Skip to content

Brought to you by

Dentons logo in black and white

Canada Regulatory Review

The latest information and developments on regulatory law across Canada.

open menu close menu

Canada Regulatory Review

  • Home
  • About Us
  • Dentons COVID-19 hub

Reference re Impact Assessment Act: Canada’s Federal Impact Assessment Regime held to be Unconstitutional by the Alberta Court of Appeal

By Dina Awad and Kate Wiltse
May 25, 2022
  • Administrative Law
  • Energy
  • Environmental
  • Regulatory
Share on Facebook Share on Twitter Share via email Share on LinkedIn

The Alberta Court of Appeal recently released its advisory opinion in the Reference re Impact Assessment Act, with a 4-1 majority finding the federal Impact Assessment Act and the Physical Activities Regulations to be unconstitutional. A majority of the Court found these to be a federal overreach into areas of exclusive provincial jurisdiction by subjecting intra-provincial activities and resource development to federal oversight and approval.

A new regime

The Impact Assessment Act (the “IAA”) is the most recent piece of Canada’s comprehensive federal environmental assessment regime. Replacing the framework in the Canadian Environmental Assessment Act, 2012 in 2019, the IAA provides a federal regime for assessing the impacts of projects designated by the federal government, and establishes a federal decision-making process for these designated activities. This regime includes a required public interest determination by the federal executive before a project is able to proceed. The list of designated activities, as set out in the Physical Activities Regulations (the “Regulations”), includes certain mining projects, hydroelectric projects, highways, dams, waste treatment facilities, oil sands facilities, and oil and gas extraction, processing and storage facilities above the prescribed production-based thresholds. 

At the heart of the issue decided upon by the ABCA is the fact that some of the designated projects under the IAA are often located entirely within the borders of a province, stirring up questions about the scope of the IAA’s power and its impact on provincial jurisdiction.   

A ‘legislative creep’

The majority of the ABCA found that the IAA and the Regulations create a “…federal impact assessment and regulatory regime that subjects all activities designated by the federal executive to an assessment of all their effects and federal oversight and approval.” When applied to intra-provincial designated projects, this purpose does not fall under any heads of power assigned to Parliament but rather impermissibly intrudes into heads of power assigned to provincial Legislatures by the Constitution Act, 1867.

The majority emphasized that the IAA is a classic example of a ‘legislative creep’, as the legislative scheme gives the federal government “an effective veto over every intra-provincial designated projects in this country.” Through the requirement under the IAA for a positive federal public interest determination and the use of prohibitions, fines and injunctions, the reality is no intra-provincial designated project is able to proceed without the express approval of the federal executive.

In the single dissenting opinion, Greckol, JA found the IAA to be a valid, constitutional exercise of federal jurisdiction. Its goal is to facilitate planning, information gathering, and decision-making cooperatively with other jurisdictions while regulating effects within federal jurisdiction and determining whether such effects are within the public interest. 

Conclusion

Environmental impact assessments play a vital role in achieving sustainable economic development. While the ABCA’s advisory opinion does not currently have any legal impact on the IAA, it has the potential to significantly effect the regulation of projects in Canada, and fundamentally change the scope of federal decision-making over intra-provincial projects not otherwise subject to federal regulation.

As Canada has already announced its intention to appeal the ABCA’s decision to the Supreme Court of Canada, the constitutionality of the IAA and the interaction of federal and provincial powers in the regulation of resource development in Canada is not yet settled. 

Further analysis of the decision by our Energy Innovation and Transition team is available here.

Share on Facebook Share on Twitter Share via email Share on LinkedIn
Subscribe and stay updated
Receive our latest blog posts by email.
Stay in Touch
Dina Awad

About Dina Awad

Dina Awad is a partner in our Litigation and Dispute Resolution group. Her practice encompasses a variety of complex regulatory and commercial matters with a focus on advocacy, risk analysis, and compliance advice in matters including environmental law, health law, commercial disputes, extraordinary remedies, and franchise law.

All posts Full bio

Kate Wiltse

About Kate Wiltse

Kate Wiltse is an associate in Dentons’ Regulatory group. Based in Calgary, her practices include environmental and energy regulation, environmental litigation and transactional work and renewable energy.

All posts Full bio

RELATED POSTS

  • Regulatory

What’s in a name? Why your business needs to know about product classification under the Food and Drugs Act

By Yulia Konarski | November 5, 2020
  • Climate Change
  • Environmental
  • Regulatory

Bill C-12: Can the federal government get Canada to net-zero emissions by 2050?

By Dina Awad | November 24, 2020
  • Consumer Products
  • ESG
  • Foreign Investment Review
  • International Trade
  • Regulatory

More Dentons’ Pick of Canadian Regulatory Trends to Watch in 2023

By Simon Kupi | March 1, 2023

About Dentons

Across over 80 countries, Dentons helps you grow, protect, operate and finance your organization by providing uniquely global and deeply local legal solutions. Polycentric, purpose-driven and committed to inclusion, diversity, equity and sustainability, we focus on what matters most to you. www.dentons.com

Grow, Protect, Operate, Finance. Dentons, the law firm of the future is here. Copyright 2023 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. Please see dentons.com for Legal notices.

Categories

  • Administrative Law
  • Anti-Corruption
  • Anti-Money Laundering
  • Aviation
  • Broadcasting
  • Cannabis
  • Class Action Defense
  • Climate Change
  • Climate Change
  • Commercial Litigation
  • Communications
  • Competition
  • Consumer Products
  • COVID-19
  • Data
  • Drones
  • Energy
  • Environmental
  • ESG
  • Event
  • Expropriation
  • Financial
  • FinTech
  • Foreign Investment Review
  • Franchising and Distribution
  • Global Mobility
  • Government Affairs
  • Government Investigations
  • Health
  • Human Rights
  • Immigration
  • Indigenous
  • International Trade
  • Judicial Review
  • Litigation and Dispute Resolution
  • Marketing/Advertising
  • Mergers & Acquisitions
  • Mining
  • Modern Slavery
  • Municipal
  • National Security
  • Privacy
  • Privacy and Cybersecurity
  • Product Regulation
  • Professional Liability
  • Public Procurement
  • Regulatory
  • Sanctions
  • Securities
  • Smart Cities
  • Supply chain
  • Tax
  • Technology
  • Technology, Media and Communications
  • Trade and Economic Sanctions
  • Trade, WTO and Customs
  • Transportation
  • White Collar Crime
Dentons logo in black and white

© 2023 Dentons

  • Legal notices
  • Privacy policy
  • Terms of use
  • Cookies on this site