Montreal, October 13, 2023 – This morning, the Supreme Court of Canada handed down its decision on the Impact Assessment Act, called into question by the Alberta government and a number of other provinces. The Court has ruled that the Act is largely unconstitutional, which represents a major setback for environmental protection in Canada; the decision does however confirm that the various levels of government must fully play their respective roles with regard to environmental protection. It is now incumbent on the Parliament of Canada to adjust its legislation to comply with this ruling and to continue assessing and overseeing all projects falling under federal jurisdiction.

For the record, in May 2022, the Alberta Court of Appeal deemed that the Impact Assessment Act encroaches on provincial jurisdiction in such a way as to render it unconstitutional and therefore invalid. However, prior to the promulgation of the Act, many large-scale projects (pipelines, mines, dams, etc.) which could have been subject to federal assessment were exempted. The Act aimed to make it easier to assess more projects and take into account their potential impacts on the health and safety of local communities and vulnerable populations.

According to the Court, the federal legislation was too broad in scope. Even for projects subject to final decision-making authority at the provincial level, the Act aimed to regulate all environmental as well as economic, social, and health aspects of the projects within its purview. The Court ruled that the assessment of a project by each level of government must be limited to those aspects that fall within the jurisdiction of this level, a decision that further compartmentalizes project oversight by governments.

According to the Centre québécois du droit de l’environnement (CQDE), which intervened before the Supreme Court in February 2023 to defend the Act, this decision represents a step backwards for environmental protection. If the environmental assessment of complex projects or activities with multiple ramifications is handled by a single level of government, the risk for the environment is even greater when the project generates impacts within the jurisdiction of the other level of government.

“The Court recognizes that all levels of government have important environmental responsibilities and invites them to cooperate, while respecting the division of jurisdictions. Faced with the scale of the climate and biodiversity crises, it’s important for both levels of government to fully carry out their responsibilities and work together to ensure the best possible oversight of all projects,” asserts David Robitaille, the lawyer who represented the CQDE before the Supreme Court.

“With this decision, the Supreme Court has snipped the actions of the various governments with a pair of judicial scissors. Yet environmental powers are interdependent and can’t be exercised in silos. This division is at odds with the reality of the situation. The CQDE expects prevailing legislation to be amended in order to align it with the ruling, so that each government can continue to play its full role in protecting the environment,” adds Marc Bishai, a lawyer with the CQDE.

Further work on legislative reform is expected to follow this announcement so as to align the Impact Assessment Act with the Constitution. The CQDE remains committed to promoting a balanced division of federal and provincial powers.