Federal Jurisdiction and the Impact Assessment Act: Trojan Horse or Rational Ecological Accounting?

• Author: Anna Johns ton
• Pages: 97-118

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Federal Jurisdiction and the Impact

Assessment Act: Trojan Horse or Rational

Ecological Accounting?

Anna Johnston

A. INTRODUCTION

Federal jurisdiction over impact assessment (IA) remains unsettled

despite the 1992 decision Friends of the Oldman River Society v Canada

(Minister of Transport).1 This seminal case provided much-needed guid-

ance on the extent of federal power to assess the impacts of proposed

undertakings that were federally regulated or under federal constitu-

tional authority. However, the case le important questions unanswered

respecting the extent of federal authority at the triggering, informa-

tion-gathering and analysis, and decision-making stages of assessment.

By taking the bold step from environmental assessment (EA) to an IA

model that considers a broader range of positive and negative environ-

mental, social, health, and economic eects and their distribution, the

Impact Assessment Act (IAA)2 has raised new questions about the limits

of federal jurisdiction to carry out assessments of proposed undertak-

ings or activities covered by the Act. Indeed, in September 2019, Alberta’s

Lieutenant Governor in Council referred two constitutional questions to

the Alberta Court of Appeal respecting the constitutional validity of the

IAA and the Physical Activities Regulations,3 which at the time of writing

were still before the court.

1 [1992] 1 SCR 3 [Oldman].

2 SC 2019, c 28, s 1, s 22.

3 Judicature Act, OC 160/2019, s 26; Physical Activities Regulations, SOR/2019-285.

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This chapter explores key questions respecting federal jurisdiction

with regard to the IAA, beginning with a discussion of the constitu-

tional division of powers in Canada, federalism and Canada’s political

constitution, and the cooperative federalism model that has gained

traction in the courts in recent decades. Having set out the federalism

context, the chapter then lays out the key issues respecting federal juris-

diction over project-level assessment and examines the IAA in light of

relevant case law and the academic literature. In doing so, it analyzes

federal jurisdiction in three distinct stages of IA: triggering, informa-

tion gathering and analysis, and decision making.

B. CANADA’S UNIQUE MODEL OF FEDERALISM

1) The Division of Constitutional Powers

Neither the provinces nor the federal government4 has exclusive juris-

diction over environmental matters. The environment is not explicitly

enumerated under the Constitution Act, 18675 (Constitution) and has been

described as a “constitutionally abstruse matter which does not com-

fortably t within the existing division of powers without consider-

able overlap and uncertainty.”6 To illustrate, the federal government

has power over trade and commerce, navigation and shipping, the sea

coast7 and inland sheries, Indigenous peoples and their lands, and

4 The federal Parliament and provincial legislatures are commonly referred to as “orders”

of government as the federal and provincial governments are generally considered

equal in status: Peter W Hogg, Constitutional Law of Canada, 5th ed supplemented

(Toronto: Thomson Reuters, 2016) at 5.17.

5 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 [Constitution Act].

6 Oldman, above note 1 at 64.

7 Canada has claimed a twelve-mile territorial sea (Territorial Sea and Fishing Zones

Act, RSC 1985, c T-8, s 3). In Reference re Ownership of O Shore Mineral Rights (British

Columbia), [1967] SCR 792, the Supreme Court of Canada held that the boundaries of

British Columbia end at the low watermark. As a result, British Columbia does not

have any property rights in or rights to explore or exploit the continental shelf. Thus,

the federal government owns the seabed of the territorial sea and has legislative juris-

diction over it, including the resources of the continental shelf, as well as the right to

explore and exploit those resources. Hogg stated that this holding likely applies to the

Atlantic Canada provinces, although Newfoundland and Labrador may be an exception

because it joined Canada in 1949 and claims that it had acquired international status

and therefore rights over its territorial sea, which it claims to retain (Hogg, above

note 4 at 30.7–9). Other exceptions include inland waters, harbours, bays, estuaries,

and other waters lying “between the jaws of the land,” including the water between