Alberta Court of Appeal says Impact Assessment Act is still unconstitutional

The Alberta Court of Appeal has ruled the federal government’s Impact Assessment Act, also known as Bill C-69, remains unconstitutional after a second court challenge. The legislation, initially passed under the Liberal government of former Prime Minister Justin Trudeau, aims to review the environmental, economic, health, and social effects of proposed projects such as ports, mines, and pipelines.

Following a 4-1 decision on Friday, the court stated that despite modifications made by Ottawa following the Supreme Court's 2023 strike down of much of the legislation, the updated version still infringes on provincial jurisdiction.

The court found that the act still grants Ottawa the authority to halt a project in provincial jurisdiction if it has even the slightest impact on federal jurisdiction. This power, the court noted, introduces significant uncertainty as previously unaddressed standards could apply to designated projects, thereby exacerbating concerns that a federal assessment scheme might enable the government to conduct an extensive inquiry into matters exclusively within provincial jurisdiction.

While some of Ottawa's changes to the earlier version were deemed constitutionally acceptable, the court emphasized that the legislation still empowers Ottawa with overly broad powers in areas governed by provincial law. The decision-maker can impose conditions, follow-up programs, or even indefinitely prohibit entire projects and related matters within provincial jurisdiction, rather than concentrating oversight solely on federal effects caused by the project.

Oil and gas industry representatives, as well as critics like federal Conservative Leader Pierre Poilievre, strongly oppose the Impact Assessment Act. The legislation has also been criticized by former Alberta Premier Jason Kenney, who referred to it as the “no more pipelines act.” Alberta Premier Danielle Smith expressed her satisfaction with the ruling, calling it a "big win for Alberta" and urging the federal government to accept the decision, refrain from further appeal, and work towards cleaning up the flawed Trudeau-era legislation to prevent inhibiting economic development.

The ruling comes as Ottawa and Alberta collaborate on the Pacific Link pipeline project, the first to receive a national interest designation under Ottawa’s new Building Canada Act. However, critics such as Poilievre have long advocated for the repeal of the Impact Assessment Act. The federal government, through Bill C-39, is attempting to shift the assessment process for pipeline and energy transmission projects from the Impact Assessment Agency of Canada to the Canada Energy Regulator.

Despite this shift, the Canada Energy Regulator will still operate under the provisions of the Impact Assessment Act when conducting its reviews, according to Ottawa.

Federal Environment Minister Julie Dabrusin’s office stated that the government is reviewing the decision and considering subsequent steps. The government maintains its commitment to advancing long-term prosperity in a rapidly changing global economy, emphasizing that the Impact Assessment Act is crucial for this endeavor. The Alberta Court of Appeal’s opinion, however, does not alter the government’s dedication to cooperative federalism among provinces.