The recent opinion by the Supreme Court of Canada (SCC) regarding the Federal Impact Assessment Act (IAA) previously known as the Bill C-69 (called by critics the “no pipeline legislation”) has attracted many comments and news coverage. The opinion essentially held that the IAA went too far and portions of the IAA were unconstitutional. Note: for background, see our May 24, 2022, blog, Impact Assessment Act Headed for the Supreme Court of Canada?
What is the Impact Assessment Act?
In a blog by Torys, they provide an overview of the IAA that was given royal assent in 2019: “The IAA sets out a complex scheme for information gathering, approving, and regulating physical activities or projects that may have environmental or health, social or economic effects on matters within federal jurisdiction. This includes a wide ambit of matters, including airports and interprovincial works and undertakings such as interprovincial railways and pipelines. However, the IAA also regulates federal ‘aspect’ of projects, like mines, that are primarily under provincial jurisdiction. Those aspects include Indigenous peoples and federal lands, fish, aquatic species, migratory birds, as well as interprovincial or international environmental effects.”
They go on to state that the heart of the IAA is a “scheme that can be referred to as ‘designation, prohibition and assessment’. Projects that are designated as falling within the scheme are prohibited from proceeding until the assessment is complete, and the relevant federal decision-maker has approved it.”
Opposition to the Impact Assessment Act
Praised by some but also widely opposed by others, the IAA received a lot of attention. The Provinces of Alberta, Saskatchewan, and Ontario expressed their opposition to the IAA. Three First Nations Groups and the Indian Reserve Council also opposed it. However, other First Nations Groups and some legal groups supported the legislation.
Opinions on Overturning the Impact Assessment Act
Setting the stage for the SCC ruling was the Alberta Court of Appeal ruling in May 2022 that the federal government’s environmental impact law was unconstitutional.
Below, we provide several quotes from those commenting on the SCC opinion.
Alberta premier Danielle Smith and Justice Minister Mickey Amery released a statement saying in part, “This legislation is already responsible for the loss of tens of billions in investment as well as thousands of jobs across many provinces and economic sectors. The ruling today represents an opportunity for all provinces to stop that bleeding and begin the process of re-attracting those investments and jobs into our economies.”
Justice Minister and Attorney General Bronwyn Eyre said, “This decision is nothing short of a constitutional tipping point and reasserts provinces’ rights and primary jurisdiction over natural resources, the environment and power generation. It should also force the federal government to reassess other areas of overreach, including capping oil and gas production and electrical generation. The IAA has stalled everything from Canadian highway and mine projects to LNG facilities and pipelines. It has thwarted investment, competitiveness and productivity across the country. This major decision will correct course.”
Premier Doug Ford said, “We welcome today’s decision that confirms what we’ve been saying all along. The federal impact assessment process needlessly duplicated Ontario’s rigorous and world-leading environmental assessment requirements.”
“The SCC’s decision is a non-binding advisory opinion, leaving the IAA in force. In a press conference, the federal Ministers of Environment and Climate Change and of Energy and Natural Resources confirmed that the federal government accepts the SCC’s findings, and that (i) the IAA is already administered in a manner that is consistent with the SCC’s decision (suggesting that the decision will have no practical impact in relation to ongoing assessments); and (ii) instead of wholesale changes to the IAA, ‘surgical’ legislative amendments will be drafted.”

The Supreme Court of Canada issued their opinion regarding the Federal Impact Assessment Act (Photo credit: Photo by Tom Carnegie on Unsplash).
Mike Martens, President of Independent Contractors and Businesses Association Alberta said, “We are thrilled with this decision and what it means for Canadian workers, their families, and everyone who stands to benefit from Canada’s responsibly produced natural resources during a global energy crisis. The ill-advised and heavy-handed Impact Assessment Act damaged Canada’s economy, prosperity, and the families that depended on it, driving away investment and creating uncertainty. It has been tossed in the trash can, where it belongs.”
Andrew Berstein, Partner at Torys said, “I’m not surprised. I think there was a feeling among many constitutional lawyers that the federal government had gone a little too far in terms of regulating things that are predominantly provincial.”
“By way of a 5–2 majority, the Supreme Court opined that the portion of the IAA addressing the assessment of ‘designated projects’ is outside the federal Parliament’s competence and is thus unconstitutional.”
“The majority decision sends a strong message that while environmental protection remains a core Canadian value, it must be pursued in a way that respects the constitutional division of powers.”
“The Court’s decision makes it clear that Canada cannot simply regulate mines, power plants, highways or other major infrastructure because they are large-scale industrial projects with environmental, social or health effects. Canada must instead remain laser focused on regulating federal matters.”
“We call on the Government of Canada and Parliament to respond to the Supreme Court of Canada opinion expeditiously to shorten the period of investment uncertainty. Prolonged uncertainty is a roadblock to building the mines and infrastructure we urgently need to achieve our climate change, supply chain security and critical minerals goals.”
While most of the comments were in favour of the ruling, the Canadian Environmental Law Association had a different take: “As the dust settles on the SCC opinion, and as Parliament takes steps to amend the IAA, one of several key issues remains unsettled, if not unsettling. That issue is the extent to which, if at all, there is a role for a new, or amended, federal impact assessment law to play in controlling GHGE (greenhouse gas emissions) from designated projects.”
Keeping the economic engine strong while protecting human health and the environment are both essential. With the proper political checks and balances in place and robust and open debate, we can achieve both.
If you need assistance with an environmental-related matter, contact Christopher Pare’, P.Geo. Q.P. at 519-948-7300, Ext. 114.
Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.
Alan Hahn drafted this blog. Alan holds an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes HazMat Magazine, BizX Magazine, Michigan Lawyers Weekly, GreenStone Partners, Manure Manager Magazine, and Progressive Dairy.
Christopher Paré, P.Geo, reviewed this blog. Chris is a senior geoscientist and manager of Dragun’s Windsor, Ontario, office. Chris has more than 30 years of experience on projects ranging from environmental site assessments (Phase One/Two ESA), excess soils, remedial investigations, soil and groundwater remediation, Permits to Take Water, Records of Site Conditions, vapour intrusion, and site decommissioning. Chris is a frequent speaker, author, and expert witness. See Chris’ bio.
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