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

AuthorAnna Johns ton
 5
Federal Jurisdiction and the Impact
Assessment Act: Trojan Horse or Rational
Ecological Accounting?
Anna Johnston
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.
     98
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.
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

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