Alberta Court of Appeal Releases Reference Opinion on Constitutionality of the Federal Impact Assessment Act

Written By Brad Gilmour, Bruce Mellett and Sean Assie

The Province of Alberta referred two constitutional questions to the Alberta Court of Appeal:

1. whether the federal Impact Assessment Act (IAA), part of Bill C-69, is unconstitutional in whole; and
2. whether certain regulations made under the IAA are unconstitutional in whole or in part.

The case was argued before the Alberta Court of Appeal in February of 2021.The Court released its opinion on May 10.

Opinion of the Court

By a four to one majority, the Alberta Court of Appeal is of the opinion that the IAA and its Regulations are unconstitutional. The opinion can be found on the Court of Appeal Alberta website.

In arriving at its opinion that the IAA and its Regulations are outside the jurisdiction of Parliament, the Majority concluded that:

• the IAA and Regulations should be considered together and their pith and substance defined as "the establishment of a federal impact assessment and regulatory regime that subjects all activities designated by the federal executive to an assessment of all their effects and federal oversight and approval";
• "[t]he subject matter of the IAA cannot be classified as falling within federal jurisdiction on the basis of the claimed heads of powers, individually or collectively" and "[t]he subject matter of the IAA, when applied to intra-provincial designated projects, falls squarely within several heads of provincial power";
• the legislative scheme is an example of federal overreach into areas of exclusive provincial jurisdiction, including section 92A of the Constitution Act, 1982, which grants provinces power over non-renewable natural resources;
• the IAA would give the federal executive an effective veto over intra-provincial activities designated in the Project List, including in-situ oil sands projects over a certain size; and
• the legislation would allow the federal executive to impose its view of the public interest over whether and how intra-provincial projects should proceed.

The majority also expressed its concern over the IAA's duplication of existing provincial assessment regimes and for the impact on investor confidence. It further observed that there is no general federal jurisdiction over GHG emissions or projects and activities that may create them.

The opinion declined to attempt to sever the offending provisions and thus concluded that the IAA and Regulations are ultra vires.

In a dissenting opinion, Justice Greckol concluded that the IAA was a constitutional exercise of federal jurisdiction to facilitate planning and information gathering in decision-making, as well as to regulate activities' effects on matters within its jurisdiction in cooperation with the provinces and First Nations.

Bennett Jones LLP was counsel for Alberta on the Reference, with Bruce Mellett, Brad Gilmour and Sean Assie appearing for the Province.

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