We recently issued a bulletin on the Alberta Court of Appeal’s decision on the Government of Alberta’s constitutional challenge to the federal Impact Assessment Act (IAA) where we included three teasers. In this blog, we delve deeper on the scope of federal review.
The majority and dissenting opinions on federal review underscore a key disagreement on the scope of project effects that are within the federal jurisdiction to review, and the scope of the IAA’s public interest determination. With a disagreement on these core issues, the two sides are unable to come together on the conclusion, and the matter is unsettled in the absence of a decision by the Supreme Court.
The majority found that the IAA requires certain mandatory factors – at section 22 – to be considered in both the impact assessment and public interest determination phases, yet several such factors are not linked to a federal head of power. For example, section 22(1)(d) requires consideration of the “need for the designated project,” yet the need for an intra-provincial designated project should fall to the provincial government to decide. Further, section 63(a) requires consideration of “the extent to which the designated project contributes to sustainability,” yet there is no federal head of power to decide whether an intra-provincial designated project is in the public interest based on whether it contributes to Canadians’ social and economic well-being.
Thus, the majority concluded that the scope of both the impact assessment and public interest determination allow the federal government to use “any effects” of an intra-provincial designated project and the IAA’s mandatory factors to regulate and stop an intra-provincial designated project. It found that such federal jurisdictional overreach is what Oldman River wished to avoid. Additionally, since all provincial governments have comprehensive impact assessment legislation, the majority concluded that the activity should remain under each province’s jurisdiction.
The dissent disagreed, holding that a consideration of broad factors in federal decision-making does not mean the public interest determination itself extends beyond effects within federal jurisdiction. According to the dissent, there is an important distinction between the impact assessment stage and the decision-making stage under the IAA. While the federal assessment considers the project as a whole, it does not allow the federal government to decide whether a project as a whole is in the public interest. Section 22 sets out broad factors to consider at the impact assessment stage, where the focus is to obtain as much information about the project as possible. At the decision-making stage, the relevant considerations are narrower and centered upon whether the effects within federal jurisdiction are in the public interest.
Leaning on MiningWatch, the dissent noted that federal constitutional authority allows an assessment of an intra-provincial project as a whole. Indeed, since environmental impacts are broad and pervasive themselves, they require “broad, multifactorial consideration.” Given the difference between the two stages, the fact that s 22(1)(a) of the IAAallows a federal assessment to consider the likely positive and negative consequences of an intra-provincial designated project does not mean that the IAA allows a federal decision-maker to decide whether an entire project is in the public interest. Rather, the assessment of all the effects of a designated project is a means of obtaining as much information about the project as possible, so as to ultimately determine whether adverse effects within federal jurisdiction are in the public interest.
The difference of opinion between the majority and minority extends to the propriety of the possible triggers for the review. The majority is against the possibility that a project with insignificant or positive effects on areas of federal jurisdiction could trigger an IAA assessment with a broad scope of factors to be considered. Although extremely fact-specific, if the trigger for an assessment were set at a certain negative threshold in an area of federal jurisdiction, perhaps the majority could stomach the broad and pervasive mandatory factors to be applied in the review.
In due course, the majority and minority’s viewpoints on both the scope of factors within federal jurisdiction to review and the scope of the public interest determination will have to be reconciled. If the Supreme Court is to consider the matter, it will be interesting to see how it assesses the interplay between these two positions to come to a final conclusion on the constitutionality of the IAA.
Our regulatory team will continue providing further analysis of the decision in the coming days.