Supreme Court of Canada’s Impact Assessment Act ruling could limit climate protections: CAPE responds

The Supreme Court of Canada delivered its judgment on the constitutionality of the federal Impact Assessment Act (IAA) today at 9:45 a.m. ET. Canada’s highest Court severely limits the federal government’s constitutional basis to engage in comprehensive impact assessment for major development projects with climate change implications.

In response, Dr. Joe Vipond, a Calgary-based emergency doctor and CAPE past-president said:

“By restricting the federal government’s ability to assess and make decisions in relation to highly polluting major projects, this decision by the Supreme Court of Canada could have serious ramifications on the lives and health of people across Canada.

“As we have all seen from this summer’s devastating wildfires, the climate crisis threatens the health and safety of all people in Canada. This escalating health emergency is already causing deaths and illnesses, particularly among at-risk communities.

“We are disappointed that the federal government is no longer able to use this important tool to tackle Canada’s greenhouse gas emissions – including the right to strike down major proposed projects that risk releasing massive amounts of pollution. Emissions do not recognize provincial or national borders but pose an existential threat to us all.

“Protecting the environment and conserving nature is the shared legal responsibility of provincial and federal governments. But with some provinces pushing back on environmental protection, it will be harder for Canada to meet climate commitments and keep Canadians safe.

“The world is facing a rapidly closing window of opportunity to secure a liveable future. The Supreme Court’s decision to limit the federal authority in safeguarding Canadians from environmental harm is therefore a huge disappointment.”

 

Background

Climate Change and the IAA

The IAA (formerly Bill C-69), introduced in 2019, is the most recent of several legislative federal impact assessment frameworks enacted since the 1980s. The law provides a process by which the federal government can assess the environmental and social impacts of Canada’s largest natural resource and infrastructure development projects such as mines, highways, pipelines, and dams.

One of the most notable improvements of the IAA was that any project assessment would be required to consider the impacts of greenhouse gas emissions on climate change, along with other possible adverse effects. As such, it means that the IAA as introduced was a crucial tool to address climate change and protect the environment, for example by letting the federal government gather information on carbon-intensive projects and then deciding how such projects would impact Canada’s emission reduction commitments.

Alberta’s Constitutional Challenge

In September 2019, shortly after the IAA was given royal assent, the Alberta government challenged the constitutionality of the legislation and sought the opinion of the Alberta Court of Appeal (ABCA), on the basis that the bill intruded into provincial jurisdiction over natural resources development. In May 2022, a majority of the ABCA held that the IAA was an overreach in provincial jurisdiction and was unconstitutional.The federal jurisdiction over greenhouse gas emissions and climate change was central to the ABCA’s finding.

The federal government appealed the ABCA’s opinion to the Supreme Court of Canada. The hearings took place in March 2023.

CAPE Stand on Climate and the IAA 

To ensure that the federal government could retain jurisdiction in addressing the climate impacts of major development projects, CAPE appeared at the Supreme Court of Canada’s hearings, along 28 other intervenors that included environmental groups, First Nations and other Indigenous groups, industry organisations, and various provincial Attorney Generals.

CAPE’s submission before the Court was unique in arguing that the inclusion of greenhouse gas emissions and climate change in the federal impact assessment process and public interest decision-making is clearly within federal jurisdiction and that the Act is constitutional.

Among its arguments, CAPE’s submission stated that: “climate change presents an existential threat to the environment and human life in Canada and that the harmful effects of GHG emissions: (1) do not respect political boundaries; (2) are being acutely felt in Canada’s north, along its coastlines, and by Indigenous peoples; and (3) represent a collective action problem and no single jurisdiction can fully address the harm on its own” and “CAPE submits the GHG emissions of a proposed project may have adverse effects on several areas of federal responsibility, and Parliament is constitutionally entitled to conduct an impact assessment to gather information and make informed decisions that avoid or mitigate such adverse effects.”

For the submission, CAPE was assisted by the University of Calgary’s Public Interest Law Clinic, which engages in legislative reform and strategic litigation on behalf of public interest clients.

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For more information, please contact:

Reykia Fick, Communications Director, Canadian Association of Physicians for the Environment (CAPE) 647-762-9168, media@cape.ca

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