Supreme Court of Canada Finds Impact Assessment Act Unconstitutional in Part

MiningWatch Canada – Canadian Environmental Law Association – Environmental Defence Canada

Toronto – The federal government must immediately take steps to introduce amendments to the Impact Assessment Act in order to avoid a critical vacuum in environmental assessment of key projects in Canada, stated Canadian Environmental Law Association (CELA), Environmental Defence Canada (EDC), and MiningWatch Canada.

Today the Supreme Court of Canada found that the version of federal environmental assessment (now called impact assessment) that was adopted in 2019 is unconstitutional in part. This finding followed a Reference from the province of Alberta to its Court of Appeal on the question of federal jurisdiction to enact the law in its current form, and subsequent referral of their decision to Canada’s Supreme Court.

CELA, on behalf of itself and our clients EDC and MiningWatch, intervened in the case and argued that the Act is constitutionally valid and within Canada’s federal jurisdiction.

EDC, MiningWatch, and CELA, while disappointed in the decision of the Supreme Court of Canada that found the federal Impact Assessment Act regime unconstitutional in part, believe that the decision can provide the basis for a robust approach to environmental assessment law in Canada.

Tim Grey, Executive Director of Environmental Defence Canada, stated “It is essential that we have a solid basis in both the constitutional validity and in the application of federal environmental assessment law in Canada.”

“In doing so, we urge the federal government to ensure that the law provides for more comprehensive, coherent, and rigorous decision-making, along with increased inter-jurisdictional cooperation, inclusive of Indigenous governments,” stated Jamie Kneen, National Program Co-Lead of MiningWatch Canada.

Such an approach would address the Court’s concerns about an overreaching federal regime, but also ensures that the statute is not so dramatically narrowed in its application that it fails to protect the federal public interest in critical areas of concern including climate change impacts and biodiversity protection.

EDC, MiningWatch, and CELA urge Parliament to get to work in crafting such an approach as soon as possible. This is urgent as major nuclear proposals, major critical minerals projects, interprovincial pipelines, electricity generation, and many other matters must not have a vacuum in the application of federal environmental assessment.

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For more information, or to arrange an interview, please contact:

Canadian Environmental Law Association – Joseph Castrilli, Legal Counsel, [email protected], 416-998-9838

Environmental Defence Canada – Allen Braude, Senior Communications Manager, [email protected], 416-356-2587

MiningWatch Canada – Jamie Kneen, National Program Co-Lead, [email protected], 613-761-2273