Attorney General of Canada Appellant v. Attorney General of Alberta, 2023 SCC 23

SUPREME COURT OF CANADA Citation: Reference re Impact Assessment Act , 2023 SCC 23 Appeal Heard: March 21, 22, 2023 Judgment Rendered: October 13, 2023 Docket: 40195 Between: Attorney General of Canada Appellant and Attorney General of Alberta Respondent - and - Attorney General of Ontario, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Newfoundland and Labrador, Indian Resource Council, File Hills Qu’Appelle Tribal Council, Pasqua First Nation, World Wildlife Fund Canada, Nature Canada, West Coast Environmental Law Association, Canadian Association of Petroleum Producers, Canadian Taxpayers Federation, Athabasca Chipewyan First Nation, Business Council of Alberta, Ecojustice Canada Society, Woodland Cree First Nation, Mikisew Cree First Nation, Hydro-Québec, Canadian Constitution Foundation, Independent Contractors and Businesses Association, Alberta Enterprise Group, Canadian Association of Physicians for the Environment, Advocates for the Rule of Law, Oceans North Conservation Society, Canadian Environmental Law Association, Environmental Defence Canada Inc., MiningWatch Canada Inc., Explorers and Producers Association of Canada, First Nations Major Projects Coalition Society, Centre québécois du droit de l’environnement and Lummi Nation Interveners Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment: (paras. 1 to 216) Wagner C.J. (Côté, Rowe, Martin and Kasirer JJ. concurring) Joint Reasons Dissenting in Part : (paras. 217 to 361) Karakatsanis and Jamal JJ.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . IN THE MATTER OF a Reference by the Lieutenant Governor in Council to the Court of Appeal of Alberta concerning the constitutionality of the Impact Assessment Act , S.C. 2019, c. 28, s. 1 , and of the Physical Activities Regulations , SOR/2019-285 Attorney General of Canada Appellant v.

Attorney General of Alberta Respondent and Attorney General of Ontario, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Newfoundland and Labrador, Indian Resource Council, File Hills Qu’Appelle Tribal Council, Pasqua First Nation, World Wildlife Fund Canada, Nature Canada, West Coast Environmental Law Association, Canadian Association of Petroleum Producers, Canadian Taxpayers Federation, Athabasca Chipewyan First Nation, Business Council of Alberta, Ecojustice Canada Society, Woodland Cree First Nation, Mikisew Cree First Nation, Hydro-Québec, Canadian Constitution Foundation, Independent Contractors and Businesses Association, Alberta Enterprise Group, Canadian Association of Physicians for the Environment, Advocates for the Rule of Law,

Oceans North Conservation Society, Canadian Environmental Law Association, Environmental Defence Canada Inc., MiningWatch Canada Inc., Explorers and Producers Association of Canada, First Nations Major Projects Coalition Society, Centre québécois du droit de l’environnement and Lummi Nation Interveners Indexed as: Reference re Impact Assessment Act 2023 SCC 23 File No.: 40195. 2023: March 21, 22; 2023: October 13.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal of alberta Constitutional law — Division of powers — Environmental impact assessment — Federal statute and regulations establishing assessment process for projects potentially having environmental impacts — Whether statute and regulations intra vires Parliament — Constitution Act, 1867, ss. 91 , 92 — Impact Assessment Act, S.C. 2019, c. 28, s. 1 — Physical Activities Regulations, SOR/2019-285 .

In 2019, following a review of the existing federal environmental assessment process, Parliament enacted the Impact Assessment Act (“ IAA ”) and the Governor in Council made the Physical Activities Regulations (“ Regulations ”) under the IAA . The IAA and the Regulations establish a complex information gathering and regulatory scheme, which is essentially two schemes in one. First, a discrete portion of the scheme — contained in ss. 81 to 91 of the IAA — deals with projects carried out or financed by federal authorities on federal lands or outside Canada.

Second, the balance of the scheme — made up of the IAA ’s remaining provisions and the Regulations — deals with “designated projects” as defined in the IAA . The impact assessment process for designated projects can be divided into three main phases: the planning phase, the impact assessment phase and the decision-making phase. The planning phase focuses on initial information gathering. The proponent of a designated project must provide the Impact Assessment Agency with an initial project description.

The Agency then consults with a number of parties, and decides whether the project requires an impact assessment. In the impact assessment phase, the proponent is required to provide the necessary information or studies to the entity conducting the assessment, which will be the Agency or its delegate.

This phase culminates in the preparation of an assessment report, which sets out the effects that are likely to be caused by the carrying out of the designated project and indicates those that are adverse “effects within federal jurisdiction” and those that are adverse “direct or incidental effects”, terms defined in s. 2 of the IAA . The assessment report must also take into account numerous mandatory assessment factors listed in s. 22 of the IAA . The mandatory factors include changes to the environment or to health, social or economic conditions and the positive and negative consequences of these changes.

Finally, during the decision-making phase, the decision maker must determine whether the adverse effects within federal jurisdiction and the adverse direct or incidental effects are in the public interest. If the decision maker concludes that the effects in question are in the public interest, the Minister of the Environment must establish any condition that the Minister considers appropriate in relation to those effects.

The assessment process set forth in ss. 81 to 91 focuses on a narrow set of projects: physical activities carried out on federal lands or outside Canada in relation to a physical work that are not designated projects or physical activities designated by regulation, and physical activities designated under s. 87 or that are part of a designated class of physical activities. Sections 81 to 91 do not dictate an impact assessment process but rather require the federal authority that carries out or finances the project to decide if the project is likely to cause significant adverse environmental effects.

If so, it must then be determined whether these effects are justified in the circumstances. Alberta’s Lieutenant Governor in Council referred two questions to the province’s Court of Appeal. They asked whether the IAA was unconstitutional, in whole or in part, as being beyond the legislative authority of Parliament under the Constitution, and whether the Regulations were unconstitutional, in whole or in part, by virtue of purporting to apply to certain activities listed in

Schedule 2 that relate to matters entirely within the legislative authority of the provinces under the Constitution. A majority of the Court of Appeal concluded that the IAA and the Regulations are ultra vires Parliament and therefore unconstitutional in their entirety. The Attorney General of Canada appeals as of right to the Court. Held (Karakatsanis and Jamal JJ. dissenting in part): The appeal should be allowed in part. Per Wagner C.J. and Côté, Rowe, Martin and Kasirer JJ.: The reference questions should be answered in the affirmative: the federal impact assessment scheme is unconstitutional in part.

Although the process set forth in ss. 81 -91 of the IAA is constitutional and can be separated out, the balance of the scheme — that is, the “designated projects” portion — is ultra vires Parliament and thus unconstitutional. The designated projects scheme is ultra vires for two overarching reasons: it is not in pith and substance directed at

regulating “effects within federal jurisdiction” as defined in the IAA because these effects do not drive the scheme’s decision-making functions, and the defined term “effects within federal jurisdiction” does not align with federal legislative jurisdiction. The overbreadth of these effects exacerbates the constitutional frailties of the scheme’s decision-making functions.

Environmental protection remains one of today’s most pressing challenges, and Parliament has the power to enact a scheme of environmental assessment to meet this challenge, but Parliament also has the duty to act within the enduring division of powers framework laid out in the Constitution. The division of powers analysis has two steps: characterization and classification. At the characterization step, a court must consider the purpose and effects of the challenged law in order to identify its pith and substance.

In order to determine a law’s purpose, a court looks to both intrinsic evidence (the text of the law, its

preamble, its purpose clause, if it has one, its title and its overall structure) and extrinsic evidence (the context of the law in question, the minutes of parliamentary committees and relevant government publications). In analyzing the effects of the challenged law, a court considers both legal effects (effects that flow directly from the provisions of the statute itself) and practical effects (effects that flow from the application of the statute).

Finally, the court must characterize the pith and substance of the challenged law as precisely as possible, capturing the law’s essential character in terms that are as precise as the law will allow. Characterization is distinct from classification, and it is imperative that the characterization and classification analyses be kept distinct. In determining the pith and substance of a law, courts must not refer to the heads of power contained within the Constitution Act, 1867 . The characterization step of the analysis must focus exclusively on the pith and substance or dominant characteristic of the law.

Only after precisely stating the matter to which the law relates should a court proceed to the classification phase of the analysis and consider specific heads of power. In addition, the presumption of constitutionality is a cardinal principle of the Court’s division of powers jurisprudence. According to this presumption, every legislative provision is presumed to be intra vires the level of government that enacted it, so a court should approach any question as to its validity on the assumption that it was validly enacted unless the party challenging it demonstrates otherwise.

This presumption also functions as a principle of statutory

interpretation: it directs a court to assume that a legislative body does not intend to exceed its powers under the Constitution. Therefore, when characterizing a challenged law, a court faced with competing, plausible characterizations should normally choose that one that would support the validity of the law. However, this presumption is not an impermeable shield that protects legislation from constitutional review by courts, nor can they employ the presumption of constitutionality to rewrite legislative text as they see fit in order to bring it into compliance with the Constitution.

Courts cannot rely on the presumption of constitutionality to disregard a statute that speaks clearly and is ultra vires its enacting body, and the presumption does not displace the duty of courts to meaningfully review the constitutionality of legislation. Similarly, a court cannot circumvent its duty to meaningfully review the constitutionality of legislation by suggesting that, insofar as an administrative decision maker applies a law unconstitutionally, the application of that law may be judicially reviewed. The constitutional validity of a law and its administrative application are distinct concepts.

Where a law is ultra vires and therefore unconstitutional, it cannot be saved by the prospect of administrative judicial review. After a court characterizes the matter of a law, it must determine the classes of subjects into which the matter falls by reference to the heads of power set out in s. 91 or 92 of the Constitution Act, 1867 . If the matter of law is properly classified as falling under a head of power assigned to the adopting level of government, the legislation is intra vires and valid.

A law is classified based on its main thrust or dominant characteristic, and its secondary effects are not the focus of the validity analysis. The fact that a valid law incidentally touches on a head of power belonging to the other level of government does not affect its validity. Classifying environmental legislation presents a challenge because the “environment” is not a head of power under s. 91 or 92 of the Constitution Act, 1867 . Environmental management cuts across many different areas of constitutional responsibility.

Accordingly, neither level of government has exclusive jurisdiction over the whole of the “environment” or over all “environmental assessment”. Both levels of government can legislate in respect of certain aspects of environmental protection, including certain aspects of the environmental assessment of physical activities. Shared federal and provincial responsibility for environmental impact assessment is neither unusual nor unworkable; rather, it is a central feature of environmental decision making in Canada.

This is consistent with the double aspect doctrine, which reflects the idea that the same fact situation can be regulated from different perspectives, one falling within s. 91 and the other falling within s. 92 . Nonetheless, the double aspect doctrine must be applied with caution. First, not all fact situations have a double aspect, and each fact situation must be identified with precision. Environmental assessment of physical activities may or may not have a double aspect in relation to a specific project.

Second, the fact that environmental assessment of physical activities may have a double aspect — with some elements falling within the legislative authority of each level of government — does not mean that it is an area of concurrent jurisdiction. If a fact situation can be regulated from both a federal perspective and a provincial perspective, it follows that each level of government can only enact laws which, in pith and substance, fall under its respective jurisdiction.

The notion that both levels of government may legislate in respect of certain aspects of environmental protection, each pursuant to its own legislative competence, is also consistent with the principle of cooperative federalism. However, while flexibility and cooperation are important to federalism, they cannot override or modify the separation of powers. Courts may not, under the guise of cooperative federalism, erode the constitutional balance inherent in the Canadian federal state.

In the instant case, a careful analysis of the purpose and effects of the IAA and Regulations reveals that the scheme they establish has two distinct components: one dealing with “designated projects” and another addressing projects carried out or financed by federal authorities on federal lands or outside Canada (ss. 81 to 91 of the IAA ).

The intrinsic and extrinsic evidence reveal that the scheme articulates a broad array of purposes, including protecting the environment and fostering sustainability; satisfying Canada’s environmental obligations; assessing and regulating the broad effects of certain physical activities, such as effects on health, social and economic conditions; facilitating the participation of Indigenous peoples and the public; and establishing an efficient and transparent process.

The legal and practical effects, considered together, reveal that the scheme establishes a comprehensive information-gathering and regulatory process. The pith and substance of the “designated projects” component is to assess and regulate designated projects with a view to mitigating or preventing their potential adverse environmental, health, social and economic impacts.

The pith and substance of the component set out in ss. 81 to 91 is to direct the manner in which federal authorities that carry out or finance a project on federal lands or outside Canada assess the significant adverse environmental effects that the project may have. There is no doubt that Parliament can enact impact assessment legislation that is directed at the federal aspects of projects. The breadth of these “federal aspects” will vary with the circumstances.

Where Parliament is vested with jurisdiction to legislate in respect of a particular activity, it has broad discretion to regulate that activity and its effects, but Parliament’s jurisdiction is more

restricted where the activity falls outside of its legislative competence. In those cases, it can validly legislate only from the perspective ofthe federal aspects of the activity. The designated projects scheme treats all “designated projects” in the same way, regardless of whetherParliament is vested with broad jurisdiction over the activity itself or narrower jurisdiction over the activity’s impacts on federal heads ofpower. And many of the physical activities to which the scheme applies are primarily regulated through the provincial legislatures’powers over local works and undertakings or natural resources.

Parliament can enact impact assessment legislation to regulate theseprojects from a federal perspective, so long as the regulation of federal aspects represents the dominant characteristic of the law. The “designated projects” scheme is ultra vires, as its pith and substance exceeds the bounds of federal jurisdiction. This isso for two overarching reasons. First, the “effects within federal jurisdiction” do not drive the scheme’s decision-making functions.Consequently, the scheme is not in pith and substance directed at regulating these effects. There are four decision-making juncturesembedded in the scheme: (

i) the designation of physical activities as “designated projects”; (ii) the screening decision; (iii) thedelineation of the scope of the impact assessment and the factors to be considered therein; and (iv) the public interest decision andresulting regulation and oversight. The scheme requires the decision maker to consider a host of factors but does not specify how thosefactors are to drive the ultimate conclusion. The scheme’s decision-making mechanism thereby loses its focus on regulating federalimpacts.

Instead, it grants the decision maker a practically untrammelled power to regulate projects qua projects, regardless of whetherParliament has jurisdiction to regulate a given physical activity in its entirety. In this respect, the screening decision and the publicinterest decision are constitutionally problematic. The screening decision as to whether an impact assessment is required for a particularproject must be rooted in the possibility of adverse federal effects.

However, because the decision maker must take into account anopen-ended list of factors, all of seemingly equal importance, only two of them tied to federal jurisdiction, an impact assessment couldbe required for reasons other than, or not sufficiently tied to, the project’s possible impacts on areas of federal jurisdiction. Similarly, thepublic interest decision must focus on the project’s federal effects.

However, because the mandatory public interest factors are not allconfined to federal legislative competence, and because some factors are framed in relation to the assessment of the project as a wholerather than to the adverse “effects within federal jurisdiction”, a determination of whether adverse federal effects are in the publicinterest is transformed into a determination of whether the project as a whole is in the public interest. Second, the defined term “effects within federal jurisdiction” does not align with federal legislative jurisdiction under s. 91,but rather, goes far beyond its limits.

Its overbreadth manifests itself in two distinct ways. First, the definition of “effects within federaljurisdiction” is central to the scheme’s decision-making functions. Its overbreadth dilutes the focus at the key decision-making junctures,shifting it away from federal aspects and encompassing aspects that are within provincial jurisdiction. Second, the defined “effectswithin federal jurisdiction” result in impermissibly broad prohibitions.

Due to the overbreadth of these defined effects, the conductprohibited by s. 7 of the IAA extends beyond the range of conduct that Parliament can validly regulate pursuant to its assigned heads ofpower. The component of the scheme set out in ss. 81 to 91 of the IAA is clearly intra vires Parliament. These provisions have notbeen challenged as unconstitutional. Furthermore, the process established by these provisions resembles the process upheld by the Courtin Friends of the Oldman River Society v. Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3.

Though the testfor severance in division of powers cases is stringent, ss. 81 to 91 can be separated from the balance of the scheme and upheld asconstitutional. Per Karakatsanis and Jamal JJ. (dissenting in part): The IAA and the Regulations are intra vires in their entirety. Theenvironment, by its very nature, is complex and diffuse.

It is not a subject matter assigned to either Parliament or the provinces under theConstitution Act, 1867, but instead cuts across many areas of constitutional responsibility, some federal, some provincial, and all levelsof government bear an all-important duty to use their powers to protect it. This shared responsibility is neither unusual nor unworkable ina federal state such as Canada. Rather, it reflects the Court’s flexible approach to federalism, which recognizes that overlapping powersare unavoidable and intergovernmental cooperation is essential.

Legislation must be approached from a posture of respect and presumedgood faith on the part of legislatures, interpreted to comply with constitutional limits, and evaluated on the basis that the courts shouldfavour the operation of statutes enacted by both levels of government whenever possible. Courts must presume that the regime will beadministered in a constitutionally compliant manner and will not find legislation unconstitutional simply because it could conceivably bemisused.

Courts must also recognize and respect the constitutional bargain struck with respect to the exclusive catalogue of both federaland provincial powers.

The IAA builds on earlier federal environmental assessment regimes by establishing a multi-stage process to assess theeffects of designated projects and protect against adverse effects in specified areas, unless allowing them would be in the public interest.The IAA contains two distinct schemes: a primary scheme addressing physical activities designated as “designated projects”, which takesup most of the IAA, and a secondary scheme in ss. 81 to 91 that applies to federal projects.

There is no dispute that the secondary schemein ss. 81 to 91 for projects funded by the federal government or carried out either on federal lands or outside Canada is intra viresParliament.

The IAA’s purpose and its practical and legal effects indicate that the pith and substance of the designated projects scheme isto establish an environmental assessment process to (1) assess the effects of physical activities or major projects on federal lands,Indigenous peoples, fisheries, migratory birds, and lands, air, or waters outside Canada or in provinces other than where a project islocated, and (2) determine whether to impose restrictions on the project to safeguard against significant adverse federal effects, unlessallowing those effects is in the public interest.

This description of the pith and substance is more precise and highlights the critical role ofthe public interest decision-making process under the legislation. Based on that characterization, the public interest decision-makingprocess under the IAA is constitutional, provided that it is anchored in adverse federal effects within Parliament’s legislative jurisdictionover fisheries, navigable waters, Indians and lands reserved for Indians, criminal law, international and interprovincial rivers, and thenational concern branch of the peace, order, and good government power.

The intrinsic and extrinsic evidence shows that the purpose of the IAA is to establish a transparent information-gathering anddecision-making process about whether physical activities or designated projects have adverse federal effects, and if so, whether theyshould be permitted in the public interest, with or without conditions.

The intrinsic evidence suggests that the information-gatheringprocess and decision-making function are more specifically directed at whether the project under consideration has any adverse effectswithin federal jurisdiction and, if so, whether those effects are nonetheless in the public interest. This more precise purpose of the IAA is

reflected in the

long title of the statute, the text and structure of the legislation, and the IAA ’s stated purposes and

preamble. Most importantly, the IAA is intended to protect the components of the environment and the health, social and economic conditions that are within the legislative authority of Parliament from adverse effects caused by a designated project. Extrinsic evidence confirms that the IAA ’s dominant purpose is to allow well-informed, transparent decisions as to whether allowing a project’s adverse federal effects is in the public interest. The IAA ’s legal effects support that conclusion.

The main legal effects of the IAA are that: (1) projects are designated based on the likelihood they would cause non-trivial adverse federal effects; (2) the Agency decides whether to assess projects on the same basis; (3) the Agency’s report must identify the adverse federal effects that a project is likely to cause and specify the extent to which those effects are significant; and (4) the ultimate public interest determination and any resulting conditions imposed on the project must be reasonable and proportionate, based on the adverse federal effects, the extent to which they are significant, and whether they can be mitigated.

The statutory text, context and purpose, along with the applicable interpretive principles, show that Parliament did not intend to capture de minimis effects. Indeed, the significance threshold for adverse environmental effects permeates every major stage and decision taken under the IAA with respect to designated projects. Moreover, even if interpreting the IAA to capture de minimis effects were a reasonably available

interpretation, the presumption of constitutionality demands that it be rejected in favour of a constitutionally-conforming

interpretation. The IAA ’s practical effects, including potential delays or the expenditure of resources, may be important policy matters for Parliament, but they are irrelevant for constitutional purposes. Parliament chose broad language for what constitutes an “effect within federal jurisdiction” under the IAA , but each of the adverse federal effects is properly classified as falling under Parliament’s exclusive legislative jurisdiction.

Each of the adverse federal effects anchor federal review and decision making under the IAA legislative scheme and fit within multiple heads of Parliament’s legislative jurisdiction under the Constitution Act, 1867 . There are four decision-making junctures under the IAA : (

a) designating physical activities as “designated projects”; (

b) the screening decision as to whether a project should proceed to an impact assessment; (

c) identifying the scope of the assessment and the factors to be considered; and (

d) the public interest decision and resulting regulation and oversight. The adverse federal effects are not overbroad or misaligned with federal legislative jurisdiction. At the first juncture, the designation process is driven by the potential for a physical activity to cause adverse federal effects. The designation process appropriately reflects the precautionary principle and the need to gather information at an early stage of an environmental impact assessment process, to properly inform federal decision making about whether a designated project may cause adverse federal effects.

Once a project is designated under the Regulations or by ministerial order, the project moves to the second juncture, at which the Agency decides whether to conduct an impact assessment of the designated project based on mandatory factors in s. 16(2) of the IAA . This screening decision is anchored in the possibility that the designated project will cause adverse federal effects. Each of the discretionary factors in ss. 16(2) (a), (b), and (

c) is rooted in adverse federal effects, and s. 16(2) (

d) may also reflect adverse federal effects, depending on the comments of the public or the Indigenous group consulted. Section 16(2) (

e) is largely irrelevant for most provincially regulated projects, unless they occur on federal lands or relate to a federal government policy, program, or plan, in which case there is a clear nexus to federal jurisdiction. Section 16(2) (

f) applies only where another jurisdiction conducts an assessment, in which case it is appropriate for the Agency to consider what the other jurisdiction has to say. Finally, s. 16(2)(

g) is a residuary clause that allows the Agency to consider other factors it considers appropriate, but, like any discretionary power granted under legislation, it must be exercised reasonably and consistent with the object and purpose of the IAA , which is to prevent significant adverse environmental effects. Fidelity to the principles of cooperative federalism confirms the constitutionality of the discretion granted under s. 16.

A court, in evaluating the constitutionality of the legislation as a whole, must favour, where possible, the ordinary operation of statutes enacted by both levels of government and must avoid blocking the application of measures enacted to promote the public interest, while the presumption of constitutionality requires a court to interpret the discretion granted under the legislation as being exercised in good faith and within constitutional bounds.

Finally, if the Agency were to exercise its discretion to require a project with little or no potential for adverse federal impacts to proceed to an impact assessment, such a decision would be unreasonable and would not reflect the object and purpose of the IAA to prevent significant adverse federal environmental effects. Such a decision in a particular case, and based on an appropriate evidentiary record, would be subject to judicial review. At the third juncture — the impact assessment phase — the Agency must take account of the broad range of factors in s. 22(1) of the IAA .

When establishing the process for considering the environmental costs and benefits of a designated project that potentially has an adverse federal effect, Parliament is constitutionally entitled to instruct the decision maker to consider the full range of costs and benefits of the project. Some of the listed factors are effects that fall within federal jurisdiction, while others are intended to allow federal authorities to make a fully informed decision about the costs and benefits of proceeding with the project, with or without conditions, and about potential mitigation measures.

This is essential for federal authorities to make an integrated decision as to the designated project’s overall costs and benefits.

At the final juncture, the decision-making phase requires a cost-benefit analysis based on public interest factors identified in s. 63 of the IAA , including the extent to which the designated project contributes to sustainability, has adverse federal effects that are significant as indicated in the impact assessment report, has an impact on any Indigenous group or adverse effects on the rights of Indigenous peoples protected under s. 35 of the Constitution Act, 1982 , and hinders or contributes to the Government of Canada’s ability to meet its environmental obligations and climate change commitments.

Section 63 requires a reasonable and proportionate weighing of the public interest factors in deciding whether a project may proceed, and if so, whether any conditions should be imposed. This involves a cost-benefit balancing of the adverse federal effects and all other relevant public interest considerations relating to the project.

As long as the public interest decision is anchored in federal jurisdiction based on adverse federal effects, federal authorities are entitled to make an integrated and proportionate decision that weighs the costs and benefits of allowing the project to proceed, and, if it is allowed to proceed, whether conditions should be imposed. When there is a clear impact on an area of federal jurisdiction, the decision whether to allow the project to go ahead in spite of the impact can be an integrated decision that takes into account issues that are within provincial jurisdiction.

It does not serve to protect provincial jurisdiction to force the federal decision to be made in a partially blind manner. Nor can the decision be limited to whether adverse federal effects are in the public interest, without considering other factors. Adverse federal effects will rarely, if ever, be in the public interest. For a project to be in the public interest, its adverse federal effects need to be outweighed by other positive benefits of the project, so the federal decision maker must consider the socio-economic benefits that will

flow from a project and that will outweigh the negative impacts. It cannot be constitutional for federal authorities to consider whether aproject has economic benefits, but unconstitutional for them to consider whether the same project promotes sustainable development. The defined “effects within federal jurisdiction” serve as “triggers” or gateways for the prohibitions under s. 7 of the IAAand for the application of the designated projects scheme of the IAA.

Parliament chose broad language for what constitutes an “effectwithin federal jurisdiction” under the IAA, but each effect, as defined, is properly classified as falling under Parliament’s exclusivelegislative jurisdiction. None of the adverse federal effects is constitutionally overbroad.

If Canada ever attempts to treat a project’sgreenhouse gas emissions as an effect within federal jurisdiction, then whether an individual project’s greenhouse gas emissions, incontext of the global scale of the climate crisis, may cause non-trivial changes to the environment is best assessed through case-specificjudicial review. Finally, the doctrine of interjurisdictional immunity does not apply.

Characterizing a project as “provincial” is not a basis toreject the application of federal environmental assessment legislation — provincial works or undertakings are not shielded fromotherwise valid federal legislation. Cases Cited By Wagner C.J. Applied: Friends of the Oldman River Society v. Canada (Minister of Transport), (SCC), [1992] 1 S.C.R.3; considered: Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557; References re Greenhouse Gas PollutionPricing Act, 2021 SCC 11; referred to: Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031; R. v.

Hydro-Québec, (SCC), [1997] 3 S.C.R. 213; MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1S.C.R. 6; Taseko Mines Limited v. Canada (Environment), 2017 FC 1100, 15 C.E.L.R. (4th) 53; R. v. Morgentaler, (SCC), [1993] 3 S.C.R. 463; Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580; Quebec (Attorney General) v. Canada(Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693; Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3S.C.R. 189; Canadian Western Bank v.

Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Reference re Firearms Act (Can.), 2000 SCC 31,[2000] 1 S.C.R. 783; Reference re Genetic Non-Discrimination Act, 2020 SCC 17, [2020] 2 S.C.R. 283; Kitkatla Band v. BritishColumbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Reference re Assisted HumanReproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457; Murray-Hall v. Quebec (Attorney General), 2023 SCC 10; Reference re The FarmProducts Marketing Act, (SCC), [1957] S.C.R. 198; Nova Scotia Board of Censors v. McNeil, (SCC),[1978] 2 S.C.R. 662; Severn v.

The Queen (1878), 1878 CanLII 29 (SCC), 2 S.C.R. 70; Rogers Communications Inc. v. Châteauguay(City), 2016 SCC 23, [2016] 1 S.C.R. 467; Osborne v. Canada (Treasury Board), (SCC), [1991] 2 S.C.R. 69; McKay v.The Queen, (SCC), [1965] S.C.R. 798; Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6;Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58, [2019] 4 S.C.R. 228; Law Society of British Columbia v. Mangat, 2001SCC 67, [2001] 3 S.C.R. 113; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Reference re Securities Act,2011 SCC 66, [2011] 3 S.C.R. 837; Hodge v.

The Queen (1883), 9 App. Cas. 117; Liquidators of the Maritime Bank of Canada v.Receiver-General of New Brunswick, [1892] A.C. 437; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217;Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407; Global Securities Corp. v.British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; British Columbia v.

Imperial Tobacco Canada Ltd., 2005SCC 49, [2005] 2 S.C.R. 473; Reference re Environmental Management Act (British Columbia), 2019 BCCA 181, 434 D.L.R. (4th) 213,aff’d 2020 SCC 1, [2020] 1 S.C.R. 3; Quebec (Attorney General) v. Canada (National Energy Board), (SCC), [1994] 1S.C.R. 159; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), (SCC), [1987] 2 S.C.R. 59; Multiple Access Ltd.v. McCutcheon, (SCC), [1982] 2 S.C.R. 161; Bell Canada v. Quebec (Commission de la santé et de la sécurité dutravail), (SCC), [1988] 1 S.C.R. 749; Attorney General of Quebec v.

IMTT-Québec inc., 2019 QCCA 1598, 79 Admin.L.R. (6th) 1; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; R. v. CrownZellerbach Canada Ltd., (SCC), [1988] 1 S.C.R. 401; Interprovincial Co-operatives Ltd. v. The Queen, (SCC), [1976] 1 S.C.R. 477; Gould v. Yukon Order of Pioneers, (SCC), [1996] 1 S.C.R. 571; CanadianBroadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615; Krayzel Corp. v. Equitable Trust Co., 2016 SCC 18,[2016] 1 S.C.R. 273; R. v. Hinchey, (SCC), [1996] 3 S.C.R. 1128; R. v. Khill, 2021 SCC 37; Fowler v.

The Queen, (SCC), [1980] 2 S.C.R. 213; Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010;Attorney-General for Alberta v. Attorney-General for Canada, (UK JCPC), [1947] A.C. 503; Harper v. Canada(Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759; Reference reUpper Churchill Water Rights Reversion Act, (SCC), [1984] 1 S.C.R. 297. By Karakatsanis and Jamal JJ. (dissenting in part) Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Canadian Broadcasting Corp. v.

Quebec PoliceCommission, (SCC), [1979] 2 S.C.R. 618; Reference re The Farm Products Marketing Act, (SCC),[1957] S.C.R. 198; Murray-Hall v. Quebec (Attorney General), 2023 SCC 10; Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019SCC 58, [2019] 4 S.C.R. 228; Friends of the Oldman River Society v. Canada (Minister of Transport), (SCC), [1992] 1S.C.R. 3; R. v. Hydro-Québec, (SCC), [1997] 3 S.C.R. 213; Ontario v. Canadian Pacific Ltd., (SCC),[1995] 2 S.C.R. 1031; 114957 Canada Ltée (Spraytech, Société d’arrosage) v.

Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241;References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11; Quebec (Attorney General) v. Canada (National Energy Board), (SCC), [1994] 1 S.C.R. 159; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3S.C.R. 134; Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189; Reference re Firearms Act (Can.),2000 SCC 31, [2000] 1 S.C.R. 783; General Motors of Canada Ltd. v. City National Leasing, (SCC), [1989] 1 S.C.R.641; Canadian Pacific Railway Co. v.

Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367; Northwest FallingContractors Ltd. v. The Queen, (SCC), [1980] 2 S.C.R. 292; R. v. Crown Zellerbach Canada Ltd., (SCC), [1988] 1 S.C.R. 401; Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1028; Interprovincial Co-operatives Ltd. v. The Queen, (SCC), [1976] 1 S.C.R. 477; Fowler v. The Queen, (SCC), [1980] 2S.C.R. 213; Reference re Environmental Management Act, 2020 SCC 1, [2020] 1 S.C.R. 3; Ontario Hydro v.

Ontario (Labour RelationsBoard), (SCC), [1993] 3 S.C.R. 327; Reference re Genetic Non-Discrimination Act, 2020 SCC 17, [2020] 2 S.C.R. 283;

Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; Ward v. Canada (AttorneyGeneral), 2002 SCC 17, [2002] 1 S.C.R. 569; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; R. v. Morgentaler, (SCC), [1993] 3 S.C.R. 463; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC31, [2002] 2 S.C.R. 146; Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810; WestFraser Mills Ltd. v.

British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635; Canada (Ministerof Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Quebec (Attorney General) v. Moses, 2010 SCC 17,[2010] 1 S.C.R. 557; MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6; Daniels v. Canada(Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99; Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010; Mitchell v.

Peguis Indian Band, (SCC), [1990] 2 S.C.R. 85; Reference re NewfoundlandContinental Shelf, (SCC), [1984] 1 S.C.R. 86; Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23,[2016] 1 S.C.R. 467; Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536. Statutes and Regulations Cited Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to makeconsequential amendments to other Acts, S.C. 2019, c. 28,

Part 1. Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 2(1) “environmental effect”, 4(b), 5(1), 14, 16, 18, 21, 34, 37, 46 to 48,59(b). Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52, ss. 2(1) “designated project”, 4(1), 5, 8, 10, 14(2), 19 to 25, 52,53, 54(1), 66 to 72, 84(a). Canadian Navigable Waters Act, R.S.C. 1985, c. N-22. Comprehensive Study List Regulations, SOR/94-368. Constitution Act, 1867, ss. 91, 92, 92A, 94A, 95, 109, 132. Constitution Act, 1982, s. 35.

Environmental Assessment and Review Process Guidelines Order, SOR/84-467, ss. 2 “proposal”, 4, 6, 10, 11(b), 12. Fisheries Act, R.S.C. 1985, c. F-14, s. 2(1) “fish”, “fish habitat”. Impact Assessment Act, S.C. 2019, c. 28, s. 1,

preamble, ss. 1, 2 “designated project”, “direct or incidental effects”, “effects”, “effectswithin federal jurisdiction”, “environment”, “sustainability”, 6, 7, 8, 9(1), (7)(a), 10 to 16, 17(1), 18(1), 19(1), (2), 22, 24 to 29, 31(1),33(1), (2), 35, 36(1), 39(1), 51(1)(d), 59(1), (2), 60 to 64, 65(2), (3), (4), (5), (6), 81 “project”, 81 to 91, 92, 93, 95, 109(b), 144, Sch. 3. Indian Act, R.S.C. 1985, c. I-5. Information and Management of Time Limits Regulations, SOR/2019-283, ss. 3, 4, Sch. 1, ss. 19 to 24, Sch. 2, ss. 19 to 24. Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19.

Migratory Birds Convention Act, S.C. 1917, c. 18. Migratory Birds Convention Act, 1994, S.C. 1994, c. 22, s. 2(1) “migratory bird”. Physical Activities Regulations, SOR/2019-285. Regulations Designating Physical Activities, SOR/2012-147. Regulatory Impact Analysis Statement, SOR/2012-147, Canada Gazette,

Part II, vol. 146, No. 15, July 18, 2012. Regulatory Impact Analysis Statement, SOR/2019-285, Canada Gazette,

Part II, vol. 153, No. 17, August 21, 2019, pp. 5661, 5663. Rules of the Supreme Court of Canada, SOR/2002-156, r. 46(2). Species at Risk Act, S.C. 2002, c. 29, s. 2(1) “aquatic species”. Supreme Court Act, R.S.C. 1985, c. S-26, s. 62(3). Treaties and Other International Instruments Convention Between the United Kingdom and the United States of America for the Protection of Migratory Birds in Canada and theUnited States, August 16, 1916, [1917] Gr. Brit. T.S. No. 7 (Cd. 8476).

Protocol between the Government of Canada and the Government of the United States of America Amending the 1916 Conventionbetween the United Kingdom and the United States of America for the Protection of Migratory Birds in Canada and the United States,Can. T.S. 1999 No. 34. Authors Cited Beaudoin, Gérald A. “La protection de l’environnement et ses implications en droit constitutionnel” (1977), 23 McGill L.J. 207.

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Interpretation — Comparative Perspectives , vol. 1, National Reports . New York: Bloomsbury, forthcoming. Doelle, Meinhard. “CEAA 2012: The End Of Federal EA As We Know It?” (2012), 24 J.E.L.P. 1. Doelle, Meinhard. The Federal Environmental Assessment Process: A Guide and Critique . Markham, Ont.: LexisNexis, 2008. Doelle, Meinhard, and Chris Tollefson. Environmental Law: Cases and Materials , 3rd ed. Toronto: Thomson Reuters, 2019. Downey, Brendan, et al. “Federalism in the Patch: Canada’s Energy Industry and the Constitutional Division of Powers” (2020), 58 Alta. L. Rev. 273. Dwivedi, O. P., et al.

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Interpretation” (2022), 59 Alta. L. Rev. 919. Mathen, Carissima. Courts Without Cases: The Law and Politics of Advisory Opinions . Hart: New York, 2019. Northey, Rod. A Guide to Canada’s Impact Assessment Act , 2023 ed. Toronto: LexisNexis, 2023. Olszynski, Martin Z. “Impact Assessment”, in William A. Tilleman et al., eds., Environmental Law and Policy , 4th ed. Toronto: Emond Montgomery, 2020, 453. Oxford English Dictionary (online: www.oed.com), “change”. Suncor Energy Inc.

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No. 620 (QL), 2022 CarswellAlta 1175 (WL), in the matter of a Reference by the Lieutenant Governor in Council to the Court of Appeal of Alberta concerning the constitutionality of the Impact Assessment Act , S.C. 2019, c. 28, s. 1 , and of the Physical Activities Regulations , SOR/2019-285 . Appeal allowed in part. Christopher M. Rupar , Dayna Anderson , Kerry Boyd and James Elford , for the appellant. E. Bruce Mellett , Bradley Gilmour , Sean R. Assie and Randy Steele , for the respondent. Josh Hunter and Yashoda Ranganathan , for the intervener the Attorney General of Ontario.

Frédéric Perreault and Jean-François Beaupré , for the intervener the Attorney General of Quebec. Michael Hynes , for the intervener the Attorney General of New Brunswick. Charles Murray , for the intervener the Attorney General of Manitoba. J. Gareth Morley and Christopher H. Jones , for the intervener the Attorney General of British Columbia. Thomson Irvine , K.C. , and Noah Wernikowski , for the intervener the Attorney General of Saskatchewan. Written submissions only by Justin S. C. Mellor and Marc Lewis , for the intervener the Attorney General of Newfoundland and Labrador. Brooke Barrett and L.

Douglas Rae , for the intervener the Indian Resource Council. Ryan Lake and Geneviève Boulay , for the interveners the File Hills Qu’Appelle Tribal Council and the Pasqua First Nation. Martin Olszynski , for the intervener the World Wildlife Fund Canada.

Anna Johnston, for the interveners Nature Canada and the West Coast Environmental Law Association. Robert L. Martz and Anna Seefeldt, for the intervener the Canadian Association of Petroleum Producers. Bruce E. Hallsor, K.C., for the intervener the Canadian Taxpayers Federation. Eamon Murphy and Tara McDonald, for the intervener the Athabasca Chipewyan First Nation. Sean Sutherland, Maureen E. Killoran, K.C., and Brodie Noga, for the intervener the Business Council of Alberta. Anna McIntosh and Joshua Ginsberg, for the intervener the Ecojustice Canada Society.

Robert Reynolds, K.C., and Ed Picard, for the intervener the Woodland Cree First Nation. Mae Price and Tim Dickson, for the intervener the Mikisew Cree First Nation. Jean Lortie, Dominique Amyot-Bilodeau and Simon Bouthillier, for the intervener Hydro-Québec. Brett R. Carlson, Aidan N. Paul and Peter Banks, for the intervener the Canadian Constitution Foundation. Peter A. Gall, K.C., Justina Sebastiampillai and Meredith Shaw, for the interveners the Independent Contractors andBusinesses Association and the Alberta Enterprise Group. Sharon L. Mascher, Shaun C. Fluker and David V.

Wright, for the intervener the Canadian Association of Physicians for theEnvironment. Brandon Kain, Holly Kallmeyer and Asher Honickman, for the intervener the Advocates for the Rule of Law. David W.-L. Wu, for the intervener the Oceans North Conservation Society. Joseph F. Castrilli and Richard D. Lindgren, for the interveners the Canadian Environmental Law Association,Environmental Defence Canada Inc. and MiningWatch Canada Inc. Kylan S. Kidd and Talal Murtaza, for the intervener the Explorers and Producers Association of Canada. Jesse McCormick, Ryan Beaton and S.

Ronald Stevenson, for the intervener the First Nations Major Projects CoalitionSociety. David Robitaille and Marc Bishai, for the intervener Centre québécois du droit de l’environnement. John W. Gailus and Courtenay Jacklin, for the intervener the Lummi Nation. The judgment of Wagner C.J. and Côté, Rowe, Martin and Kasirer JJ. was delivered by The Chief Justice — I. Overview [1] Environmental protection is a fundamental value in Canadian society and one that is shared by Canadians fromcoast to coast.

The Canadian judiciary, in tandem with the other branches of government, has an important role to play in protecting the“right to a safe environment” (Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031, at para. 55 (emphasisdeleted), quoting the Law Reform Commission of Canada, Crimes Against the Environment (1985), Working Paper 44, at p. 8).

At thesame time, as the guardian of the Constitution, the judiciary has a vital role to play in ensuring that legislative efforts aimed atenvironmental protection comport with Canada’s constitutional framework. [2] Three decades ago, this Court acknowledged that the “protection of the environment has become one of the majorchallenges of our time” (Friends of the Oldman River Society v. Canada (Minister of Transport), (SCC), [1992] 1S.C.R. 3, at p. 16).

In a long line of cases since then, this Court has affirmed that both Parliament and the provincial legislatures have theability to enact laws to address various facets of environmental protection, including schemes of environmental assessment (see, e.g.,Oldman River; R. v. Hydro-Québec, (SCC), [1997] 3 S.C.R. 213; MiningWatch Canada v. Canada (Fisheries andOceans), 2010 SCC 2, [2010] 1 S.C.R. 6; Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557; References reGreenhouse Gas Pollution Pricing Act, 2021 SCC 11 (“References re GGPPA”)).

But this Court has also affirmed that each level ofgovernment must confine its legislative efforts to its own constitutional sphere. [3] This appeal is not about whether Parliament can enact legislation to protect the environment. It is clear thatParliament can do so under the heads of power assigned to it in the Constitution Act, 1867.

Rather, this appeal calls upon this Court toevaluate the constitutional validity of the specific legislative scheme Parliament has enacted to protect the environment from certainhuman activities: the Impact Assessment Act, S.C. 2019, c. 28, s. 1 (“IAA”), and the related Physical Activities Regulations, SOR/2019-285 (“Regulations”).

This Court must ensure that, in its laudable pursuit of environmental protection and sustainability, Parliament hasnot overstepped its constitutional limits. [4] I emphasize at the outset that, while environmental protection is a fundamental Canadian value, it must alwayscomport with the constitutional division of powers. Because environmental protection cuts across many different areas of constitutional

responsibility, it necessarily touches on both federal and provincial legislative powers. Given the “sweeping” nature of environmental regulation, division of powers disputes in the environmental context must be approached with “[g]reat sensitivity” (see Hydro-Québec , at para. 154 ). Respect for the division of powers drives the enactment of robust environmental protection legislation and facilitates cooperation between the two levels of government. [ 5 ] Having carefully considered the complex legislative scheme at issue in this appeal, I conclude that it is unconstitutional in part.

As I will explain, the scheme is essentially two schemes in one. First, a discrete portion of the scheme — contained in ss. 81 to 91 of the IAA — deals with projects carried out or financed by federal authorities on federal lands or outside Canada. In pith and substance, this portion of the scheme directs the manner in which federal authorities assess the significant adverse environmental effects that such projects may have.

This portion of the scheme is clearly intra vires . [ 6 ] Second, the balance of the scheme — made up of the IAA ’s remaining provisions and the Regulations — deals with “designated projects” as defined in the IAA . The pith and substance of this designated projects scheme is to assess and regulate designated projects with a view to mitigating or preventing their potential adverse environmental, health, social and economic impacts. In my view, Parliament has plainly overstepped its constitutional competence in enacting this designated projects scheme. This scheme is ultra vires for two overarching reasons.

First, it is not in pith and substance directed at regulating “effects within federal jurisdiction” as defined in the IAA because these effects do not drive the scheme’s decision-making functions. Second, I do not accept Canada’s contention that the defined term “effects within federal jurisdiction” aligns with federal legislative jurisdiction. The overbreadth of these effects exacerbates the constitutional frailties of the scheme’s decision-making functions. [ 7 ] Environmental protection remains one of today’s most pressing challenges.

To meet this challenge, Parliament has the power to enact a scheme of environmental assessment. Parliament also has the duty, however, to act within the enduring division of powers framework laid out in the Constitution. [ 8 ] These reasons will proceed as follows. I will begin by reviewing the evolution of federal environmental assessment as well as the structure and operation of the impugned scheme. With this background in mind, I will summarize the reasons of the Court of Appeal of Alberta and frame the issue on appeal.

I will then analyze the constitutional validity of the scheme and, finally, address two additional discrete issues raised in this appeal. II. The Evolution of Federal Environmental Assessment A. The Nature and Purpose of Environmental Assessment [ 9 ] For decades, both the federal and provincial governments have engaged in environmental assessment. Canada’s first environmental assessments were carried out in the 1970s, and by the 1990s, most Canadian jurisdictions had enacted mandatory environmental assessment legislation (M. Doelle and C.

Tollefson, Environmental Law: Cases and Materials (3rd ed. 2019), at p. 593). Before I canvass the evolution of Canadian legislation in this area, it will be useful to consider the nature and purpose of environmental assessment. [ 10 ] In Oldman River , this Court described environmental assessment as “a planning tool that is . . . an integral component of sound decision-making” (p. 71). The basic idea of environmental assessment is that “certain proposed activities should be scrutinized in advance from the perspective of their possible environmental consequences” (J.

Benidickson, Environmental Law (5th ed. 2019), at p. 257). Accordingly, environmental assessment processes are prospective in nature; they “seek to anticipate, prevent or reduce environmental impacts of proposed new activities rather than try to manage the impacts of existing activities” (Doelle and Tollefson, at p. 593; see also O. P.

Dwivedi et al., Sustainable Development and Canada: National & International Perspectives (2001), at p. 157). [ 11 ] As many of the interveners in this appeal highlighted, the environment is of concern not only to the federal government but also to the provincial governments and to communities from coast to coast. There exists a great diversity of provincial environmental assessment legislation across the country. At the federal level, environmental assessment legislation has evolved substantially over the last four decades. I turn now to this evolution. B.

A History of Federal Environmental Assessment [ 12 ] As a prelude to evaluating the constitutional validity of the scheme, it will be helpful to situate it within the broader history of federal environmental assessment frameworks. In the sections that follow, I canvass the evolution of federal environmental assessment since the 1980s. Two key trends emerge from this discussion. [ 13 ] First, over time, the federal environmental assessment process has undergone a dramatic shift from employing a decision-based trigger to employing an effects- or project-based trigger.

The first iterations of the process required an environmental assessment when the federal government had a decision-making responsibility in respect of a particular activity. This responsibility arose under separate federal legislation, such as provisions of the Fisheries Act , R.S.C. 1985, c. F-14 , or Navigable Waters Act , R.S.C. 1985, c. N-22 , related to the granting of permits.

In contrast, more recent iterations of the environmental assessment process have applied on the basis of the types of projects involved or the types of effects these projects may cause. [ 14 ] The second key trend is evident from the title of the impugned statute: Impact Assessment Act . Whereas previous federal enactments focused on environmental effects specifically, the current scheme focuses on “impacts” of various kinds — including but not limited to environmental impacts.

Although the “environment” was already understood broadly under previous schemes, this recalibrated focus makes it clear that social, health and economic impacts are also included in the assessment process. [ 15 ] The federal environmental assessment process traces its roots back to 1973, when the federal Cabinet approved a recommendation for an Environmental Assessment and Review Process that was to apply to “all federal development proposals” (Dwivedi et al., at p. 157).

Then, in 1984, the federal government issued the Environmental Assessment and Review Process Guidelines Order , SOR/84-467 (“Guidelines Order”), through an order in council, to set out and clarify roles, responsibilities and procedures under the Environmental Assessment and Review Process (Dwivedi et al., at p. 158). I will begin my review of the federal assessment schemes

with this Guidelines Order.

(1) The 1984 Guidelines Order [ 16 ] The goal of the Guidelines Order was to ensure that the environmental effects of all proposals for which the federal government had a decision-making responsibility were considered fully and as early in the planning process as possible (J. B. Hanebury, “Environmental Impact Assessment in the Canadian Federal System” (1991), 36 McGill L.J. 962, at p. 969).

The Guidelines Order applied to any proposed “initiative, undertaking or activity for which the Government of Canada has a decision making responsibility” ( s. 2 “proposal”). [ 17 ] Under the Guidelines Order’s approach, a federal department would conduct an initial assessment of a proposal for which it was the decision-making authority. If the department determined that the project was likely to have significant environmental effects, then it would refer the project to the Minister of the Environment, who in turn would request an independent assessment from the Federal Environmental Assessment and Review Office.

That office would establish a panel, which would ultimately submit an advisory report (Dwivedi et al., at p. 158; see also Federal Environmental Assessment Review Office, The Federal Environmental Assessment and Review Process (1987), at pp. 2-4). [ 18 ] While there was initially some debate as to the binding force and constitutional validity of the Guidelines Order, this Court held in Oldman River that it was mandatory in nature and intra vires Parliament.

Justice La Forest, writing for the Court on the vires issue, interpreted the Guidelines Order as applying where the federal government has “an affirmative regulatory duty pursuant to an Act of Parliament which relates to the proposed initiative, undertaking or activity” (p. 47). He reasoned that “[i]t cannot have been intended that the Guidelines Order would be invoked every time there [was] some potential environmental effect on a matter of federal jurisdiction” (p. 47). Rather, the Guidelines Order “has merely added to the matters that federal decision makers should consider” (p. 71).

(2) Canadian Environmental Assessment Act (1992) [ 19 ] The Canadian Environmental Assessment Act , S.C. 1992, c. 37 (“ CEAA 1992 ”), was enacted in 1992 and came into force in 1994 and 1995.

Like the Guidelines Order, the operation of the CEAA 1992 was triggered by exercises of federal decision- making responsibility, including where the federal government proposed a project, where it provided financial assistance to a project, where the project involved federal lands, or where the federal government issued a permit or authorization for a project (s. 5(1)). [ 20 ] Although there were similarities between the Guidelines Order and the CEAA 1992 , the latter nonetheless introduced major changes to the federal environmental assessment regime.

A key innovation of the CEAA 1992 was that the bounds and steps of the federal environmental assessment regime were now set out in legislation. Placing the federal scheme on statutory footing made the environmental assessment process “less susceptible to interference by government without the approval of Parliament” (Doelle and Tollefson, at p. 597; see also R. B. Gibson, “The Major Deficiencies Remain: A Review of the Provisions and Limitations of Bill C-19,

an Act to Amend the Canadian Environmental Assessment Act ” (2001), 11 J.E.L.P. 83, at p. 85). [ 21 ] The scope of environmental assessment under the CEAA 1992 was broad. The CEAA 1992 defined “environmental effect” as including “any change that the project may cause in the environment” as well as any health and socioeconomic effects of such a change ( s. 2(1) ). Assessments considered a variety of factors, including comments from the public, mitigation measures, the purpose of the project and alternative ways of carrying out the project (s. 16).

These assessments could take one of four forms: screening, comprehensive study, panel review and mediation (s. 14; see also A. Koehl, “EA and Climate Change Mitigation” (2010), 21 J.E.L.P. 181, at p. 185). Projects that did not require a specific federal decision could be referred to a mediator or review panel if the Minister of the Environment was of the opinion that the project might cause significant adverse effects in another province, outside of Canada or on federal lands (ss. 46 to 48).

(3) Canadian Environmental Assessment Act, 2012 [ 22 ] The CEAA 1992 was repealed and replaced in 2012 as part of omnibus budget legislation ( Jobs, Growth and Long- term Prosperity Act , S.C. 2012, c. 19 (assented to on June 29, 2012)). In at least five respects, the Canadian Environmental Assessment Act, 2012 , S.C. 2012, c. 19, s. 52 (“ CEAA 2012 ”), represented the next generation of federal environmental assessment. [ 23 ] First, the CEAA 2012 introduced a new triggering process that dictated when that statute applied (M.

Doelle, “CEAA 2012: The End Of Federal EA As We Know It?” (2012), 24 J.E.L.P. 1, at p. 3). The CEAA 2012 was the first federal assessment scheme that involved a project-based approach. It applied to projects that were designated by regulations or ministerial order ( ss. 2(1) “designated project”, 14(2) and 84(a); Regulations Designating Physical Activities , SOR/2012-147 ).

This project-based scheme created an “out unless included” model; only designated projects were subject to the CEAA 2012 , and all other projects were excluded. [ 24 ] Second, the CEAA 2012 granted the Canadian Environmental Assessment Agency broad discretion to screen designated projects for an assessment (s. 10). As a result, not all designated projects were automatically subject to an assessment. Indeed, far fewer environmental assessments were conducted under the CEAA 2012 than under the former scheme (Doelle and Tollefson, at pp. 621-22; R. B.

Gibson, “In full retreat: the Canadian government’s new environmental assessment law undoes decades of progress” (2012), 30 Impact Assess. and Proj. Apprais. 179, at pp. 181-82). [ 25 ] Third, the CEAA 2012 significantly narrowed the scope of federal environmental assessments. The CEAA 2012 limited the definition of “environmental effects” to a small number of environmental components listed in s. 5.

Some commentators have written that this was perhaps the most fundamental change to the federal environmental assessment process (Doelle, at p. 11; Gibson (2012), at p. 182). [ 26 ] Fourth, the CEAA 2012 reinvented the decision-making phase of the environmental assessment process. Following the assessment, the decision maker (typically the Minister of the Environment, the National Energy Board or the Canadian Nuclear Safety Commission) would decide whether the project was likely to cause significant adverse environmental effects (s. 52(1)).

If it was, then the matter would be referred to the Governor in Council to decide whether the effects were justified in the circumstances (s. 52(2)

to (4)). Conditions could be imposed if the project was not likely to cause significant adverse environmental effects or if the significant adverse environmental effects it was likely to cause were justified in the circumstances (s. 53). Section 52(1) and (4), which grant the authority to make the decisions, did not enumerate the factors that could or had to be considered in the exercise of that authority. [ 27 ] Finally, the CEAA 2012 contained a secondary regime for projects carried out on federal lands or outside Canada (ss. 66 to 72; M. Z. Olszynski, “Impact Assessment”, in W. A.

Tilleman et al., eds., Environmental Law and Policy (4th ed. 2020), 453, at p. 473). The provisions in question did not set out a formal assessment process. Rather, the relevant federal authorities had to be satisfied that no significant adverse environmental effects were likely or, if they were likely, that they were justified in the circumstances.

This process harkened back to the Guidelines Order and the CEAA 1992 , which similarly required federal decision makers to consider adverse environmental effects in discharging their responsibilities in respect of certain activities. [ 28 ] Many of the significant innovations introduced by the CEAA 2012 have been retained in the impugned statute.

I note, as did the court below, that the provinces did not challenge the constitutionality of the CEAA 2012 , and the only challenge to its constitutionality was addressed briefly and in the alternative ( 2022 ABCA 165 , 470 D.L.R. (4th) 1, at para. 93 ; R.F., at para. 45; but see Taseko Mines Limited v. Canada (Environment) , 2017 FC 1100 , 15 C.E.L.R. (4th) 53, at para. 6 ).

(4) IAA [ 29 ] The IAA was the result of a four-year review of the federal environmental assessment process. The federal government established the Expert Panel for the Review of Environmental Assessment Processes, which recommended a major overhaul of the CEAA 2012 ( Building Common Ground: A New Vision for Impact Assessment in Canada (2017), at pp. 2-7; Olszynski, at p. 468; see also Natural Resources Canada, Environmental and Regulatory Reviews: Discussion Paper (2017) (“2017 Discussion Paper ”), at p. 7). Whether the IAA actually reflects the recommendations for reform has, however, been questioned (see, e.g., Olszynski, at p. 469). [ 30 ] The IAA was enacted as

Part 1 of An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts , S.C. 2019, c. 28 , assented to June 21, 2019. The Governor in Council has made regulations under the IAA , including the Regulations at issue in this appeal. [ 31 ] I turn now to the basic architecture and operation of the IAA and the Regulations. III. The Legislative Scheme [ 32 ] The IAA and the Regulations establish a complex information gathering and regulatory scheme.

To understand the scheme, one must have a grasp of both its general framework and its operation. I agree with the Court of Appeal’s observation that the IAA “is essentially two acts in one” (para. 190). The bulk of the IAA covers physical activities that are designated as “designated projects”. Sections 81 to 91 of the IAA , however, establish a secondary scheme covering activities on federal lands or outside Canada that are not designated as “designated projects”. [ 33 ] I will begin with the “designated projects” scheme and provide an overview of its three-phase impact assessment process.

I will then turn to ss. 81 to 91 and summarize the operation of this secondary scheme. A. The “Designated Projects” Regulatory Scheme [ 34 ] Like its predecessor, the IAA applies to “designated projects”, which are defined in s. 2 as “physical activities . . . carried out in Canada or on federal lands [that] are designated by regulations made under paragraph 109 (

b) or designated in an order made by the Minister under subsection 9(1)”. This includes “any physical activity that is incidental to those physical activities” ( s. 2 ). [ 35 ] Pursuant to s. 109(b), the Governor in Council has made the Regulations , which are sometimes called the “Project List” because they set out a list of designated physical activities. This Project List includes activities that, in the government’s view, are major projects with the greatest potential for adverse effects on areas of federal jurisdiction related to the environment (Regulatory Impact Analysis Statement, SOR/2019-285 , Canada Gazette ,

Part II, vol. 153, No. 17, August 21, 2019). [ 36 ] In addition, pursuant to s. 9(1), the Minister may “designate a physical activity that is not prescribed by regulations . . . if, in his or her opinion, either the carrying out of that physical activity may cause adverse effects within federal jurisdiction or adverse direct or incidental effects” (two defined terms, to which I will return), or public concerns related to those effects warrant the designation.

The IAA imposes some limitations on ministerial designation, including that it must occur before the carrying out of the physical activity has substantially begun (s. 9(7)(a)). [ 37 ] The impact assessment process for designated projects can be divided into three main phases: the planning phase, the impact assessment phase and the decision-making phase. These phases are followed by ongoing regulation in the form of monitoring, binding conditions and follow-up programs. Below, I provide a broad overview of each phase.

(1) The Planning Phase [ 38 ] The planning phase focuses on initial information gathering. The introduction of this phase represented a major change from previous practice (Expert Panel, at pp. 58-61; R. Northey, A Guide to Canada’s Impact Assessment Act (2023 ed.), at pp. 10-14). [ 39 ] The proponent of a designated project must provide the Impact Assessment Agency of Canada (“Agency”) with an initial project description that includes the information prescribed by regulations (s. 10(1); Information and Management of Time Limits Regulations , SOR/2019-283 , Sch. 1).

The Agency then consults with a number of parties — including Indigenous groups, other jurisdictions and the public — and provides the proponent with a

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