Supreme Court Strikes Down Predominant Sections of Environmental Impact Legislation as Unconstitutional

Supreme Court Strikes Down Predominant Sections of Environmental Impact Legislation as Unconstitutional
In a majority opinion, Chief Justice of the Supreme Court of Canada Richard Wagner wrote that that Ottawa’s Impact Assessment Act was largely unconstitutional. (Justin Tang/Canadian Press)


In a momentous ruling that sends shockwaves through the Canadian environmental and legal landscapes, the Supreme Court of Canada has declared substantial portions of the Impact Assessment Act (IAA), formerly known as Bill C-69, unconstitutional. Crafted by Prime Minister Justin Trudeau’s Liberal government and enacted in 2019, the IAA aimed to scrutinize the potential environmental and social implications of significant resource and infrastructure projects. However, the top court’s recent verdict deems its approach too expansive and in violation of constitutional bounds.

Majority Opinion Finds “Designated Projects” Scheme Overreaches

In a detailed and decisive 5-2 decision penned by Chief Justice Richard Wagner, the court expressed its affirmation for the underlying necessity of environmental protection but emphatically articulated that “Parliament has plainly overstepped its constitutional competence in enacting this designated projects scheme.” The “designated projects” involve those outlined in the legislation’s regulations or those subject to a ministerial order, a schema which the court ultimately found to be unconstitutional.

Wagner noted that while “environmental protection remains one of today’s most pressing challenges,” and Parliament bears the authority to formulate an environmental assessment strategy to confront this challenge, it also must “act within the enduring division of powers framework laid out in the Constitution.”

Sections Maintaining Constitutionality

Despite the overarching condemnation of the act, the court did identify portions within Sections 81 to 91 of the IAA as constitutional. These particular sections, which were not opposed as unconstitutional in challenges, pertain to projects executed or financed by federal authorities on federal lands, or outside Canada. Thus, they remain securely within federal jurisdiction. The ruling, therefore, is not a complete negation of the act but severs a substantive part of it.

A pedestrian walks past the Supreme Court of Canada in Ottawa, June 10, 2010. THE CANADIAN PRESS/Sean Kilpatrick

A Win for Alberta and a Rebuff for the IAA

This judicial outcome is particularly victorious for Alberta, a prominent oil-producing province, and other conservative factions who have long contended that the IAA accorded the federal government excessive authority to inhibit projects. Former Alberta premier, Jason Kenney, and other critics had pejoratively dubbed the IAA the “no more pipelines act,” emphasizing a perception of the act as an impediment to energy and infrastructure advancements.

Alberta had previously initiated a constitutional challenge to the Alberta Court of Appeal, which determined the legislation to be an “existential threat” in relation to the Canadian Constitution in a 4-1 decision. The verdict was appealed by the federal government, propelling it into the domain of the Supreme Court.

Dissenting Opinions Argue for Cooperative Federalism

Diverging from the majority, Justices Andromache Karakatsanis and Mahmud Jamal endorsed the entirety of the act, advocating for a cooperative approach to environmental protection. The dissenting judges contended that “Environmental protection requires action by all levels of government because each — whether by action or inaction — can affect the environment.” Their stance reflects an embrace of overlapping powers and intergovernmental cooperation as both unavoidable and essential in a federal state.

Moving Forward: Legal and Environmental Implications

The decision by the Supreme Court was part of a reference case and marks a pivotal juncture, defining the legal terrain for federal impact assessments and environmental evaluations in the forthcoming decades. Legal experts and governmental entities alike have keenly anticipated the ruling due to its potential to decisively shape future environmental legislation and project assessments.

Federal Environment Minister Steven Guilbeault and Energy and Natural Resources Minister Jonathan Wilkinson are expected to hold a joint virtual media availability to respond to the ruling, with updates eagerly awaited by parties across political and sectoral divides.