
Unconstitutional Designated Projects Scheme: The crux of the Supreme Court’s decision revolved around the IAA’s “designated projects.” Under this scheme, designated projects are those outlined in the regulations or subject to ministerial orders. Chief Justice Wagner asserted that Parliament had exceeded its constitutional authority by implementing this designated projects scheme.
“In my view, Parliament has overstepped its constitutional competence in enacting this designated projects scheme,” Wagner wrote in the majority opinion.
Implications for Resource and Infrastructure Projects: This landmark ruling holds significant implications for the 23 projects currently within the federal impact assessment process under the IAA, as reported by the Impact Assessment Agency of Canada. Eight of these projects have received final decisions from the minister or the agency, allowing them to progress.
While the decision does not strike down the entire IAA, it compels the federal government to swiftly draft amendments to bring the law into compliance with the Constitution. The court’s verdict serves as a critical point in the ongoing debate surrounding resource and infrastructure projects in Canada, particularly concerning their environmental and social impacts.
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