This article was published by The Conversation on Jan. 8, 2024.
Behind closed doors in Ottawa, Canadian government officials are drafting amendments to their advanced but controversial 2019 Impact Assessment Act, the country’s main tool for assessing major projects that can include big dams, pipelines and mines.
It’s a difficult assignment. For practical and political reasons, they need to work quickly. But they face a longstanding dilemma — how to respect Canada’s venerable Constitution while also applying new knowledge and acting on new imperatives.
The law needs to be amended because, in an October 2023 ruling, the Supreme Court of Canada found key components to be unconstitutional.
Proposed projects being reviewed under the Impact Assessment Act — ranging from gold mines to an airport — have often been lightning rods for controversy. How they are assessed and what gets considered in decision-making — especially on whether projects are approved (usually with conditions) or rejected (rarely) — can have major consequences for generations to come.
But most of the projects identified for assessment under the federal law are undertaken in one or more provinces and can involve at least as much provincial as federal jurisdiction.
Big concerns overlooked
The Constitution of Canada was adopted in 1867 and updated modestly in 1982 with subsequent clarifications in high court rulings.
It divides powers and responsibilities, assigning some — like fisheries and navigation — to the federal government and others, including most natural resources, to the provinces. Areas of concern that overlap or weren’t recognized in either 1867 or 1982 — like the environment and sustainability, respectively — are problematic.
In the reference case decided in October 2023, a majority of the Supreme Court justices concluded that important Impact Assessment Act provisions, including those on what matters are addressed in federal assessment decision-making, reach too far into provincial jurisdiction.
The amendments now being drafted are aimed at pulling back the overreach for cases involving major matters of provincial jurisdiction.
Unfortunately for the amendment drafters, the constitutionally focused approach outlined in the Supreme Court’s ruling is at odds with the core understandings and objectives of the current act. It also relies on a conception of assessment law that is no longer tenable.
Favouring the old way
The Supreme Court’s suggested approach has two core steps.
First, narrow the agenda of impact assessment to focus on mitigating the adverse environmental effects of proposed projects.
Second, assign responsibility for addressing particular effects according to whether they are within established federal jurisdiction or provincial jurisdiction.
The result would preserve what is, at least according to the court majority, the balanced division of federal and provincial powers and responsibilities set in the Constitution. But whatever the merits may be from a constitutional law perspective, the approach recommended by the Supreme Court would return assessment law and practice to a world that no longer really exists.
When assessment requirements were introduced in the 1970s, a focus on mitigating significant adverse environmental effects was defensible. In today’s world of worsening climate change and deepening unsustainability, mitigation is far from enough.
Canada and the rest of the world are wrestling with how to reverse the trajectories of global warming, biodiversity loss and conflict-inducing inequities. The core challenges are not merely to reduce additional damage, but to achieve long-term transformations to non-fossil energy, restorative ecology, a circular economy and equitable distribution.
We also now know that unsustainable trajectories interact, as do all other assessment concerns and opportunities. All are linked in complex social-ecological systems that influence each other continuously at multiple scales.
The strengths of the existing law
Splitting assessment components into constitutional silos is not viable in a world of these interactions. On the contrary, such an approach would return us to the pre-assessment world of piecemeal regulatory licensing.
In contrast to earlier federal assessment law, the Impact Assessment Act includes mitigation of adverse effects within a bigger, more demanding and realistic agenda.
It establishes a largely open process for integrated decision-making in the public interest, covering social, economic health and environmental impacts and their interactions. And it requires attention to Indigenous rights, environmental obligations and climate commitments.
All these overlap with provincial powers and responsibilities. They should be top priorities for all levels of government hoping to leave a viable world for our grandchildren.
They also come as a package. They are deeply entwined matters of concern and opportunity best understood and addressed together.
What the amendments must prioritize
For the drafters of amendments to the Impact Assessment Act, then, the challenge is not only to bring the law into constitutional compliance. It is to craft a constitutionally compliant law that also meets 21st-century needs for assessments and decision-making in the lasting public interest.
Accomplishing that may require some creativity. Certainly, it will entail reinforcing the law’s integrated sustainability agenda.
That requires allowing specified compromises only for decision-making on projects primarily in provincial jurisdiction, expanding collaborative assessments among federal, provincial and Indigenous authorities and increasing the emphasis on broader assessments that address regional and strategic issues and options.
Beyond any immediate changes, the lessons of this case should spur exploration of more positive ways to respect federal, provincial and Indigenous authority by favouring co-operation and empowering, rather than dividing and restricting, responsible decision-making.