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Canada: The federal impact assessment regime is partly unconstitutional.

    Publié le 15 octobre 2023

In its decision of October 13, 2023, 2023 SCC 23, the Supreme Court of Canada had to decide that: the regime of «designated projects» in the Impact Assessment Act, (the Act respecting the federal impact assessment process impact assessment and prevention of significant adverse environmental effects) — is ultra vires Parliament and is therefore unconstitutional.

Presumption of constitutionality according to the jurisprudence of the Supreme Court of Canada

The presumption of constitutionality is a cardinal principle of the Court’s jurisprudence in matters of division of powers.

According to the presumption, any legislative provision is presumed to be intra vires the level of government which adopted it, so that the court must approach any question relating to its validity on the presumption that it is valid, unless the party which contested, this demonstrates the opposite. This presumption is also a principle of statutory interpretation: it directs the court to presume that the legislator does not intend to exceed the powers conferred on it by the Constitution.

However, this presumption is not an impenetrable shield that protects a legislative text from review of constitutionality by the courts, which cannot use the presumption of constitutionality to rewrite a legislative text as as they see fit in order to make it conform to the Constitution. They cannot resort to this presumption to disregard an eloquent law and ultra vires the body which adopted it, and the presumption does not negate the obligation of the courts to validly review the constitutionality of a legislative text . In the same vein, the court cannot circumvent its obligation to validly review the constitutionality of a legislative text by suggesting that, to the extent that an administrative decision-maker unconstitutionally applies a law, the application of this law could be subject to review. a judicial review.[1]

Motivations for unconstitutionality by the Supreme Court

 Legal and practical effects of the Impact Assessment Act  (IAA)

Legal effects:

1) projects are designated based on the likelihood that they will result in significant adverse federal effects;

(2) the Agency decides whether it evaluates projects on the same basis;

(3) the Agency’s report must indicate the adverse Federal effects that a project is likely to cause and specify the extent to which those effects are significant; And

(4) the final public interest determination and resulting conditions imposed on the project must be reasonable and proportionate, taking into account the adverse federal effects, the extent to which they are significant and the likelihood of ‘they are attenuated. The wording, context and purpose of the Act, as well as the applicable principles of interpretation, show that Parliament did not intend minor effects to be encompassed. In fact, the threshold of significance regarding adverse environmental effects permeates every major step and every decision made under the IAA regarding designated projects. Furthermore, even if the interpretation of the IAA as encompassing minor effects were reasonably possible, the presumption of constitutionality requires that it be rejected in favor of an interpretation consistent with the Constitution.

The practical effects of the IAA, including possible delays or use of resources, may represent important policy questions for Parliament, but are not constitutionally relevant

The regime for designated projects is ultra vires

Classifying an environmental law represents a challenge because « environment » is not a head of jurisdiction provided for in art. 91 or 92 of the Constitution Act, 1867. Environmental management touches different areas of constitutional responsibility. As a result, neither level of government has exclusive jurisdiction over all « environment » or « environmental assessment. » Both levels of government can legislate with respect to certain aspects of environmental protection, including certain aspects of the environmental assessment of concrete activities.

The evaluation process provided for in arts. 81 to 91 of the IAA is constitutional and can be dissociated from the rest of the regime.

The designated projects regime is ultra vires for two essential reasons:

By its pith and substance, it is not intended to regulate « effects falling within an area of federal jurisdiction » within the meaning of the IAA, because the effects in question do not dictate the decision-making functions of the regime, and the defined notion of « effects falling within an area of federal jurisdiction » does not fit within federal legislative jurisdiction.

The excessive scope of these effects exacerbates the constitutional fragility of the regime’s decision-making functions. Environmental protection remains one of the most pressing challenges of our time, and Parliament has the authority to adopt an environmental assessment regime to meet this challenge, but Parliament also has an obligation to uphold to the stable framework for sharing powers set out in the Constitution.

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