How the Alberta Court of Appeal’s Recent Impact Assessment Act Decision Impacts the Territories – Part I

In May 2022, the Alberta Court of Appeal (“ABCA”) ruled that the federal Impact Assessment Act (IAA)[1] is unconstitutional.[2]

The IAA is the federal government’s primary law for conducting environmental impact assessments (“EIAs”) of projects with a potential impact on the environment[3] in an area of federal jurisdiction, having replaced the Canadian Environmental Assessment Act2012 (“CEAA 2012”)[4] in 2019. The IAA applies to certain projects across Canada that may impact an area of federal jurisdiction (for example, if the project is to be carried out on federal lands, or affect fisheries, navigable waters, or migratory birds) in conjunction with local EIA laws.[5]

In a previous article, we reviewed the ABCA’s decision. In essence, the ABCA found that the IAA is unconstitutional because it intrudes on provincial powers regarding the environment, particularly for projects taking place entirely within one province. The ABCA further held that the problematic provisions of the IAA could not be separated from any parts of it that were valid, and so held the entire Act to be unconstitutional.[6] However, the IAA remains in force. The ABCA’s decision was only an “advisory” decision, or one made to answer questions asked of the Court by the government (rather than to resolve a dispute between two parties).[7] Such decisions cannot declare a law not to be in force.[8]

Given the ABCA’s recent decision, it is certainly possible that a developer regulated under the IAA might challenge the IAA and force a Court in their jurisdiction to take a binding position on the issues raised by the ABCA. It is also possible that someone may attempt to use the ABCA’s reasoning as it related to federalism to challenge other federal legislation giving rise to similar issues.

We will examine two questions about how the ABCA’s decision could impact the North in two articles. In this first article, we examine whether this decision could be used as a basis to challenge the EIA legislation applicable in the North. Next, in our second article, we will examine what the effects might be on the North if the IAA were overturned.

Can the Environmental Impact Assessment Acts of the Territories Be Challenged This Way?

EIA in the Territories

Over the past several decades, the federal government has been progressively handing off legislative and regulatory powers to all of the Territories. In the Northwest Territories and Yukon, this devolution of powers has happened to such an extent that these two Territories govern themselves essentially like provinces.[9] Nunavut, only being 23 years old, has not to date received quite the same extent of legislative powers as the others.[10]

However, EIA in the North is a significant exception to this – this legislation remains federal.[11] EIA in most of the Northwest Territories is governed by the Mackenzie Valley Resource Management Act (“MVRMA”).[12] Nunavut has the Nunavut Planning and Project Assessment Act (“NPPA”),[13] and Yukon has the Yukon Environmental and Socio-economic Assessment Act (“YESSAA”).[14]

Each of these Acts provides for a comparable EIA system. A central board or regional subsidiary “screens”, or provides a short initial assessment of, a project to determine whether it will have significant enough impacts to warrant a more detailed review through an EIA. If the board or panel finds that this is the case, the project is run through a similar process under each piece of legislation to consider and mitigate its potential impacts.[15]

Constitutional Status of the Territories

A Territory may have legislative and regulatory powers functionally equivalent to those of the provinces, but it is not a province. Territories have no constitutional status. They remain a part of the federal Crown and are entirely creatures of federal legislation. While the federal government cannot legislate in areas given to the Provinces by the Constitution, the federal government can change the legislative powers of the Territories at will.

As a result, the federal government can, within the Territories, pass legislation regarding any head of power reserved to a province.[16]

So, Can the Territories’ EIA Acts Be Challenged This Way?

Because the Territories have no constitutional status and are organized entirely under federal legislation, the Territories have no inherent power over EIA, including the assessment of projects entirely within their borders. The federal government has jurisdiction to pass EIA legislation in the Territories (obviously as long as it is otherwise valid pursuant to federal legislative authority), or to decide whether the Territorial governments have any power to conduct an EIA themselves at all.

This is what the federal government has done and continues to do. Each Territory’s EIA system remains federal. Since the ABCA’s concerns about federalism cannot apply to these laws, its reasoning cannot be used to challenge these laws. As regards the federalism concerns raised by the ABCA, the EIA statutes of the Territories are clearly constitutional. In conclusion, Territories’ EIA legislation cannot be challenged in this manner.

As noted, in next month’s article, we will examine what the effects might be on the North if the IAA were overturned.

[1] SC 2019, c 28, s 1.

[2] Reference Re Impact Assessment Act, 2022 ABCA 165 (CanLII) (the “IAA Decision”).

[3] The IAA assesses more than just environmental impacts, but this blog will only be discussing the IAA’s role in assessing those on the environment. See e.g. IAA at s. 2, definition of “effects within federal jurisdiction”.

[4] SC 2012, c 19, s 52.

[5] See IAA at s. 2 (definitions of “designated project” and “jurisdiction”) and at ss. 4, 7, and 21; together, these provisions lay out the application of the IAA and its relationship to provincial jurisdiction.

[6] IAA Decision at pp. 425-27.

[7] Ibid. at p. 4.

[8] See e.g. Ref. re Remuneration of Judges of Prov. Court of PEI; Ref. re Independence & Impartiality of Judges of Prov. Court of PEI; R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Prov. Judges Assn. v. Manitoba (Min. of Justice), 1998 CanLII 833 (SCC), [1998] 1 SCR 3, at p. 9.

[9] Compare Northwest Territories Act, SC 2014, c 2, s 2 at s. 18-32, 51-60 and Yukon Act, SC 2002, c 7 at ss. 18-27, 45-53 with the Constitution Act, 1867, 30 & 31 Vict, c 3 at ss. 92 and 92A.

[10] Compare ibid. with Nunavut Act, SC 1993, c 28, at ss. 23-28.

[11] A discussion of whether the Territories can use their current legislative powers to create their own parallel EIA systems (probably; certainly arguably) is beyond the scope of this blog. For practical purposes, federal legislation handles this issue in the Territories.

[12] SC 1998, c 25.

[13] SC 2013, c 14, s 2.

[14] SC 2003, c 7.

[15] See MVRMA at ss. 124-26, NPPA at ss. 88 and 94, and YESSAA at ss. 50, 55-58, 65, 70. Note that the Northwest Territories is split into two regions for EA purposes, the Mackenzie Valley and the Inuvialuit Settlement Region (ISR). The MVRMA does not apply to the ISR. EAs there are done under Article 11 of the Inuvialuit Final Agreement (IFA). We will discuss this system in greater detail in Part II of this blog. Yukon’s YESSAA system applies across the Territory, but YESSAA has special provisions to recognize the portion of the ISR located in Yukon and the application of the IFA there (YESSAA ss. 90-91).

[16] Commissioner of the Northwest Territories v. Canada, 2001 FCA 220 (CanLII), at pp. 20-43. This case has recently been cited with approval in P.S. Knight Co. Ltd. v. Canadian Standards Association, 2018 FCA 2022, and was applied directly to Nunavut in NTI v. Canada (A.G.), 2008 NUCJ 11.