The Supreme Court of Canada will soon release a decision on the constitutionality of the Impact Assessment Act. Oceans North legal intern Jadianne Drysdale spoke to David Wu, a lawyer at Arvay Finlay LLP who intervened in the case on behalf of Oceans North, about how the decision could shape the future of conservation in Canada.
What is the Supreme Court reference case on the Impact Assessment Act about, and why is the decision important?
This case is about whether the Impact Assessment Act (IAA) is constitutional. In the last several years, political tension has been rising concerning provinces that are prioritizing resource development more than others and how that development might impact other jurisdictions. For example, although a fossil fuel project might be located in one province, the greenhouse gas emissions resulting from it contribute to climate change, which affects other provinces, other countries, and the oceans.
The IAA, which came into force in 2019, arguably broadened the scope of impacts the federal government can assess when deciding whether a major project should go ahead—including its effect on the climate. The Government of Alberta challenged the IAA’s constitutionality, alleging that it went beyond Canada’s constitutional powers by overreaching into provincial jurisdiction over natural resources.
The decision is very important: it will impact how environmental assessment legislation in this country is looked at and drafted, set jurisdictional parameters between Canada and the provinces, affect the different heads of power that Canada relies upon to uphold legislation, and establish potential constraints on resource development.
Oceans North was an intervenor in this case. Can you summarize what that means?
An intervenor is a third party that applies to the Court for intervener status because of some public interest in the case and because they can present some unique and useful perspective. Intervenors are given the ability to make limited written submissions and brief oral submissions to the Court.
What was Oceans North’s stance on this case, and what arguments did you present?
Oceans North took the position that the IAA is constitutional and should be upheld. There were three arguments that we made. The first argument was in relation to the power to manage and regulate fisheries, which is a federal power under the Constitution. We argued that this power should be interpreted broadly given the characteristics of marine ecosystems, which span jurisdictions and provincial boundaries. We took the view that the federal government, under the IAA and the fisheries power, can regulate activities which may cause potential harm, not just actual harm, to fisheries.
Second, we argued that the federal government’s national concern power should also be interpreted broadly and can be used to justify the IAA to protect against extra-provincial or international adverse effects that major projects might have, including marine pollution or greenhouse gas emissions.
Lastly, we argued that a robust interpretation of both the fisheries power and national concern power is needed to address the inherent spillover effects of major resource development projects, which affect the environment and people beyond their province of origin. The federal government has an important role in regulating those extra-provincial impacts, even if the projects are completely within one province.
What outcome are you and Oceans North hoping for from the Supreme Court of Canada’s decision, and what adjustments might the federal and provincial governments make to their environmental assessment legislation following this decision?
We’re hoping for the Court to uphold the legislation in its entirety. However, there are a variety of possible outcomes, each with their own consequences and potential adjustments. It might be that the Court finds some of the legislation to be constitutional but others other parts to be unconstitutional, requiring amendments to tighten up those parts that aren’t constitutional. For example, they may need to make certain definitions in the legislation more specific. There could also be a wholesale revision of our federal environmental assessment legislation depending on the outcome of the case.
If the IAA were deemed unconstitutional by the Supreme Court of Canada for infringing on provincial jurisdiction, what are the consequences that might arise?
If the IAA were found unconstitutional, there would need to be amendments to the legislation tailored to address the Court’s decision and what was said about the constitutionality of specific parts or the entirety of the legislation. However, in a broader sense, it could result in a major environmental setback. It could mean that major projects which are only situated in one province would mainly be governed by provincial environmental assessment legislation, which may not be very robust or consider extra-provincial or marine impacts. That would be detrimental to our environmental protection regime.
What made you want to take on this case and represent Oceans North at the Supreme Court of Canada?
I’m interested in and passionate about environmental protection cases and how the law can or should be used to address climate change. I had previously intervened on Oceans North’s behalf in the case about whether the federal price on carbon was constitutional. The IAA case is in some ways part two, because the carbon pricing case only dealt with one aspect of how the federal government can regulate greenhouse gas emissions. This begs an inquiry into the extent that Canada can regulate greenhouse gases in other respects, including through environmental assessment legislation. So, I thought the IAA reference would be a natural case to take on.
Jadianne Drysdale is Oceans North’s legal intern.