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Constitution - Environment. Reference re Impact Assessment Act
In Reference re Impact Assessment Act (SCC, 2023) the Supreme Court of Canada considered (and largely allowed) a constitutional division-of-powers challenge to the federal Impact Assessment Act.
In these quotes the court reviews the 'environment' constitutional head of power, particularly as it is not an enumerated head - either federally and provincially:(2) The Environmental Context
(a) The “Environment” Is an Aggregate of Matters
[114] 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. This Court has recognized that the environment is a “constitutionally abstruse matter which does not comfortably fit within the existing division of powers without considerable overlap and uncertainty” (Oldman River, at pp. 16 and 63-64; see also Hydro-Québec, at para. 86). Indeed, Professors Hogg and Wright observed that the environment is an “aggregate of matters” (§ 30:31; see also K. Harrison, Passing the Buck: Federalism and Canadian Environmental Policy (1996), at pp. 32-33).
[115] In Oldman River, Justice La Forest explained that environmental management “cuts across many different areas of constitutional responsibility . . . [and] could never be treated as a constitutional unit under one order of government . . . because no system in which one government was so powerful would be federal” (pp. 63‑64, quoting D. Gibson, “Constitutional Jurisdiction over Environmental Management in Canada” (1973), 23 U.T.L.J. 54, at p. 85; see also B. Downey et al., “Federalism in the Patch: Canada’s Energy Industry and the Constitutional Division of Powers” (2020), 58 Alta. L. Rev. 273, at pp. 286 and 312; J. Leclair, “L’étendue du pouvoir constitutionnel des provinces et de l’État central en matière d’évaluation des incidences environnementales au Canada” (1995), 21 Queen’s L.J. 37, at pp. 39‑40; G. A. Beaudoin, “La protection de l’environnement et ses implications en droit constitutionnel” (1977), 23 McGill L.J. 207, at p. 224).
[116] Accordingly, neither level of government has exclusive jurisdiction over the whole of the “environment” or over all “environmental assessment” (Oldman River, at p. 65; Hydro-Québec, at para. 59, per Dickson C.J. and Iacobucci J., dissenting; Reference re Environmental Management Act (British Columbia), 2019 BCCA 181, 434 D.L.R. (4th) 213 (“Reference re Environmental Management Act (BCCA)”), at para. 93, aff’d 2020 SCC 1, [2020] 1 S.C.R. 3). Rather, this Court has acknowledged that both levels of government can legislate in respect of certain aspects of environmental protection, including certain aspects of the environmental assessment of physical activities (Moses; Reference re Environmental Management Act (BCCA), at para. 93). Shared federal and provincial responsibility for environmental impact assessment is “neither unusual nor unworkable” (Quebec (Attorney General) v. Canada (National Energy Board), 1994 CanLII 113 (SCC), [1994] 1 S.C.R. 159, at p. 193). Rather, it is a central feature of environmental decision making in Canada (S. A. Kennett, “Oldman and Environmental Impact Assessment: An Invitation for Cooperative Federalism” (1992), 3 Const. Forum 93, at p. 94).
[117] In Moses, for example, this Court recognized that both the federal and provincial governments can, in certain circumstances, validly exercise legislative jurisdiction over the same activity or project. Justice Binnie, writing for the majority, explained that, although a mining project considered in isolation might seem to fall within provincial jurisdiction over natural resources, a federal permit would nonetheless be required if that project placed fish habitat at risk (para. 36). Put simply, “[t]he mining of non-renewable mineral resources aspect falls within provincial jurisdiction, but the fisheries aspect is federal” (para. 36).
[118] 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 (References re GGPPA, at paras. 129-30; Desgagnés Transport, at para. 84; Hodge, at p. 130; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), 1987 CanLII 72 (SCC), [1987] 2 S.C.R. 59, at p. 65; Canadian Western Bank, at para. 30; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at paras. VI-2.41 to VI-2.43).
[119] Many significant legislative matters cannot be reduced to one discrete subject. Indeed, Canadian governments must address complex and multifaceted issues that may fall within multiple heads of power (Downey et al., at p. 282). The double aspect doctrine explains how laws enacted by both the federal and provincial levels of government may validly regulate the same fact scenario from different perspectives, pursuant to their respective heads of power. Overlaps of this nature are an inevitable and legitimate feature of the Canadian federal system (Desgagnés Transport, at para. 83; Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161, at pp. 180‑81; Canadian Western Bank, at paras. 36 and 42).
[120] 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.
[121] 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 (Reference re Securities Act, at para. 66; Desgagnés Transport, at paras. 82-83; Reference re Assisted Human Reproduction Act, at para. 268-71, per LeBel and Deschamps JJ.; Oldman River, at pp. 71-72; Brun, Tremblay and Brouillet, at para. VI-2.41). 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. In other words, both levels of government have the exclusive power to legislate within their respective jurisdictions, even if by doing so they both regulate the same fact situation (Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), 1988 CanLII 81 (SCC), [1988] 1 S.C.R. 749, at p. 766).
[122] 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. This “more flexible view of federalism . . . accommodates overlapping jurisdiction and encourages intergovernmental cooperation” (Reference re Securities Act, at para. 57; see also Reference re Pan‑Canadian Securities Regulation, at para. 17; Rogers Communications, at para. 85). However, “[w]hile flexibility and cooperation are important to federalism, they cannot override or modify the separation of powers” or “make ultra vires legislation intra vires” (Reference re Securities Act, at paras. 61‑62; Reference re Pan‑Canadian Securities Regulation, at para. 18; Rogers Communications, at para. 39). The division of federal and provincial powers, including more recent additions such as exclusive provincial jurisdiction over non-renewable natural resources under s. 92A, is the product of negotiation and compromise. Courts may not, under the guise of cooperative federalism, “erode the constitutional balance inherent in the Canadian federal state” (Reference re Securities Act, at para. 62).
(b) The Source and Scope of Jurisdiction Over Aspects of the Environment
[123] The “constitutionally abstruse” nature of the environment means that legislative jurisdiction over the environment must be rooted in specific heads of power (Oldman River, at pp. 64‑65; Hydro-Québec, at para. 154, quoting W. R. Lederman, “Unity and Diversity in Canadian Federalism: Ideals and Methods of Moderation” (1975), 53 Can. Bar Rev. 597, at p. 610; Attorney General of Quebec v. IMTT-Québec inc., 2019 QCCA 1598, 79 Admin. L.R. (6th) 1, at paras. 223-26). Since the heads of power differ in their nature and scope, the extent to which a level of government may address environmental concerns may vary from one head of power to another (IMTT, at para. 55; Oldman River, at p. 67).
[124] Some heads of power relate to activities — for example, Parliament can legislate in respect of pollution from ships pursuant to its jurisdiction over the activity of navigation and shipping (s. 91(10); Oldman River, at pp. 67-68; Desgagnés Transport, at para. 44). It can similarly legislate in respect of environmental issues arising from interprovincial works and undertakings, such as interprovincial railways or pipelines (ss. 91(29) and 92(10)(a); Oldman River, at p. 65; Reference re Environmental Management Act (BCCA), at para. 11). Provinces can legislate in respect of local works and undertakings, property and civil rights in the province, and matters of a local nature (s. 92(10), (13) and (16)).
[125] Other heads of power relate to what has been described as “management of a resource” — for example, in Oldman River, Justice La Forest viewed the fisheries power under s. 91(12) in this light (pp. 67-68). As another example, provinces can exclusively make laws in respect of non-renewable natural resources, forestry resources and electrical energy pursuant to s. 92A (see A. R. Lucas and C. Sharvit, “Constitutional Powers”, in A. R. Lucas and R. Cotton, eds., Canadian Environmental Law (3rd ed. (loose-leaf)), 3‑1, at § 3.13).
[126] These distinctions serve as convenient descriptors rather than fully explaining the scope of a head of power. Indeed, the same head of power can cover both activities and resources, depending on the fact situation. For example, the provinces’ jurisdiction over natural resources, forestry resources and electrical energy could be viewed as relating to activities when it is exercised to regulate the activity of developing these resources on provincial lands. Conversely, Parliament’s power to legislate in respect of navigation and shipping could be viewed as being in relation to “management of a resource” when it is exercised to regulate the impact of the construction of a bridge or dam on navigable waters (Oldman River; S. A. Kennett, “Federal Environmental Jurisdiction After Oldman” (1993), 38 McGill L.J. 180, at pp. 189‑91). I also note that some heads of power, such as the criminal law power and the POGG power, have been used in relation to specific environmental matters (e.g., Hydro-Québec; References re GGPPA).
[127] The “activities” and “management of a resource” descriptors help to explain how a particular project may be validly regulated by both levels of government. An activity that seems to fall within a head of power assigned to one level of government may nevertheless have certain aspects — such as its impacts on certain resources — that can be regulated pursuant to a head of power assigned to the other level of government. Thus, for example, while the activity of constructing a mine falls primarily within provincial jurisdiction, the construction’s impacts on resources such as fisheries and navigable waters are aspects that may be regulated pursuant to federal legislative competence (Moses, at para. 36).
[128] In Oldman River, Justice La Forest cautioned that it is unhelpful to describe a project as a “provincial project” or as a project “primarily subject to provincial regulation”, as this erroneously suggests that such projects are shielded from otherwise valid federal legislation (p. 68). I agree that it is important to avoid the impression that some projects fall within an enclave of exclusivity. Nonetheless, while both levels of government may have the ability to regulate different aspects of a given project, one level’s jurisdiction may be broader than the other’s. Recognizing that an activity is primarily regulated by one level of government highlights the fact that the pith and substance of any legislation enacted by the other level of government must be tailored to the aspects of the project that properly fall within the latter’s jurisdiction. At paras 129-206 the court applies the environmental division-of-powers to the 'designated projects' aspect of the IAA, finding it to be ultra vires. At paras 207-211 it briefly reviews the 'non-designated project on federal lands or outside Canada' aspect and finds it intra vires.IX. Conclusion
[215] In my view, the reference questions should be answered in the affirmative. The federal impact assessment scheme, consisting of the Impact Assessment Act and the accompanying Physical Activities Regulations, is unconstitutional in part. Although the process set forth in ss. 81 to 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. Accordingly, the appeal is allowed in part.
[216] As I stated at the outset, there is no doubt that Parliament can enact impact assessment legislation to minimize the risks that some major projects pose to the environment. This scheme plainly overstepped the mark. But it remains open to Parliament to design environmental legislation, so long as it respects the division of powers. Moreover, it is open to Parliament and the provincial legislatures to exercise their respective powers over the environment harmoniously, in the spirit of cooperative federalism. While it is not for this Court to direct Parliament as to the way forward, I note “the growing practice of resolving the complex governance problems that arise in federations . . . by seeking cooperative solutions that meet the needs of the country as a whole as well as its constituent parts” (Reference re Securities Act, at para. 132). Through respect for the division of powers in Canada’s constitutional structure, both levels of government can exercise leadership in environmental protection and ensure the continued health of our shared environment (Hydro-Québec, at para. 154).
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