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Constitution - References. Sierra Club Canada Foundation v. Canada (Environment and Climate Change)
In Sierra Club Canada Foundation v. Canada (Environment and Climate Change) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of two JRs, one which "challenged the validity of a report resulting from a regional assessment of offshore oil and gas exploratory drilling, conducted under the Impact Assessment Act" and the other to "quash a regulation made under the Act that exempts certain exploratory drilling activities from a number of impact assessment requirements".
Here the court considers the role and status of Supreme Court of Canada references, here constitutional:[2] After our Court heard this appeal, the Supreme Court of Canada released its decision on the constitutionality of the Act: Reference re Impact Assessment Act, 2023 SCC 23 [IAA Reference]. The Supreme Court opined that the federal impact assessment scheme, consisting of the Act and its accompanying Physical Activities Regulations, S.O.R./2019-285 (Activities Regs), is unconstitutional in part.
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[67] In principle, the Supreme Court’s answer to a reference is advisory and non-binding; in practice, courts follow these rulings and treat them as judicial decisions: Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27 at paras. 151–152; Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 40; Reference Re Certification in the Manitoba Health Sector, 2019 MBCA 18. These authorities suggest that I must follow the Supreme Court’s opinion that the entire Act is unconstitutional except sections 81–91. Although the IAA Reference did not specifically address the Act’s regional assessment regime, this regime remains invalid because one cannot sever it from the designated projects scheme: IAA Reference at para. 210.
[68] Moreover, the Supreme Court has stated that a tribunal must refuse to give effect to unconstitutional legislation: Ontario (Attorney General) v. G, 2020 SCC 38 at para. 88.
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