Ottawa Will Amend Impact Assessment Act After Supreme Court Ruled It Unconstitutional: Environment Minister

Environment Minister Steven Guilbeault rises during Question Period in the House of Commons on Parliament Hill in Ottawa on Oct. 16, 2023. (The Canadian Press/Patrick Doyle)

Ottawa will modify its Impact Assessment Act after the Supreme Court of Canada ruled that several sections of the law are unconstitutional, Environment Minister Steven Guilbeault says.

“We intend to make it clear in an amended act that the prevention of adverse environmental effects within federal jurisdiction is the government’s ... policy intent, that this has always been our mission,” Mr. Guilbeault said during a press conference on Oct. 26.

“We will continue to work to get this right for the benefit of Canadians, our economy, and our environment.”

On Oct. 13, the Supreme Court of Canada ruled in a 5–2 majority decision that the Liberal government’s Impact Assessment Act of 2019, which allowed Ottawa to impose further environmental assessments of resource and infrastructure projects, was “largely unconstitutional.”

Chief Justice Richard Wagner wrote that while environmental protection remained one of “today’s most pressing challenges,” and Parliament has the power to enact an environmental assessment scheme, it must act within the “enduring division of powers framework laid out in the Constitution.”

Alberta challenged the constitutionality of Bill C-69 in 2019, with then-Alberta premier Jason Kenney calling the legislation the “No More Pipelines Act” because of the regulatory burden it had created when it came to building pipelines. Alberta, along with other provinces and First Nations groups, had claimed the law infringes upon provincial jurisdiction.

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On Oct. 13, Conservative Leader Pierre Poilievre reacted to the news of the court ruling by saying Ottawa had “violated” the constitutional rights of Canadians to develop their own resources.

“The good news is that the Supreme Court has found Justin Trudeau and NDP broke the Constitution and violated our rights with their anti-development law Bill C-69,” he said.

Environment Canada to Continue Regional Assessments

Mr. Guilbeault told reporters that the federal government would be seeking the “shortest path forward” to bring the Impact Assessment Act into compliance with the Constitution, noting that 23 projects are currently being assessed under the legislation.

The environment minister said his office had issued interim guidance on the law for project proponents. According to the document, Mr. Guilbeault’s authority to conduct assessments of projects has been paused until the amendments take effect.

Mr. Guilbeault said the agency would continue its regional assessments on three projects; the Ring of Fire projects in Ontario and offshore wind turbine projects in Nova Scotia and Newfoundland and Labrador. He said these assessments do not involve decision-making but are merely “information-gathering exercises to help us better understand the impacts.”

When asked when the updated legislation would be introduced, Mr. Guilbeault declined to give a timeline.

“There were extensive consultations that were done when C-69 was being discussed in this Parliament. So there will be some targeted consultations specifically with Indigenous nations, but there is a need to move swiftly and we will be focusing on that in the coming months,” he said.

Mr. Guilbeault also did not clarify what he believed needed to be changed about the act to bring it into compliance with the Constitution, saying “I’m not a lawyer and I’m not the justice minister.”

“But I think what the Supreme Court told us is that there are elements of the Act in its current form, where the federal government could surpass its authorities,” he said. “One of the elements of the act, for example, is the public interest. ... This is a very vague and not sufficiently defined element of the Act. Clearly, we will be looking at that.”