Liberals will amend Impact Assessment Act after Supreme Court found it unconstitutional
Despite a ruling from the Supreme Court that concluded the law is largely unconstitutional, Environment Minister Steven Guilbeault says the federal government is sticking by its controversial Impact Assessment Act (IAA).
Guilbeault said Thursday the Liberals will not repeal the legislation — as some Conservative MPs have demanded — and will instead make changes to “align” the law with the top court’s ruling.
“The Supreme Court of Canada’s opinion on the Impact Assessment Act means we now have clarity to better align the IAA to areas of federal jurisdiction while continuing to protect the environment,” Guilbeault said in a media statement.
On Oct. 13, the Supreme Court determined that sections of the federal Impact Assessment Act are unconstitutional. Some parts of the law were found to be within federal jurisdiction, but the court said other sections were too broad.
Guilbeault offered no timeline for tabling and passing amendments addressing the court’s concerns. On Wednesday, his office issued interim guidance on the law for project proponents and the federal Impact Assessment Agency of Canada (IAAC) until the legislation is revised.
According to a government guidance document, the environment minister’s discretionary authority to conduct assessments of projects has been paused. Those powers will resume only once the amendments take effect, says the guidance document.
Current project assessments will continue, the document says, and the IAAC will provide opinions on whether proposed projects fall under federal jurisdiction. The agency also can determine “whether a full impact assessment” of a project “is warranted,” the guidance document says.
The agency confirms it will also continue its work on Ring of Fire projects in Ontario and offshore wind turbine projects in Nova Scotia and Newfoundland and Labrador, saying the work will help the agency better understand the impacts of these proposed developments.
A controversial law
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 processes 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.
