Supreme Court of Canada


A majority of the Supreme Court of Canada (SCC), in a 5-2 opinion released earlier this month, found the federal Impact Assessment Act (the Act) to be unconstitutional in part and inconsistent with shared federal and provincial jurisdiction over the environment. The SCC’s conclusions in Reference re Impact Assessment Act (the Decision) are expected to have significant implications for major projects across Canada, including mines, pipelines, and other interprovincial infrastructure and activities. This bulletin briefly summarizes the key findings of the SCC and our anticipated next steps for Canada’s impact assessment and approval regime. Impact Assessment Act The Act, which received Royal Assent in 2019, seeks to provide an information gathering and regulatory scheme for certain projects and activities carried out in Canada or on federal lands so as to prevent significant environmental, health, social, or economic effects. The Act also regulates certain federal “aspects” of projects, including in respect of: Indigenous Peoples; federal lands; fish and fish habitat; aquatic species; migratory birds; changes in a province other than the one in which the activity or project is occurring; and changes in the environment outside of Canada. The Act contains two assessment components for gathering information as part of the regulatory scheme. The first portion, provided in sections 81 to 91 of the Act, deals with projects carried out or financed by federal authorities on federal lands or outside Canada and requires determining whether projects are likely to cause significant adverse environmental impacts. The second portion, which is provided in much of the rest of the Act and regulations, deals with “designated projects”, defined as physical activities carried out in Canada or on federal lands and are designated by regulations. This portion is aimed at mitigating or preventing potential adverse environmental, health, social and economic impacts arising from the activities. Overview of Opinion The opinion of…