Intervening to uphold the Impact Assessment Act in Canada’s highest Court

On March 21-22, the Supreme Court of Canada (SCC) will hear arguments over one of the country’s most fundamental federal environmental laws – the Impact Assessment Act. West Coast Environmental Law is intervening in the case on behalf of ourselves and Nature Canada, alongside a number of other intervenors who agree that the Act must be upheld.

The Impact Assessment Act (IAA) is our main tool for assessing the environmental and social impacts of major projects or proposals, like mines, pipelines and dams. And it’s being challenged by the Alberta government, which in 2019 asked the Alberta Court of Appeal to rule on whether the law respects the constitutional division of powers between Canada and the provinces.

In May 2022, the Alberta Court of Appeal held that the Impact Assessment Act was outside of the federal government’s constitutional authority. This decision was by no means surprising, since that same Court had made a similar finding that the federal Greenhouse Gas Pollution Pricing Act was unconstitutional – in contrast to decisions upholding the carbon tax law in Ontario and Saskatchewan Appeal Courts.

When that case arrived at the Supreme Court of Canada, the majority of Justices ruled that the federal carbon pricing law is constitutional, affirming that climate change is a matter of “national concern.” While the Impact Assessment Act reference case differs from the carbon pricing case in many ways, we’re looking forward to a similar outcome to uphold this important federal law.  

Why does this case matter?

This closely-watched case will confirm the extent to which federal authorities can inform themselves about the potential impacts, risks and benefits of projects that might harm the environment, climate or human well-being, or impact Indigenous rights.

Impact assessment is a key tool that allows us to “look before we leap” when it comes to industrial development, resource extraction, large infrastructure projects and other proposals. It gives the public a chance to have a say in projects and decisions that affect our communities, and provides an important process that can lead to the free, prior and informed consent of Indigenous peoples.

In our view, the Impact Assessment Act is reasonable, justified and falls squarely within federal jurisdiction. And the case law backs up this position.

This isn’t the first time the Supreme Court of Canada has ruled on environmental assessment issues – in 1992, a majority of the Supreme Court upheld Canada’s earliest environmental assessment process as an “integral component of sound decision-making.”

The Impact Assessment Act looks at a wide range of impacts, including all positive and negative environmental, social, economic and health effects, as well as impacts on Indigenous rights. That is simply a smart way to approach environmental decision-making, not jurisdictional overreach, as the Alberta Court of Appeal claims.

Since it was passed in 2019, opponents of the IAA have sowed fear that the so-called “no pipelines bill” would stop all development and have negative impacts on the economy. But that is just not the case.

In reality, federal impact assessment has led to the rejection of less than a handful of development projects over three decades – even when those projects pose massive environmental risk. Plus, the current Act is already reviewing far fewer projects than its predecessors (the Canadian Environmental Assessment Act (CEAA) and Canadian Environmental Assessment Act, 2012) – only assessing about a dozen projects a year, compared to thousands of proposals reviewed annually under CEAA.

Canadians look to their governments and elected leaders to protect them from environmental harm. As we confront climate change and the biodiversity crisis, and move toward reconciliation, we must look even more closely at the risks major projects may impose – rather than looking away.

Top photo: Michel Rathwell via Wikimedia Commons

Anna Johnston, Staff Lawyer