Impact Assessment Act once again under fire

The Impact Assessment Act (IAA) faced opposition from Alberta, Ontario, and Saskatchewan for infringing on provincial jurisdiction, leading to a Supreme Court ruling that parts were unconstitutional and resulting in controversial amendments.


Alberta Premier Danielle Smith and Prime Minister Justin Trudeau. Photo by Todd Korol/The Canadian Press

The federal Impact Assessment Act (IAA) quickly ran into heated provincial opposition when it was introduced in 2019.

The act set more stringent targets for making decisions, and overhauled the process for assessing environmental and social impacts of resource and infrastructure projects.

Alberta, Ontario, and Saskatchewan argued that the act invaded provincial jurisdiction over natural resources, and clashed with their own processes for evaluating the impact of resource and infrastructure projects.

In 2022, Alberta went to its provincial court of appeal, asking for a constitutional ruling on the federal law. And Alberta won — the appeal court holding in a majority opinion that “the IAA is a classic example of legislative creep.”

The Alberta court added: “Parliament has taken a wrecking ball to the constitutional right of the citizens of Alberta and Saskatchewan and other provinces to have their . . . natural resources developed for their benefit.” 

And the majority opinion suggested that it would be discriminatory “to deprive Alberta and Saskatchewan, which together have the vast majority of oil and gas reserves in this country, of their constitutional right to exploit these natural resources.”

The feds took the constitutional case to the Supreme Court of Canada in 2023 — and that court ruled that parts of the Impact Assessment Act were indeed unconstitutional. (Although it found no fault with the IAA process for projects conducted or funded by federal authorities on federal lands or outside Canada.)

Ottawa now has introduced amendments as a result of that Supreme Court decision — and the amendments have quickly run into more provincial flak.

Alberta rang the bell for Round Two by slamming Ottawa's changes as unconstitutional and says the amendments still allow Ottawa to “meddle” in resource projects.

“Minister of Environment and Climate Change Steven Guilbeault still has the ability to meddle in projects that are within provincial jurisdiction. This is simply unacceptable and Alberta, when it comes to intra-provincial projects, will not recognize the Impact Assessment Act as valid law."

The national law firm of Bennett Jones declared: “The proposed amendments offer minimal changes, and may leave the IAA once again ripe for constitutional challenges. 

“The most meaningful change comes from the decision to remove any reference to interprovincial effects, appearing to forfeit the federal government's contention that it could regulate projects based on greenhouse-gas emissions. Otherwise, the amendments have done little to move away from the federal government regulating whole projects within provincial jurisdiction.”

Alberta also protested that its government was not consulted on the amendments and was not given a heads-up that they were coming.

The federal government has billed the amendments as aiming to “ensure the Act is constitutionally sound, facilitating efficient project reviews while advancing Canada’s clean growth and protecting the environment.”

The feds say they are still open to input on the changes, but federal Natural Resources Minister Jonathan Wilkinson hailed the amendments as going beyond just addressing the Supreme Court of Canada’s concerns. He spoke of a goal “to reduce duplication and improve coordination with the provinces.”

The Mining Association of Canada said it was "cautiously optimistic" about the amendments, along with the promise of more efficient and timelier project permitting through a new federal office. 

The amended act is the first of seven things the federal government says it will do in an effort to get major projects reviewed and built faster, as Canada tries to stay competitive in the clean-tech race and meet its own climate targets.

Said Wilkinson: “It’s about actually looking at priority projects and trying to figure out ways that you can actually help to overcome obstacles that may exist and to ensure that things like Indigenous consultation are done right from the beginning.

“You can spoil a good project if you do not engage Indigenous communities in a respectful way from the beginning, and we’ve seen examples of that in the past.”

On the provincial scene in B.C., such engagement of Indigenous communities is a goal of the Association for Mineral Exploration, which is concerned about provincial orders restricting mineral activities in some Indigenous territories.

Says CEO Keerit Jutla: “What's happening is that uncertainty from government policy is now having the effect of creating friction between Indigenous peoples and industry, and that is a direct result of government policy uncertainty. . . . 

“We are all in this together. We want to work with the government in a more meaningful way, we want to work with Indigenous peoples, and the First Nations Leadership Council, in a more meaningful way.”

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