Federal Impact Assessment Act Constitutional Reference

The Impact Assessment Act, SC 2019, c 28, s 1 (IAA) is the most recent of several legislative regimes of federal impact assessment enacted since the 1980s and provides a process by which Canada can evaluate the social, economic and environmental effects of designated projects. Among several other notable changes from earlier iterations of the legislative regime, the IAA authorizes the federal government to consider the impacts of greenhouse gas (GHG) emissions on climate change in determining whether a project is in the public interest, taking into consideration relevant natural and social science evidence on project impacts, Indigenous knowledge, and other community engagement. In September 2019, Alberta announced it would challenge the constitutionality of the IAA. In May 2022, the Alberta Court of Appeal (ABCA) released its opinion in Reference re Impact Assessment Act, 2022 ABCA 165. A majority of the ABCA held that the IAA is an overreach on provincial jurisdiction and is unconstitutional – in other words ultra vires Parliament’s legislative authority pursuant to section 91 of the Constitution Act, 1867. The federal government appealed the ABCA decision to the Supreme Court of Canada (SCC).

In Fall 2022, the Clinic was retained by the Canadian Association of Physicians for the Environment  (CAPE). CAPE is a national non-profit organization of physicians and healthcare professionals that aims to improve human health and equality through evidence-based advocacy in addressing the ecological and climate crises. CAPE believes that consideration of GHG emissions on climate change is key to securing human and planetary health for current and future generations.

As legal counsel, the Clinic advised and assisted CAPE with preparing and filing a successful application for leave to intervene in the SCC proceedings. The Clinic then assisted in preparing written argument and appeared as legal counsel for CAPE at the oral hearing at the SCC in March 2023.