Feds install temporary impact review process pending new law prompted by top court

OTTAWA — The Impact Assessment Agency of Canada will revisit 23 projects it is currently reviewing to ensure there is clear federal jurisdiction, after a Supreme Court decision found parts of the law strayed into provincial territory, Environment Minister Steven Guilbeault said Thursday.

But Guilbeault dismissed outright a new judicial review request Ontario filed on Tuesday, which asked the Federal Court to nullify the Impact Assessment Act entirely as a result of the court opinion.

"What I'm saying is that the assessment act is still standing, and the Supreme Court didn't say that we couldn't use the assessment act anymore," Guilbeault said at a news conference in Ottawa.

"And in fact, the Supreme Court reiterated the fact that the federal government can and should be doing impact assessments. But it said we had to do so within federal jurisdiction."

The Impact Assessment Agency of Canada was formed in 2019 after legislation passed that established a new process for federal reviews of the environmental and social impacts of proposed major projects, such as pipelines, interprovincial highways and airports.

The aim of that law was to make the review process faster and more transparent.

Multiple provinces said they were against the legislation from the start, and several premiers said it threatened national unity. Alberta asked its appeals court to review the law, and that court found the law to be unconstitutional.

The federal government then appealed that finding at the Supreme Court of Canada, which delivered its opinion on Oct. 13 saying parts of the law did contravene Canada's constitutional division of powers.

Chief Justice Richard Wagner, who wrote for the majority in the 5-2 opinion, said the law as it was written could allow the federal government to make decisions about projects that were wholly within provincial jurisdiction.

However, Wagner also said it was possible that some provincial projects could be seen as having implications that fell under federal jurisdiction.

An earlier Supreme Court decision had held up the federal carbon pricing scheme, which applies a price on greenhouse-gas emissions in provinces that don't have an equivalent scheme of their own.

The court said in that case, which was brought by Alberta, Saskatchewan and Ontario, that emissions do not stop at provincial boundaries, so federal jurisdiction applies.

Guilbeault was not entirely clear about how projects that fall outside federal jurisdiction will proceed during the time before an updated act is introduced.

"Projects are assessed on a case-by-case basis, so we would have to look at a specific project and determine if it's not within federal jurisdiction," he said.

"Then, obviously, we would turn, probably, to the provincial authority to ensure that there is proper assessment that is being done."

Guilbeault could not say yet exactly how the law would be updated to comply with the court.

But he said one aspect that needs to be tightened is the part of the act that addresses whether a project is in the public interest. He noted that the court found the language around that to be too broad.

The power the law gives to federal environment ministers to designate projects for review under the act may also currently capture things that are outside Ottawa's scope, Guilbeault added, and he said that will be adjusted.

Only five projects have been designated under that provision since 2019, and Guilbeault said that he himself hasn't designated any in the two years he has been environment minister.

He said he is putting a pause on that and will not designate any new projects until the law is updated.

One of those five designated projects is an Ontario highway northwest of Toronto that was designated for review in 2021, prior to Guilbeault taking over the role.

The minister has also been asked to consider designating a project that would build a spa at Ontario Place in Toronto, though no decision has yet been made.

The Ontario government asked the Federal Court on Tuesday to declare the whole Impact Assessment Act out of bounds, with specific reference to those two projects.

Ontario Attorney General Doug Downey said the federal law was impeding Ontario's construction and growth.

Guilbeault said on Thursday that the agency isn't even involved in the Ontario Place project yet, and added that delays from the Ontario government are to blame for the Highway 413 project not proceeding yet.

"I think the Supreme Court, in their opinion, were very clear as to what the federal government can do when it comes to impact assessment, and the Ontario government is saying, 'You can't do anything, and you're putting all these projects on hold,'" he said.

That is "simply not true," he argued.

"We're not involved in Ontario Place. It's ridiculous. Like, it's a fabrication. Highway 413, we've been waiting for two years for the Ontario government to provide the necessary documents so that the evaluation of the project can start. We're not the ones holding off."

Guilbeault said he couldn't say how long it will take to introduce the updated law, but said the federal Liberals will work on it as fast as they can.

This report by The Canadian Press was first published Oct. 26, 2023.

Mia Rabson, The Canadian Press