Supreme court ruling on environmental legislation will pause certain projects that need to go through an impact assessment
The Canadian government has released interim guidance on a key environmental legislation it is amending. It follows the ruling of the Supreme Court of Canada that the Impact Assessment Act (IAA) was largely unconstitutional.
According to a Reuters report, the IAA is a federal law that assesses how projects, such as coal mines, could impact the environment. The Supreme Court said the scope of the IAA was too broad as the federal government included projects that would typically fall under provincial jurisdiction.
"As we work to make targeted amendments to the IAA to bring it in line with the Supreme Court of Canada's opinion, today's interim guidance aims to provide clarity to investors and businesses in the immediate term," said federal Natural Resources Minister Jonathan Wilkinson in a statement.
As a result, the Impact Assessment Agency of Canada (IAAC) will assess 23 projects in terms of their impact on areas of federal jurisdiction. In the meantime, consultations with Indigenous communities will continue and project proponents can continue sharing information to advance their assessments, the agency said. However, the designation of certain projects that need to go through an impact assessment will be paused.
According to the agency, the assessments of certain projects will continue, including the Ring of Fire mineral deposits in northern Ontario and offshore wind projects in Nova Scotia and Newfoundland and Labrador, because they are only seeking to understand impacts.
Deemed partly unconstitutional
According to the Case in Brief, “the federal impact assessment scheme is unconstitutional in part.” Chief Justice Wagner said the process set by sections 81 to 91 is not challenged as it is constitutional. However, the balance of the scheme in terms of designating projects is considered unconstitutional for two overarching reasons:
- it is not directed at regulating “effects within federal jurisdiction” as defined in the Act, because these effects do not drive the scheme’s decision-making functions
- the defined term “effects within federal jurisdiction” does not align with federal legislative jurisdiction
“Environmental protection remains one of today’s most pressing challenges. To meet this challenge, Parliament has the power to enact a scheme of environmental assessment. Parliament also has the duty, however, to act within the enduring division of powers framework laid out in the Constitution,” said the Chief Justice. “It is open to Parliament and the provincial legislatures to exercise their respective powers over the environment harmoniously, in the spirit of cooperative federalism,” adding, “both levels of government can exercise leadership in environmental protection and ensure the continued health of our shared environment.”
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