Question Period Note: Alberta Reference Litigation Regarding the Impact Assessment Act

Alberta Reference Litigation Regarding the Impact Assessment Act

• On May 10, 2022, the Alberta Court of Appeal issued its opinion on constitutional questions related to the federal impact assessment regime.
• The Impact Assessment Act delivered on an important promise we made to Canadians to reform a flawed process from the previous government.
• This Act put in place better rules for major projects that restore trust, protect the environment, advance reconciliation, and ensure good projects can move forward in a timely way so we can grow our economy and create good jobs.
• The Government of Canada worked extensively with legal experts and provincial and territorial governments to develop the Impact Assessment Act.
• We are confident the Impact Assessment Act is constitutional and we will appeal this decision.
• It is important to note that the decision of the Court is advisory in nature and the Impact Assessment Act and its regulations remain in force.

Impact Assessment Act
• The Impact Assessment Act (the Act) came into force on August 28, 2019, and repealed the Canadian Environmental Assessment Act, 2012.
• The Act is a planning and decision-making tool used to assess: positive and negative environmental, economic, health, and social effects of proposed projects, and impacts to Indigenous groups and rights of Indigenous peoples. It is designed to protect the components of the environment, and the health, social, and economic conditions that are within federal jurisdiction.
Constitutional Reference Question in Alberta Court of Appeal
• On January 17, 2020, the Attorney General of Alberta filled their factum in the Alberta Court of Appeal alleging that the Act and the Physical Activities Regulations (Project List) regulate matters beyond the constitutional authority of Parliament under the Constitution Act, 1867.
• Among others, the Attorney General of Ontario and Saskatchewan were granted leave to act as interveners and made submissions to the Court in support of Alberta’s position.
• On May 10, 2022, the Alberta Court of Appeal issued its opinion on Alberta’s reference question regarding the constitutionality of the Impact Assessment Act and the Physical Activities Regulations.
• The Court concluded that the federal impact assessment regime intrude on provincial jurisdiction.
• The Court’s opinion is advisory in nature. As such, the Act and its regulations remain in force and the Agency will continue to implement the impact assessment process in line with the current provisions of the Act.
• Both Alberta and Canada, as parties to the reference, have a right of appeal to the Supreme Court of Canada within 30 days of the issuance of the Alberta Court of Appeal’s opinion. The IAA and its regulations will remain in force during any process of appeal.
Canada’s Position
• Canada is taking the position that both the Act and the Physical Activities Regulations (Project List), which describes the projects subject to the Act, are constitutional, within the full jurisdiction of Parliament, and that they respect provincial jurisdiction.
• The Government of Canada worked with provincial and territorial governments to ensure that their views were sought and considered on legislative and regulatory reform. Provinces and territories had regular calls and meetings with federal departments to provide comment on legislative and regulatory proposals. The Government’s goal was to ensure collaborative environmental assessment practices that respect jurisdictional authorities.

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