As with the Monty Python knights fleeing the ferocious bunny, “Run away! Run away!” appears to be the federal legislative response to the Supreme Court of Canada’s October 2023 opinion on the constitutionality of the Impact Assessment Act (IAA), retired lawyer Stephen Hazell writes this week, in a post for the Nature Canada blog.
The proposed government bill to revise the IAA would severely undercut existing federal authority to assess impacts of proposed oil sands projects, dams, or marine terminals that cause serious transboundary environmental effects, such as greenhouse gas emissions, reduced water flows in international and interprovincial rivers, or destruction of migratory bird habitat, Hazell says.
The Supreme Court confirmed federal authority to carry out impact assessments on projects such as mines, pipelines, and dams, so long as those projects have potential impacts in areas of federal jurisdiction, such as fisheries, Hazell recalls. The court opined that several IAA provisions strayed out of the federal constitutional lane, but environmental lawyers agree that the Court’s concerns can be addressed by minor amendments.
Overreacting to the Court’s opinion, “this abject federal retreat would mean that proposed developments generating millions of tonnes of GHGs or causing major reductions in transboundary water flows (unless fish habitat is to be seriously damaged) would receive no federal assessment,” Hazell writes. “(And don’t expect the provinces to step up and study likely environmental harm. They won’t.)”
The government’s IAA bill is likely to receive scant scrutiny in Parliament and will likely be enacted quickly as part of the 2024 omnibus budget implementation legislation.
Here are four proposed amendments that would improve the government’s bill while still addressing the constitutional issues raised by the court.
• First, include “a significant transboundary change to the environment that is caused by air pollution” in the IAA definition of “adverse effect within federal jurisdiction.” Significant transboundary air pollution (including GHGs) almost certainly meets the Supreme Court’s test for “national concern” under the Peace, Order and Good Government clause of the constitution.
• Second, adverse changes to the marine environment should be defined as effects within federal jurisdiction, whether or not the changes occur inside or outside Canada. Oddly, the current definition limits federal effects to those adverse changes that would only occur outside Canada.
• Third, all adverse changes to international and interprovincial waters—and not just pollution-related changes—should be included as effects within federal jurisdiction. Dams and irrigation schemes can dramatically reduce cross-border water flows without necessarily polluting or damaging fish habitat in those waters. As the climate warms, alpine glaciers shrink, and droughts threaten, the quantity of river water received by downstream provinces and U.S. states will almost certainly be a growing political issue. Given this context, a federal role assessing projects likely to harm international and interprovincial waters in any way seems essential.
• Last, the federal government must continue to have authority to consider whether a project hinders or contributes to Canada’s ability to meet its environmental obligations and climate change commitments as a factor in making its public interest decision. The government bill would delete the word “hinder”, which would mean that federal decisions on, for example, mines in Ontario’s Ring of Fire could not consider the enormous loss of carbon storage occasioned by the destruction of peatlands the mines would entail.
The federal concern that one or more provinces may challenge a revised IAA in court is valid, but that could happen no matter what the revisions entail. Given that climate chaos and destruction of nature are the issues of this century, it is time for the federal government to stop running, turn and fight for legislation that supports climate stability and nature conservation.
Stephen Hazell is a member of the board of Energy Mix Productions.
