Author: Nigel Bankes Page 5 of 87

By: Nigel Bankes and Andrew Leach

Decision Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: The Word “Exclusive” Does Not Confer a Constitutional Monopoly, Nor a Right to Develop Provincial Resource Projects

The majority opinion of the Supreme Court of Canada in the Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference) concludes that the federal government has arrogated to itself decision-making powers that properly belong to provincial governments; powers, that is, with respect to resource projects and other works and undertakings located entirely within a province (for short, “provincial resource projects”). (For an overview of the IAA Reference see Olszynski et al, “Wait, What!? What the Supreme Court Actually Said in the IAA Reference”.) Given that conclusion, it is not surprising that Premier Danielle Smith, as well as former premier Jason Kenney, who initiated the Reference, have celebrated the decision. But in doing so they have both significantly overstated the majority’s conclusions by suggesting that the majority endorsed a strong theory of exclusive provincial jurisdiction over provincial resource projects. Premier Smith, echoing language in the Alberta Court of Appeal majority opinion in the IAA Reference (which we commented on here), would extend this interpretation further to a right of development and to a form of interjurisdictional immunity for projects falling outside the exceptions in section 92(10) of the Constitution Act, 1867. We provide concrete examples of Premier Smith’s use of the word “exclusive” (or its synonyms) and references to a “right to develop” from the Premier’s press conference on the IAA Reference decision and an interview prior to the decision in Appendix A to this post, and a link to the views of the Hon. Jason Kenney in Appendix B.

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By: Martin Olszynski, Nigel Bankes, and David Wright

Case Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Wait, What!? What the Supreme Court Actually Said in the IAA Reference

This past Friday, October 13, the Supreme Court of Canada released its opinion in Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference). Writing for a 5:2 majority (Justices Mahmud Jamal and Andromache Karakatsanis dissenting), Chief Justice Richard Wagner held that what is known as the “designated project” (or “major project” in colloquial terms) review scheme of the Impact Assessment Act, SC 2019, c 28, s 1 (“IAA”) is unconstitutional. This post sets out what is, and is not, constitutional about the IAA regime. We begin by first clarifying the Act’s current legal status. We then set out the principles – post-IAA Reference – of federal and provincial jurisdiction over the environment generally, and then with respect to impact assessment specifically. This is followed by a discussion of the IAA’s specific constitutional defects as found by the majority, the implications of those defects, and their potential remedies. We conclude with some observations regarding the IAA Reference’s relevance to future constitutional battles over federal clean electricity regulations and an oil and gas greenhouse gas emissions cap.

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