In the Court of Appeal of Alberta  
Citation: Reference re Impact Assessment Act, 2022 ABCA 165  
Date: 20220510  
Docket: 1901-0276AC  
Registry: Calgary  
In the Matter of An Act to enact the Impact Assessment Act and the Canadian Energy  
Regulator Act, to amend the Navigation Protection Act and to make consequential  
amendments to other Acts, SC 2019, c 28 and the Physical Activities Regulations,  
SOR/2019-285  
And in the Matter of a Reference by the Lieutenant Governor in Council to the Court of  
Appeal of Alberta under the Judicature Act, RSA 2000, c J-2, s 26  
_______________________________________________________  
The Court:  
The Honourable Chief Justice Catherine Fraser  
The Honourable Justice Jack Watson  
The Honourable Justice J.D. Bruce McDonald  
The Honourable Justice Sheila Greckol  
The Honourable Justice Jo’Anne Strekaf  
_______________________________________________________  
Opinion of the Honourable Chief Justice Fraser,  
the Honourable Justice Watson and  
the Honourable Justice McDonald  
Concurred in by the Honourable Justice Strekaf  
Dissenting Opinion of the Honourable Justice Greckol  
Reference by the Lieutenant Governor in Council  
Order in Council 160/2019  
Dated the 9th day of September, 2019  
Filed the 10th day of September, 2019  
Table of Contents  
Paragraph  
I.  
Introduction ................................................................................................................[1]  
Positions of the Parties.................................................................................................[34]  
II.  
A.  
B.  
Alberta and Intervenors in Support of Alberta ................................................[34]  
Canada and Intervenors in Support of Canada ................................................[39]  
III.  
Relevant Provisions of the Constitution ......................................................................[45]  
A.  
Constitution Act, 1867 .....................................................................................[45]  
1.  
2.  
Federal Legislative Powers..................................................................[45]  
Provincial Legislative Powers..............................................................[45]  
B.  
Key Provisions Added by the Constitution Act, 1982 .....................................[45]  
1.  
Additional Provincial Powers under Amendment to the Constitution  
Act, 1867 ..............................................................................................[45]  
Procedure for Amending the Constitution...........................................[45]  
2.  
IV.  
V.  
The Environment and the Division of Powers.............................................................[46]  
A.  
B.  
The Environment is a Constitutionally Abstruse Matter .................................[46]  
Environmental Impact Assessments Are Not Within Parliament’s Exclusive  
Jurisdiction.......................................................................................................[49]  
Joint Federal-Provincial Environmental Accords............................................[50]  
C.  
History of Prairie Provinces - Ownership of Natural Resources and Section 92A .....[52]  
A.  
B.  
Prairie Provinces Secure Ownership of Their Natural Resources ...................[53]  
Federal Government Interventions and Pressures for Constitutional  
Reform .............................................................................................................[57]  
Constitutional Compromise .............................................................................[64]  
C.  
1.  
2.  
3.  
4.  
Section 92A Resource Amendment..................................................[64]  
Section 38 Opt-Out Right .................................................................[67]  
Section 36 Economic Development and Equalization......................[69]  
Conclusion ...........................................................................................[72]  
D.  
Role of the Courts............................................................................................[73]  
VI.  
The Purpose and Scope of the Resource Amendment..................................................[74]  
A.  
B.  
C.  
D.  
Introduction......................................................................................................[74]  
Purpose of the Resource Amendment...............................................................[76]  
Scope of the Resource Amendment..................................................................[77]  
Significance of the Resource Amendment........................................................[81]  
VII. Overview of Environmental Impact Assessment Legislation Federally......................[84]  
A. Brief Historical Review of Federal Legislation...............................................[84]  
1.  
2.  
3.  
Environmental Assessment and Guidelines Order ..............................[84]  
Canadian Environmental Assessment Act, 1992 .................................[86]  
Canadian Environmental Assessment Act, 2012 .................................[93]  
Page: 1  
B.  
Overview of the Act and Regulations ............................................................[100]  
1.  
Scope and Purposes of the Act...........................................................[101]  
2.  
3.  
4.  
5.  
6.  
7.  
Relevant Definitions Under the Act Relating to Effects ....................[105]  
Exclusivity Principle Primary and Limited Jurisdiction.................[106]  
Activities Included in the IAA............................................................[109]  
Section 7 and Prohibitions .................................................................[111]  
Section 8 and Prohibitions .................................................................[114]  
Phases of Impact Assessment Process ...............................................[116]  
VIII. Overview of Environmental Assessment Legislation Provincially ...........................[123]  
A.  
Alberta............................................................................................................[123]  
1.  
Overview of Environmental Impact Assessment Legislation in  
Alberta .............................................................................................[123]  
Operational Aspects of Alberta’s Environmental Impact Assessment  
Regime .............................................................................................[127]  
In Situ Oil Sands Projects ..................................................................[131]  
Canada-Alberta Bilateral Agreement on Environmental  
2.  
3.  
4.  
Assessment.........................................................................................[135]  
B.  
C.  
Ontario ...........................................................................................................[136]  
1.  
Overview of Environmental Assessment Impact Legislation in  
Ontario .............................................................................................[136]  
Operational Aspects of Ontario’s Environmental Impact Assessment  
Regime .............................................................................................[139]  
2.  
Saskatchewan.................................................................................................[141]  
1.  
Overview of Environmental Assessment Legislation in  
Saskatchewan.....................................................................................[141]  
Operational Aspects of Saskatchewan’s Environmental Impact  
Assessment Regime ...........................................................................[142]  
2.  
IX.  
Foundational Constitutional Principles......................................................................[145]  
A.  
B.  
C.  
Federalism......................................................................................................[145]  
Subsidiarity ....................................................................................................[149]  
Conclusion .....................................................................................................[152]  
X.  
Indigenous Peoples and the Division of Federal/Provincial Powers .........................[153]  
A.  
B.  
Section 91(24) of the Constitution Act, 1867.................................................[153]  
Section 35 of the Constitution Act, 1982 .......................................................[158]  
XI.  
Division of Powers Framework .................................................................................[164]  
A.  
The Two Stages in a Division of Powers Analysis........................................[164]  
1.  
2.  
Characterization of the “Matter” of the Challenged Law ..................[167]  
Classification Under Head of Power..................................................[172]  
B.  
C.  
D.  
E.  
Importance of Keeping the Two Stages Separate..........................................[173]  
The Pith and Substance Doctrine and the Environment ................................[174]  
The POGG Power ..........................................................................................[181]  
Cooperative Federalism and Caution.............................................................[186]  
XII. The First Stage: Characterization – What is the “Matter” of the IAA?......................[190]  
A. Introduction....................................................................................................[190]  
1. The IAA Two Acts in One...............................................................[190]  
B.  
C.  
Purpose of the Legislative Scheme................................................................[192]  
1.  
Intrinsic Evidence of Purpose............................................................[192]  
a.  
b.  
c.  
Title ....................................................................................[192]  
Preamble ................................................................................[194]  
Statutory Purposes of the Act.................................................[199]  
2.  
3.  
Extrinsic Evidence of Purpose...........................................................[202]  
Conclusions Relating to Purpose of the IAA......................................[205]  
Effects of the IAA...........................................................................................[206]  
1.  
2.  
Introduction........................................................................................[206]  
Legal Effects of the IAA.....................................................................[210]  
a.  
Designation and Public Interest Determination vis à vis  
Intra-Provincial Designated Projects Are Not Linked to  
Federal Decision-Making Authority  
[210]  
[210]  
(i)  
Scope of the IAA and Designation of Designated  
Projects  
(ii)  
Need for Federal Decision-Making Authority Linked  
to Federal Head of Power [219]  
b.  
Regulation of Any and All Effects of Intra-Provincial  
Designated Projects  
[227]  
[229]  
(i)  
Self-Defined "Effects Within Federal Jurisdiction"  
Are Not All Within Federal Jurisdiction  
(ii)  
Federal Jurisdiction Does Not Extend to Any and  
All Effects of Intra-Provincial Designated Projects [232]  
(iii) Public Interest Determination Is Not Limited to  
Purported Adverse Federal Effects  
[251]  
[256]  
(iv)  
Conclusions  
c.  
Prohibitions Under Section 7 and Federal Jurisdictional  
Overreach  
[265]  
[272]  
[282]  
(i)  
Prohibitions on Changes to Particular Components  
of the Environment  
Prohibitions on Changes on Federal Lands, Outside  
the Province or Outside Canada  
(ii)  
(iii) Prohibitions on Matters Affecting Indigenous  
Peoples of Canada  
[301]  
[317]  
[318]  
[320]  
(iv)  
(v)  
Additional Prohibitions  
Term and Effect of the Prohibitions  
d.  
e.  
Exercise of Federal Regulatory Power  
Requirement for Public Interest Determination by the  
Federal Executive and Consequences if Determination  
Is Not Positive  
[321]  
[321]  
(i)  
(ii)  
Key Decision Under the IAA  
Public Interest Determination by the Federal  
Executive  
[322]  
f.  
g.  
Time Limits for Assessments and Decision Statements  
Consultation with Other Jurisdictions  
[348]  
[353]  
3.  
Practical Effects of the IAA................................................................[356]  
a.  
b.  
c.  
Delay  
Uncertainty  
[358]  
[362]  
No Practical Remedy to Review Federal Action/Inaction [366]  
D.  
Conclusion Regarding the “Matter” of the IAA.............................................[372]  
XIII. De Facto Expropriation .............................................................................................[374]  
XIV. Classification of the Subject Matter of the IAA .........................................................[378]  
A.  
B.  
Introduction....................................................................................................[378]  
Federal Heads of Power.................................................................................[380]  
1.  
2.  
Federal Triggers Do Not Determine Classification ...........................[380]  
The Subject Matter of the IAA Is Not Within Federal Heads of  
Power .............................................................................................[384]  
a.  
b.  
c.  
Section 91(12) Sea Coast and Inland Fisheries...................[385]  
Section 132 Imperial Treaties .............................................[389]  
Section 91(24) Indians and Lands Reserved for the  
Indians....................................................................................[393]  
Section 91 National Concern Doctrine Under POGG ........[397]  
Section 91(2) Trade and Commerce ...................................[399]  
Section 91(27) Criminal Law..............................................[402]  
d.  
e.  
f.  
C.  
Provincial Heads of Power.............................................................................[409]  
1.  
2.  
Introduction........................................................................................[409]  
Intra-Provincial Designated Projects Fall Within Provincial Heads  
of Power.............................................................................................[410]  
a.  
Section 92A Development and Management of Natural  
Resources ...............................................................................[411]  
Section 109 Proprietary Rights as Owners of Public  
b.  
Lands ....................................................................................[414]  
Section 92(5) Management of Public Lands.......................[416]  
Section 92(10) Local Works and Undertakings..................[417]  
Section 92(13) Property and Civil Rights...........................[418]  
Section 92(16) Local or Private Matters.............................[420]  
c.  
d.  
e.  
f.  
D.  
Conclusions on Classification........................................................................[421]  
XV. Conclusion on Validity of the IAA and Severance.....................................................[425]  
XVI. Interjurisdictional Immunity......................................................................................[428]  
XVII. Conclusion ............................................................................................................[431]  
_______________________________________________________  
Opinion  
_______________________________________________________  
I. Introduction  
[1]  
Sustainable economic development cannot be achieved without a sustainable healthy  
environment and society. Since we all want a healthy biosphere in which to live, we expect our  
governments to make informed decisions about proposed larger scale projects in this country in a  
careful and precautionary manner. The utility therefore of environmental impact assessments of  
such projects to determine their environmental, social, economic and health impacts is undisputed.  
That has been unanimously recognized by the four governments and all intervenors who  
participated in this Reference. Indeed, without exception, every government in this country has, in  
aid of responsible stewardship of the environment, enacted comprehensive environmental  
assessment processes to evaluate the benefits and burdens of significant proposed infrastructure  
and resource activities.  
[2]  
Times of great change often lead to pressures to centralize power. Popular thinking may  
consider a central government best suited to manage whatever change dominates public discourse.  
Today, that discourse most certainly includes climate change. The increasing frequency of weather  
events related to climate change and their detrimental effects are evident; the need to act with  
urgency on this front undeniable. But this should not be confused with the issue at stake here.  
[3]  
This Reference is not about the legitimate concerns all governments and citizens have today  
about climate change nor how best to address them. Nor is it about the anxiety many rightly feel  
about this subject. Rather, the issue before this Court is whether Parliament has overstepped the  
limits of its constitutional mandate under Canada’s Constitution.  
[4]  
The Lieutenant Governor in Council has asked for this Court’s opinion on two questions:1  
1. Is Part 1 of An Act to enact the Impact Assessment Act and the  
Canadian Energy Regulator Act, to amend the Navigation  
Protection Act and to make consequential amendments to other  
Acts, S.C. 2019, c. 28 unconstitutional, in whole or in part, as being  
beyond the legislative authority of the Parliament of Canada under  
the Constitution of Canada?  
2. Is the Physical Activities Regulations, SOR/2019-285,  
unconstitutional in whole or in part by virtue of purporting to apply  
to certain activities listed in Schedule 2 thereof that relate to matters  
1
The Order in Council was issued under s 26 of the Judicature Act, RSA 2000, c J-2.  
Page: 2  
entirely within the legislative authority of the Provinces under the  
Constitution of Canada?  
Part 1 of this legislation consists only of the Impact Assessment Act, SC 2019, c 28, s 1 [Act]. We  
sometimes refer to the Act and the Physical Activities Regulations, SOR/2019-285 [Regulations]  
collectively as the “IAA” or the “legislative scheme”.  
[5]  
[6]  
For reasons explained in this Opinion, the Act and Regulations are unconstitutional.  
Climate change constitutes an existential threat to Canada.2 But climate change is not the  
only existential threat facing this country. The IAA involves another existential threat one also  
pressing and consequential and that is the clear and present danger this legislative scheme  
presents to the division of powers guaranteed by our Constitution and thus, to Canada itself. This  
Reference shines a spotlight on the crucial feature of federalism built into our constitutional  
framework. History teaches that government by central command rarely works in a geographically  
large country with a diverse population and divergent regional priorities. In most major democratic  
countries in the world, federalism and its associated principle, subsidiarity, have been insisted upon  
by the governed. That includes Canada which, by deliberate choice, is a federation not a unitary  
state.  
[7]  
Federalism is fundamental to Canada’s existence: Reference re Secession of Quebec,  
[1998] 2 SCR 217 at paras 37, 55-60 [Secession Reference].3 And what is fundamental to  
Canada’s model of federalism is preservation of the carefully calibrated division of powers  
between the federal and provincial governments4 set out in Part VI of the Constitution Act, 1867,  
as amended.5  
[8]  
Legislative power is divided and balanced between Parliament and provincial Legislatures  
mainly through an allocation of mutually exclusive heads of legislative power. Most federal  
powers are those vested exclusively in Parliament under s 91 and s 92(10)(a), (b) and (c) of the  
Constitution Act, 1867. Provincial powers include those legislative powers vested exclusively in  
provincial Legislatures under s 92 of the Constitution Act, 1867 as well as the proprietary powers  
flowing from the provinces’ ownership of their natural resources under s 109. They also include  
2
References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at paras 167, 171 [References re Greenhouse  
Gas Pollution Pricing Act SCC].  
3
See also Liquidators of the Maritime Bank of Canada v Receiver-General of New Brunswick, [1892] AC 437 at  
441-43 (PC); In Re the Initiative and Referendum Act, [1919] AC 935 at 942 (PC); Re: Resolution to Amend the  
Constitution, [1981] 1 SCR 753 at 905-9.  
4
In this Opinion, we include territorial governments within the phrase provincial governments unless the context  
otherwise requires.  
5
30 & 31 Vict, c 3 (UK), reprinted in RSC 1985, Appendix II, No 5. This includes s 92A, which was added as an  
amendment to the Constitution Act, 1867 as part of the Constitution Act, 1982, s 50, being Schedule B to the Canada  
Act 1982 (UK), 1982, c 11.  
Page: 3  
those allocated to the provinces under s 92A(1) with respect to non-renewable natural resources,  
forestry resources and sites and facilities for generation and production of electrical energy  
(sometimes referred to as “92A natural resources”) in their province. Reserving meaningful powers  
to provincial governments remains a key objective of federalism: Canadian Western Bank v  
Alberta, 2007 SCC 22 at para 22, [2007] 2 SCR 3 [Canadian Western Bank].  
[9]  
Under the Constitution, the “environment” is not a head of power assigned to either  
Parliament or provincial Legislatures: Friends of the Oldman River Society v Canada (Minister  
of Transport), [1992] 1 SCR 3 at 63 [Oldman River].6 That being so, when either government  
level legislates for purposes relating to the environment, that legislation must be linked to a specific  
head of power within its jurisdiction. A meritorious motive protection of the environment does  
not by itself found constitutional jurisdiction for either level of government. Accordingly,  
Parliament is not entitled, on the basis that Canadians nationally share legitimate concerns about  
the environment and climate change, to legislate and regulate on the environment generally. Nor  
is Parliament entitled to require federal oversight and approval of intra-provincial activities  
otherwise within provincial jurisdiction on the basis of the environmental effects of those projects,  
and factors, not linked, or not sufficiently linked, to a federal head of power. And yet this  
legislative scheme authorizes just that.  
[10] There is a long history here. The IAA is a classic example of legislative creep. The federal  
government appears to have taken the Supreme Court decision in Oldman River upholding the  
federal government’s Environmental Assessment and Review Process Guidelines Order, SOR/84-  
467 [Guidelines Order] as a license to systematically expand federal powers under the  
environmental umbrella. The IAA, with its intrusions into provincial jurisdiction, is far removed  
from the federal environmental assessment legislation that the Supreme Court found constitutional  
in Oldman River. The assessment process under the Guidelines Order did not include the  
usurpations of provincial jurisdiction embedded in the IAA. It was also procedural only, a planning  
tool and integral component of sound decision-making.7 Its purpose was to provide the federal  
decision maker with an objective basis for granting or denying permits or approvals required for a  
proposed development under federal legislation. But the IAA extends well beyond this.  
[11] The full scope of this legislative scheme is revealing. It is both an impact assessment and  
regulatory regime. It provides for a comprehensive impact assessment process to assess the  
“effects” of certain physical activities carried out in Canada. That includes any physical activity  
designated as a “designated project” by the Governor in Council under the Regulations or by the  
6
The concepts of the “environment” and “health” are “vague” and “general”: References re Greenhouse Gas  
Pollution Pricing Act at para 53.  
7
The basic concepts are “early identification and evaluation of all potential environmental consequences of a proposed  
undertaking” and “decision making that both guarantees the adequacy of this process and reconciles, to the greatest  
extent possible, the proponent’s development desires with environmental protection and preservation”: Oldman River  
at 71, citing Roger Cotton & D. Paul Emond, “Environmental Impact Assessment” in John Swaigen, ed,  
Environmental Rights in Canada (Toronto: Butterworths, 1981) 245 at 247.  
Page: 4  
Minister of the Environment under the Act (sometimes referred to as “designated projects” or  
“designated project” and the Governor in Council and Minister of Environment sometimes referred  
to collectively as the “federal executive”).8  
[12] A number of physical activities subject to the Act are within exclusive federal jurisdiction.9  
Some have been prescribed as designated projects (“federal designated projects”). No one  
challenges this scheme as it relates to activities within exclusive federal jurisdiction, including  
federal designated projects.  
[13] A number of physical activities prescribed as designated projects though involve intra-  
provincial activities which otherwise fall within exclusive provincial jurisdiction under several  
heads of provincial power: s 92A(1) (development and management of natural resources); s 109  
(proprietary rights as owners of public lands); s 92(5) (management of public lands); s 92(10)  
(local works and undertakings); s 92(13) (property and civil rights); and s 92(16) (local or private  
matters). The focus of this Reference has been on the constitutional validity of the IAA when  
applied to those intra-provincial activities designated as “designated projects” (sometimes referred  
to as “intra-provincial designated projects” or “intra-provincial designated project”). Inclusion of  
an intra-provincial activity within this scheme is triggered merely by its designation as a designated  
project by the federal executive.  
[14] Through this legislative scheme, Parliament has also imposed a regulatory regime on all  
intra-provincial designated projects on provincially-owned as well as provincially-controlled  
lands. That has been accomplished through a number of means including a public interest  
determination by the federal executive and related decision statement. In the result, the IAA  
regulates matters within provincial competence as well as federal competence.  
[15] Some intra-provincial designated projects may require a permit, license or authorization  
(sometimes referred to as a “federal permit”) under other valid federal legislation allowing the  
project to be carried out. But others may not. Intra-provincial designated projects include both.  
The scheme is not restricted to intra-provincial activities requiring a federal permit, in other words  
activities in respect of which a federal authority has some decision-making authority under valid  
and applicable federal legislation independent of this scheme. Instead, the IAA regulates all intra-  
provincial designated projects even where there is no such federal decision-making. And therein  
lies one instance of federal jurisdictional overreach under the IAA.  
8
Section 2 defines designated project as follows: “designated project means one or more physical activities that (a)  
are carried out in Canada or on federal lands; and (b) are designated by regulations made under paragraph 109(b) or  
designated in an order made by the Minister under subsection 9(1). It includes any physical activity that is incidental  
to those physical activities, but it does not include a physical activity designated by regulations made under paragraph  
112(1)(a.2).”  
9
Parliament has exclusive jurisdiction to enact laws in relation to federally-owned and federally-controlled property  
and territory and works and undertakings under ss 91 and 92(10)(a), (b) and (c) in addition to its “Peace, Order, and  
good Government” (POGG) power.  
Page: 5  
[16] The impact assessment required for intra-provincial designated projects includes not only  
their environmental impacts but a wide range of economic, social, cultural and heritage impacts.  
The definitions under the Act sweep within its purview all aspects of the environment no matter  
how untethered they may be, when applied to intra-provincial designated projects, to federal heads  
of power. The Act touches land, water, air, flora, fauna and energy which pretty well covers the  
entire biosphere known to mankind. It is also aimed at social, economic, cultural, humanist and  
historical topics which pretty well covers all aspects of human life within the biosphere. The Act  
also has within it unilaterally expandable schedules as to the types of construction, development,  
business, commerce and other intra-provincial activities that the federal government may choose  
to bring under its scrutiny as designated projects. Thus, it covers all those things too.  
[17] Under the Act, Parliament has regulated what it has defined as “effects within federal  
jurisdiction” from a designated project and what it characterizes as “adverse effects within federal  
jurisdiction” from that project. It has self-defined “effects within federal jurisdiction” as various  
changes or impacts to the environment, health, social or economic matters from or by a designated  
project. That is the hook Canada claims anchors its jurisdiction over intra-provincial designated  
projects that do not otherwise require a federal permit. However, while those changes or impacts  
may be “effects within federal jurisdiction” for purposes of the Act, that does not make all of them  
effects within federal jurisdiction for purposes of the division of powers.  
[18] Parliament’s self-definition of “effects within federal jurisdiction” (sometimes referred to  
as “purported federal effects” or “federal effects” and “adverse effects within federal jurisdiction”  
sometimes referred to as “purported adverse federal effects” or “adverse federal effects”) includes  
effects not within its constitutional jurisdiction when applied to intra-provincial designated  
projects namely, the incidental effects of provincial laws (authorizing intra-provincial designated  
projects) on a federal head of power, effects not linked, or not sufficiently linked, to a federal head  
of power and effects that do not even qualify as significant. And therein lies another instance of  
federal jurisdictional overreach under this legislative scheme.  
[19] Further, Parliament has layered onto its self-definition of “effects within federal  
jurisdiction” mandatory factors which must be considered in the impact assessment. Again, some  
are not within Canada’s jurisdiction when applied to intra-provincial designated projects. The  
federal executive is then empowered to make a substantive decision, a “public interest  
determination”, with respect to each intra-provincial designated project taking into account both  
the impact assessment, which itself includes all effects of the project, not simply federal effects,  
and prescribed mandatory factors, again not all of which are within Canada’s jurisdiction as they  
relate to those projects.  
[20] In particular, the federal executive is permitted to use those mandatory factors and all  
effects of an intra-provincial designated project in declining to make the key substantive decision  
required for the project to proceed a positive public interest determination. A positive public  
interest determination means that the federal executive has determined that the intra-provincial  
Page: 6  
designated project is in the public interest.10 Without a positive public interest determination, all  
the prohibitions under the Act continue, meaning that the proponent of an intra-provincial  
designated project is effectively prohibited from proceeding with that project. And without a  
positive public interest determination, the federal executive is under no obligation to identify  
conditions for the project to proceed. And without a positive public interest determination, other  
federal authorities are forbidden from issuing any federal permit required for the intra-provincial  
designated project to proceed. And therein lies an even more fatal instance of federal overreach  
under this legislative scheme.  
[21] For Parliament to empower the federal executive to stop any intra-provincial designated  
project over the objections of the provincial government involved unless the federal executive  
finds the project to be in the public interest constitutes a breathtaking pre-emption of provincial  
legislative authority. The economic life of this country lies largely in the provinces. While some  
may believe the IAA’s primary target is fossil fuel projects, no province should assume that intra-  
provincial highways or light rail transit systems or flood control or wind farms or solar farms or  
any of the innumerable intra-provincial activities a province may decide are needed for its citizens  
would be exempt from the IAA. They would not be.  
[22] Neither government level has the right to define the parameters of its constitutional  
jurisdiction: Desgagnés Transport Inc v Wärtsilä Canada Inc, 2019 SCC 58 at para 140, per  
Wagner CJ and Brown J concurring [Desgagnés Transport]. Instead, the ultimate responsibility  
for defending the dividing line between provincial and federal governments in this country rests  
with the courts: Northern Telecom Canada Ltd v Communication Workers of Canada, [1983]  
1 SCR 733 at 741. Courts do not determine the constitutionality of legislation under the division  
of powers based on the preference of a majority of Canadians or a majority of provinces.  
Majoritarianism is not superior to the Constitution. Indeed, Canada’s Constitution and the Rule of  
Law are protections against majoritarianism.  
[23] In discharging its duty, the courts have no mandate to erase the dividing line and draw  
another: Caron v Alberta, 2015 SCC 56 at para 36, [2015] 3 SCR 511. Rather, the courts must  
respect the structure of government that the Constitution has implemented: Trial Lawyers  
Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 at para  
26, [2014] 3 SCR 31. The golden thread running through Canada’s Constitution is federalism.  
Hence the need for the courts to maintain an appropriate balance between federal and provincial  
heads of power: Reference re Firearms Act (Can.), 2000 SCC 31 at para 48, [2000] 1 SCR 783  
[Firearms Reference].  
[24] Were the courts to uphold the validity of the IAA, all provincial industries, almost every  
aspect of a province’s economy that the federal government chooses to sweep within the IAA,  
along with a province’s development of its natural resources, would be subject to federal  
10  
We explain in detail later why the public interest determination involves assessing whether the intra-provincial  
designated project overall is in the public interest having regard to federal priorities and policies.  
Page: 7  
regulation, including an effective federal veto. This would undermine the division of powers,  
substantially overriding s 92(5) (management of public lands), s 92(10) (local works and  
undertakings), s 92(13) (property and civil rights) and s 92(16) (local or private matters) of the  
Constitution.  
[25] In addition, it would effectively write s 109 and s 92A(1) out of the Constitution, thereby  
ending the provinces’ constitutional rights to ownership and development of their natural  
resources. To these fundamental rights of Canada’s constitutional makeup, the IAA expresses no  
deference. Instead, this legislative scheme allows the federal government to essentially render  
worthless the natural resources of individual provinces by stopping their development. If upheld,  
the IAA would permanently alter the division of powers and forever place provincial governments  
in an economic chokehold controlled by the federal government.  
[26] Perhaps most troubling, this legislative scheme allows the federal government to pick  
winners and losers, not just in terms of individual intra-provincial designated projects, and  
individual categories thereof, but also in terms of individual provinces. Thus, this legislative  
scheme not only has a corrosive effect on the division of powers, it has an equally corrosive effect  
on the economic health and well-being of citizens of individual provinces. For those Canadians  
living in parts of the country with lesser populations, and, thus, lesser political influence on the  
federal government, the economic and social consequences are especially devastating. True respect  
for federalism is the only defence against this kind of unrestrained federal power.  
[27] This is not an academic matter for western Canada. The early history of Canada prior to  
1930 singled out the prairie provinces for economic inequality compared to other provinces. It was  
only when ecological and economic disaster befell the prairie provinces that they were provided  
with the same ownership and control of public lands and natural resources as the founding  
provinces had retained on Confederation. This was finally achieved by constitutional amendment  
in 1930. But federal government initiatives started to claw back on that constitutional amendment.  
This led to the provinces seeking, and securing, through the addition of s 92A further reinforcement  
and expansion of provincial jurisdiction over 92A natural resources.  
[28] The IAA raises an issue of fundamental fairness. Through this legislative scheme,  
Parliament has taken a wrecking ball to the constitutional right of the citizens of Alberta and  
Saskatchewan and other provinces to have their 92A natural resources developed for their benefit.  
And in doing so, it has also taken a wrecking ball to something else and that is the likelihood of  
capital investment in projects vital to the economy of individual provinces. Capital investment  
does not just happen, especially where the capital investment is measured in the billions, not  
millions of dollars. And it particularly does not happen where, as under this legislative scheme,  
the investing rules are uncertain, unpredictable, unquantifiable and unreliable.  
[29] 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 especially  
while the federal government continues to permit the import of hundreds of millions of barrels of  
Page: 8  
oil into Canada from other countries is to reintroduce the very discrimination both provinces  
understood had ended, if not in 1930, then certainly by 1982. To put the extent of those imports in  
perspective, in 2020, a year in which consumption was reduced because of the pandemic, Canada  
imported more than 200,000,000 barrels of oil that year alone, representing 24.3% of total  
consumption of oil in this country.11  
[30] The IAA also brings to the fore legitimate concerns about stranding oil and gas resources  
in this country as the world transitions away from fossil fuels to a greener economy. This transition  
will take time. That is why it is called a transition. That time may be measured in double digits, if  
not three or possibly four decades, particularly if carbon capture, utilization and storage, the use  
of hydrogen and small modular nuclear reactors allow those resources to be developed in, or near,  
a net-zero manner.12 While many may be delighted by the prospect of stranding these resources,  
including Canada’s oil and gas competitors who would thereby enhance their own position for  
markets outside Canada and potentially within Canada too, that enthusiasm may not be shared by  
the provinces that own these resources nor by the citizens of those provinces.13  
[31] Parliament has the authority to legislate to protect the environment. However, it must do  
so in accordance with the Constitution. For reasons explained in detail in this Opinion, we have  
concluded that the subject matter of the IAA is properly characterized as “the establishment of a  
federal impact assessment and regulatory regime that subjects all activities designated by the  
federal executive to an assessment of all their effects and federal oversight and approval”. When  
applied to intra-provincial designated projects, this subject matter does not fall under any heads of  
power assigned to Parliament but rather intrudes impermissibly into heads of power assigned to  
provincial Legislatures by the Constitution Act, 1867.  
[32] Accordingly, the IAA is ultra vires Parliament. Intra-provincial activities requiring a federal  
permit under other valid and applicable federal laws remain subject to those laws but in accordance  
with the terms of such laws, not this legislative scheme.  
[33] In summary, the federal government’s invocation of concerns about the environment and  
climate change that all provincial governments and Canadians share is not a basis on which to tear  
apart the constitutional division of powers.  
11  
Canada Energy Regulator, “Market Snapshot: Crude oil imports decreased in 2020, and so did the cost”, online:  
<https://www.cer-rec.gc.ca/en/data-analysis/energy-markets/market-snapshots/2021/market-snapshot-crude-oil-imp  
orts-decreased-in-2020-and-so-did-the-cost.html> (accessed 7 July 2021). Since daily consumption was estimated at  
2,282,479 barrels a day overall for 2020, the imports that year of 554,700 barrels of oil each day amounted to about  
24.3% of total consumption. The prior year, 2019, Canada imported more than 250,000,000 barrels of oil that year;  
imports that year were about 27.3% of total consumption.  
12  
On April 14, 2021, Alberta signed onto a Memorandum of Understanding originally made between Ontario, New  
Brunswick and Saskatchewan dated December 1, 2019 for the development and deployment of small modular nuclear  
reactors.  
13  
Nor by other democratic nations requiring market access to fossil fuels for crucial purposes during the transition.  
Page: 9  
II. Positions of the Parties  
A.  
Alberta and Intervenors in Support of Alberta  
[34] Alberta argues that the IAA intrudes impermissibly into provincial jurisdiction. It contends  
the IAA is a “Trojan horse”, enabling the federal government, on the pretext of claimed narrow  
grounds of federal jurisdiction, to conduct far-ranging inquiries into matters assigned exclusively  
to the provinces. The result is federal intrusion into areas of core provincial jurisdiction, including  
development of 92A natural resources and local works and undertakings, and an effective federal  
veto over intra-provincial activities and resource development.  
[35] Alberta characterizes the subject matter of the IAA, its pith and substance, as “the  
establishment of a comprehensive impact assessment regime that requires proposed resource  
developments and infrastructure projects to undergo a broad ranging assessment of their impacts,  
environmental and other, and to subject those projects to federal oversight and approval”.14  
[36] Alberta contends that the IAA departs significantly from the predecessor environmental  
assessment legislation and establishes a broad review process that has no jurisdictional connection  
to a federal head of power. Alberta points out that the Regulations designate projects and  
undertakings within exclusive provincial authority, further revealing the extent of the jurisdictional  
overreach. Alberta argues that, in the event this Court concludes the IAA is intra vires, it should  
apply the doctrine of inter-jurisdictional immunity and declare that the IAA does not apply to  
activities and undertakings under exclusive provincial jurisdiction.  
[37] Ontario and Saskatchewan, as well as the Woodland Cree First Nation, the Indian Resource  
Council, the Canadian Taxpayers Federation, the Canadian Association of Petroleum Producers,  
the Canadian Energy Pipeline Association, the Explorers and Producers Association of Canada,  
the Independent Contractors and Businesses Association and the Alberta Enterprise Group all  
intervened in support of Alberta’s position.15 Broadly speaking, these intervenors submit that the  
IAA allows comprehensive federal regulation of intra-provincial activities that do not fall within  
Parliament’s jurisdiction. A number also assert that the IAA represents an attempt by the federal  
government to regulate the management and development of 92A natural resources and undo the  
negotiated compromise agreement reflected in s 92A.  
14  
Factum of the Attorney General of Alberta at para 44.  
15  
Most intervenors endorse the characterization of the pith and substance of the IAA proposed by the level of  
government whose position they support. Some, however, suggested alternative characterizations. For example, the  
Canadian Association of Petroleum Producers: “To establish a comprehensive impact assessment regime to determine  
whether designated infrastructure or resource development projects are consistent with federal objectives and  
policies”.  
Page: 10  
[38] The Woodland Cree and the Indian Resource Council further contend that the IAA  
encroaches on the independence of First Nations groups, unduly restricting their ability to exploit  
their natural resources and represent their peoples. In particular, they argue that the IAA infringes  
on their Aboriginal and treaty rights as protected by s 35 of the Constitution.  
B.  
Canada and Intervenors in Support of Canada  
[39] Canada defends the IAA on the basis it deals only with matters within federal jurisdiction.  
It characterizes the IAA as being focussed merely on the “adverse effects within federal  
jurisdiction” from designated projects, arguing that the Regulations focus on large projects with  
the greatest potential for adverse effects within federal jurisdiction. Canada asserts the federal  
government is entitled to take into account the public interest in deciding whether, and if, it will  
impose conditions on the proponents of projects that will have “adverse effects within federal  
jurisdiction”. And it contends that the decision provisions of the Act restrain the outcome of an  
assessment to “adverse effects within federal jurisdiction”.  
[40] Canada characterizes the subject matter of the IAA as follows:16  
To establish a federal environmental assessment process to protect  
against adverse environmental effects:  
a.  
b.  
on matters within federal jurisdiction (as listed in s 7);  
in the exercise of federal regulatory power in other existing  
federal schemes (s 8); and  
c.  
in relation to projects carried out on federal Crown lands, or  
by federal authorities outside Canada, or which engage the  
provision of financial assistance (ss 81-91).  
[41] Canada submits that the IAA relates to multiple heads of federal jurisdiction and, depending  
on the factual context of a particular project, one or more federal heads of power may be engaged.  
It asserts that the IAA does not regulate intra-provincial designated projects but merely provides  
for an impact assessment to determine if there are any adverse federal effects caused by such  
projects and, if so, then to prohibit or regulate the same. Canada denies that the IAA creates a  
federal veto. In its view, any federal trespass into works, undertakings or activities within the  
legislative jurisdiction of the province is merely incidental to protection of those aspects of the  
environment within federal legislative jurisdiction.  
[42] Nature Canada, Ecojustice Canada Society, MiningWatch Canada Inc., the Canadian  
Environmental Law Association, Environmental Defence Inc., Athabasca Chipewyan First Nation  
16  
Factum of the Attorney General of Canada at para 24.  
Page: 11  
and Mikisew Cree First Nation intervened in support of Canada. They argue the IAA is a  
precautionary tool aimed at safeguarding federal components of the environment. They contend  
the IAA is well within federal constitutional limits and has ample support under s 91 of the  
Constitution Act, 1867.  
[43] The Athabasca Chipewyan First Nation submit that striking down the IAA would restrict  
Indigenous participation in environmental assessments and preclude consideration of Indigenous  
knowledge. The Mikisew Cree First Nation say that, to the extent the IAA permits the federal  
government to assess and make decisions with respect to the impacts of a designated project on  
Aboriginal and treaty rights, it is a valid exercise of federal jurisdiction.  
[44] Several intervenors allude to the importance of evaluating the IAA in a manner respecting  
cooperative federalism. Ecojustice Canada Society argues that the IAA should be upheld under the  
federal criminal law power.17 The Canadian Environmental Law Association, Environmental  
Defence Inc. and MiningWatch Canada Inc. contend the IAA should also be upheld under the  
federal trade and commerce power.  
III. Relevant Provisions of the Constitution  
A.  
Constitution Act, 1867  
[45] The key provisions of the Constitution Act, 1867 follow:  
1.  
Federal Legislative Powers  
91. It shall be lawful for the Queen, by and with the Advice and  
Consent of the Senate and House of Commons, to make Laws for  
the Peace, Order, and good Government of Canada, in relation to all  
Matters not coming within the Classes of Subjects by this Act  
assigned exclusively to the Legislatures of the Provinces; and for  
greater Certainty, but not so as to restrict the Generality of the  
foregoing Terms of this Section, it is hereby declared that  
(notwithstanding anything in this Act) the exclusive Legislative  
Authority of the Parliament of Canada extends to all Matters coming  
within the Classes of Subjects next hereinafter enumerated; that is  
to say,  
...  
1A. The Public Debt and Property.  
17  
Ecojustice Canada Society proposed an alternative characterization of the “matter” of the IAA: “To establish a  
federal environmental assessment process to safeguard against adverse environmental effects on certain matters within  
federal jurisdiction.”  
Page: 12  
2. The Regulation of Trade and Commerce.  
...  
12. Sea Coast and Inland Fisheries.  
...  
24. Indians, and Lands reserved for the Indians.  
...  
27. The Criminal Law ...  
...  
29. Such Classes of Subjects as are expressly  
excepted in the Enumeration of the Classes of  
Subjects by this Act assigned exclusively to the  
Legislatures of the Provinces.  
And any Matter coming within any of the Classes of Subjects  
enumerated in this Section shall not be deemed to come within the  
Class of Matters of a local or private Nature comprised in the  
Enumeration of the Classes of Subjects by this Act assigned  
exclusively to the Legislatures of the Provinces. [Emphasis added]  
132. The Parliament and Government of Canada shall have all  
Powers necessary or proper for performing the Obligations of  
Canada or of any Province thereof, as Part of the British Empire,  
towards Foreign Countries, arising under Treaties between the  
Empire and such Foreign Countries.  
2.  
Provincial Legislative Powers  
92. In each Province the Legislature may exclusively make Laws in  
relation to Matters coming within the Classes of Subjects next  
hereinafter enumerated; that is to say,  
...  
5. The Management and Sale of the Public Lands belonging  
to the Province ...  
...  
Page: 13  
10. Local Works and Undertakings other than such as are of  
the following Classes:  
(a)  
Lines of Steam or other Ships, Railways, Canals,  
Telegraphs, and other Works and Undertakings  
connecting the Province with any other or others of  
the Provinces, or extending beyond the Limits of the  
Province:  
(b)  
(c)  
Lines of Steam Ships between the Province and any  
British or Foreign Country:  
Such Works as, although wholly situate within the  
Province, are before or after their Execution declared  
by the Parliament of Canada to be for the general  
Advantage of Canada or for the Advantage of Two  
or more of the Provinces.  
...  
13. Property and Civil Rights in the Province.  
...  
16. Generally all Matters of a merely local or private Nature  
in the Province.  
B.  
1.  
Key Provisions Added by the Constitution Act, 1982  
Additional Provincial Powers under Amendment to the Constitution Act, 1867  
92A. (1) In each province, the legislature may exclusively make  
laws in relation to  
(a)  
(b)  
exploration for non-renewable natural  
resources in the province;  
development, conservation and management  
of non-renewable natural resources and  
forestry resources in the province, including  
laws in relation to the rate of primary  
production therefrom; and  
(c)  
development, conservation and management  
of sites and facilities in the province for the  
Page: 14  
generation and production of electrical  
energy.  
...  
(6) Nothing in subsections (1) to (5) derogates from any powers or  
rights that a legislature or government of a province had  
immediately before the coming into force of this section.  
2.  
Procedure for Amending the Constitution  
38. (1) An amendment to the Constitution of Canada may be made  
by ...  
(b) resolutions of the legislative assemblies of at least  
two-thirds of the provinces that have, in the  
aggregate, ... at least fifty per cent of the population  
of all the provinces.  
...  
(3) An amendment [that derogates from the legislative powers,  
proprietary rights or any other rights or privileges of the legislature  
or government of a province] shall not have effect in a province the  
legislative assembly of which has expressed its dissent thereto by  
resolution supported by a majority of its members ...  
IV. The Environment and the Division of Powers  
A.  
The Environment is a Constitutionally Abstruse Matter  
[46] The environment has not been assigned to either Parliament or provincial Legislatures  
under the Constitution Act, 1867. Nor has the environment been allocated to the federal  
government under the national concern doctrine.18 If it were, provincial governments would not  
be constitutional equals. They could do what they were permitted by the federal government. And  
nothing more.  
[47] Instead, the courts have recognized that the environment is “a constitutionally abstruse  
matter which does not comfortably fit within the existing division of powers without considerable  
overlap and uncertainty”: Oldman River at 64. Understood generically as encompassing “the  
physical, economic and social”, the “environment” necessarily touches on “several of the heads of  
power assigned to the respective levels of government”: ibid. at 63. Thus, regulation of the  
18  
As noted in Dale Gibson, “Constitutional Jurisdiction over Environmental Management in Canada” (1973) 23:1  
UTLJ 54 at 85 [Gibson]: “it is no less obvious that ‘environmental management’ could never be treated as a  
constitutional unit under one order of government in any constitution that claimed to be federal, because no system in  
which one government was so powerful would be federal.”  
Page: 15  
environment, including regulation of pollution, has some provincial aspects and some federal  
aspects: ibid. at 69; Quebec (Attorney General) v Moses, 2010 SCC 17 at para 36, [2010] 1 SCR  
557 [Moses SCC].  
[48] Both levels of government may affect the environment (either by acting or not acting) but  
only within the legislative powers specifically assigned to each: Oldman River at 65. In other  
words, to be valid, a legislative provision must be “linked to the appropriate head of power”, as in  
“sufficiently linked” to that head of power: ibid. at 67-68. Identifying a specific head of power is  
also important because the extent to which environmental concerns may be taken into account by  
the relevant government will vary based on the scope of the power: ibid. at 67; R v Hydro-Québec,  
[1997] 3 SCR 213 at paras 114, 117 [Hydro-Québec].  
B.  
Environmental Impact Assessments Are Not Within Parliament’s Exclusive  
Jurisdiction  
[49] Neither level of government has exclusive jurisdiction over environmental impact  
assessments. Like the environment more generally, impact assessments are not explicitly  
enumerated as a head of power under ss 91 or 92 of the Constitution Act, 1867. Indeed, both  
Canada and Alberta have long exercised their jurisdiction in this area. Alberta has provided for  
environmental impact assessments in legislation since 1973: see The Land Surface Conservation  
and Reclamation Act, SA 1973, c 34, s 8; P.S. Elder, “Environmental Impact Assessment in  
Alberta” (1985) 23:2 Alta L Rev 286 at 296-298. Canada, meanwhile, first set out formal  
regulations dealing with environmental impact assessments in the 1984 Guidelines Order.  
C.  
Joint Federal-Provincial Environmental Accords  
[50] As a consequence of Oldman River, it became apparent that some form of joint approach  
by federal and provincial governments to environmental impact assessments involving intra-  
provincial activities was desirable. To reduce overlap and duplication of environmental  
assessments, the federal government and individual provincial governments have entered into  
various accords.19 For example, since 1993, Canada and Alberta have had a bilateral agreement,  
the Canada-Alberta Agreement for Environmental Assessment Cooperation, which contemplates  
joint panel reviews.20 The most recent version of this non-binding bilateral agreement, the 2005  
Canada-Alberta Agreement on Environmental Assessment Cooperation [Bilateral Agreement] sets  
19  
The Canada-Wide Accord on Environmental Harmonization was signed January 29, 1998 by the Canadian Council  
of Members of the Environment with the exception of Québec. While not legally binding, it signalled an intention at  
both the federal and provincial levels to eliminate overlap and duplication in environmental management matters.  
Three sub-agreements were also approved, including one on Environmental Assessment.  
20  
While the first version of this bilateral agreement dates to 1993, Canada and Alberta had a different earlier bilateral  
agreement in place, that is the Canada-Alberta Accord for the Protection and Enhancement of Environmental Quality  
(8 October 1975).  
Page: 16  
out the mechanisms for conducting a joint panel review, including a framework for determining  
the lead jurisdiction.21  
[51] A cooperative approach between the federal government and a provincial government does  
not mean that the provincial government has relinquished its jurisdiction to the federal  
government. Or vice versa. Neither has a right to cede its constitutional jurisdiction to the other  
whether because of concerns about the environment or climate change or otherwise. If the division  
of powers is to be changed, this must be done by constitutional amendment, not constitutional  
surrender.  
V. History of Prairie Provinces - Ownership of Natural Resources and Section 92A  
[52] To appreciate the intended scope of provincial power over natural resources, a brief review  
of the constitutional history of how the prairie provinces came to acquire ownership and control  
of these resources is warranted.  
A.  
Prairie Provinces Secure Ownership of Their Natural Resources  
[53] Unlike other provinces, for decades following their entering into Confederation, the prairie  
provinces were denied ownership of the natural resources in their provinces. When Alberta became  
a province in 1905, the Alberta Act, 4 & 5 Edw. VII, c 3, s 21 continued to vest all Crown lands,  
including mines and minerals, in the federal Crown. Saskatchewan was not granted ownership of  
its resources either when it became a province that same year. Nor was Manitoba when it entered  
Confederation decades earlier in 1870.  
[54] This finally changed with the Natural Resources Acts passed in 1930 by Parliament and  
the Legislatures in each of Alberta, Saskatchewan and Manitoba.22 These Natural Resources Acts  
incorporated Memorandums of Agreement made between the Dominion of Canada and each  
province dated December 14, 1929. The Agreements explicitly recognized both as a recital and in  
their operative provisions that the prairie provinces had been in a position of inequality vis à vis  
other provinces because they did not own their natural resources. In particular, as set out in the  
preamble to each, the intent was to put each signing province “in a position of equality with the  
other provinces of Confederation with respect to the administration and control of its natural  
resources”. The Agreements thus provided that the Dominion of Canada would transfer all Crown  
lands, mines and minerals in each province to that province so that they might be in the same  
position as the original provinces of Confederation.  
21  
It also contemplates that the information generated will be used in the provincial and federal government’s  
respective decision-making: s 6.20. This is subject however to legislation to the contrary at either level.  
22  
See Alberta Natural Resources Act, SC 1930, c 3; Manitoba Natural Resources Act, SC 1930, c 29 and  
Saskatchewan Natural Resources Act, SC 1930, c 41.  
Page: 17  
[55] The British Parliament then passed the British North America Act, 1930, 20-21 Geo. V,  
c 26, (now called the Constitution Act, 1930) and made all their provisions law. As a consequence,  
that Imperial constitutional law entrenched the prairie provinces’ ownership of their natural  
resources in the Constitution, thereby overriding any contrary federal or provincial legislation.23  
This put the prairie provinces in the same position as the provinces (Ontario, Quebec, Nova Scotia  
and New Brunswick) that retained ownership of their natural resources at Confederation under  
s 109 of the Constitution Act, 1867: Gerald V. La Forest, Natural Resources and Public Property  
under the Canadian Constitution (Toronto: University of Toronto Press, 1969) at 34-36 [La  
Forest]; Re Exported Natural Gas Tax, [1982] 1 SCR 1004 at 1055-1056 [Natural Gas Tax].  
[56] Ownership brought the prairie provinces the right to exploit their natural resources and, in  
turn, greater financial security: Natural Gas Tax at 1080. They also gained a number of significant  
new powers, including the power to limit production for conservation purposes: Spooner Oils Ltd  
v Turner Valley Gas Conservation, [1933] SCR 629. They could regulate their newly Crown-  
owned natural resources under s 109 by virtue of s 92(5) of the Constitution Act, 1867. This section  
confers exclusive jurisdiction on the provinces over the management of public lands, including  
mines and minerals. Provincial ownership also provided revenue in the form of royalties from  
Crown leases. As for freehold leases, provinces possess legislative authority to regulate non-  
Crown owned resources by virtue of s 92(13) (property and civil rights) and s 92(16) (local or  
private matters).  
B.  
Federal Government Interventions and Pressures for Constitutional Reform  
[57] Resource ownership provided Alberta with a measure of security over the development of  
its natural resources for over four decades between 1930 and 1973. However, provincial ownership  
rights were still subject to laws enacted by Parliament under its heads of power. This could  
negatively affect property owned by a province without for that reason alone being rendered  
unconstitutional: La Forest at 147-148; Reference re Waters and Water-Powers, [1929] SCR 200  
at 212, 219; Attorney-General for Quebec v Nipissing Central Railway Company, [1926] AC 715  
at 723-724 (PC) [Nipissing Central Railway]. Accordingly, at that stage, ownership rights alone  
were often considered insufficient to determine jurisdiction over a matter.24 After large oil reserves  
were discovered at Leduc in 1947, leading to a rapid expansion of oil production in Alberta,  
Canada implemented several energy policies with wide-ranging effect. That included the National  
Oil Policy of 1961 that divided the country’s oil source between east (foreign) and west  
(domestic).25  
23  
The Newfoundland Act, 1949 12 & 13 Geo. V1, c 22 (UK) placed Newfoundland in the same position. But the  
Terms of Union did not provide for it to retain ownership of offshore oil and gas resources which, absent Union, would  
have arguably belonged to Newfoundland. Under the Atlantic Accord, February 11, 1985, Canada and Newfoundland  
and Labrador finally reached an agreement on the joint management of the province’s offshore oil and gas resources  
and the sharing of revenues from their exploitation.  
24  
See for example Gibson at 60.  
25  
Brendan Downey et al., “Federalism in the Patch: Canada’s Energy Industry and the Constitutional Division of  
Page: 18  
[58] It was not until the 1973 OPEC embargo sharply increased world oil prices that federal  
government actions raised provincial concerns, resulting in escalating actions on both sides.  
Beginning in 1973, the federal government enacted a series of measures which directly affected  
oil and gas resources owned by the provinces. These included an oil export tax, a national market  
for oil and the Petroleum Administration Act, SC 1974-75-76, c 47 [Petroleum Act]. The Petroleum  
Act gave the federal government authority to set oil and gas prices unilaterally. Collectively, these  
actions directly and adversely affected the western provinces: See J. Peter Meekison & Roy J.  
Romanow, “Western Advocacy and Section 92A of the Constitution” in J. Peter Meekison, Roy J.  
Romanow & William D. Moull, eds, Origins and Meaning of Section 92A: The 1982  
Constitutional Amendment on Resources (Montreal: The Institute for Research on Public Policy,  
1985) 3 [Meekison & Romanow].  
[59] As early as 1975, provincial premiers concluded that discussions on the Constitution should  
include a general review of the division of powers and, in particular, the control of natural  
resources, which was put on the agenda at the 1976 First Ministers’ conference: Meekison &  
Romanow at 10. Provincial concerns about the scope of their existing jurisdiction over natural  
resources were further heightened by litigation in Saskatchewan that culminated in two Supreme  
Court decisions, Canadian Industrial Gas & Oil Ltd v Government of Saskatchewan et al, [1978]  
2 SCR 545 [CIGOL] and Central Canada Potash Co Ltd et al v Government of Saskatchewan,  
[1979] 1 SCR 42 [Potash]: Meekison & Romanow at 3, 7-10. In Saskatchewan’s view, those  
decisions undermined the jurisdiction the provinces thought they had over natural resources.  
[60] CIGOL involved Saskatchewan’s attempt to capture the increased value of oil after the  
OPEC embargo.26 Saskatchewan imposed a “mineral income tax” on oil production subject to  
freehold leases and a “royalty surcharge” on Crown leases. The Supreme Court held that because  
most of the oil was for export, the charges were “export taxes”. That meant the province had no  
power to impose either since export taxes involve interprovincial or international trade, a subject  
of federal jurisdiction under s 91(2). The Supreme Court also characterized both the income tax  
and royalty surcharge as “indirect taxes” which provinces are not competent to impose under  
s 92(2).  
[61] In Potash, the Supreme Court struck down Saskatchewan’s rationing scheme aimed at  
controlling the amount of potash produced in the province. It held that notwithstanding a  
province’s general ability to control the production of its natural resources, since most of the potash  
was marketed outside the province, the scheme was an impermissible intrusion on federal  
jurisdiction over interprovincial and international trade under s 91(2).  
Powers” (2020) 58:2 Alta L Rev 273 at 276.  
26  
The litigation was a battle between a province and the private sector: Robert D. Cairns et al., “Constitutional Change  
and the Private Sector: The Case of the Resource Amendment” (1986) 24:2 Osgoode Hall L J 299 at 301, 308.  
Page: 19  
[62] Given this history, by 1978, Alberta and Saskatchewan led the negotiations on behalf of  
the provinces for a constitutional amendment that would expressly confirm and strengthen the  
provinces’ ability to develop, manage and control their natural resources. This was partly in  
response to the federal government’s having that same year tabled a constitutional amendment bill  
omitting any reference to s 109 of the Constitution Act, 1867. Provincial concerns also related to  
resource taxation, the federal declaratory power, the federal emergency power and indirect  
taxation: Meekison & Romanow at 10-14.  
[63] In 1980, further tensions arose when the federal government introduced the National  
Energy Program (NEP) and invoked those parts of the Petroleum Act enabling it to unilaterally  
establish prices for oil and natural gas. It was the federal government’s view that the rest of Canada,  
and not just the oil producing provinces, should benefit financially from the rapid rise in oil prices.  
Alberta disagreed. So too did other western provinces. As explained in Meekison & Romanow at  
24: “The NEP was seen by the three western provinces as a major assault on provincial ownership  
and jurisdiction over resources”.  
C.  
1.  
Constitutional Compromise  
Section 92A Resource Amendment  
[64] Developments in September 1981 set the stage for a negotiated agreement to resolve the  
constitutional impasse over resource control and management. First, the Supreme Court found the  
federal government’s unilateral attempt to patriate the Constitution contrary to constitutional  
convention: Re: Resolution to amend the Constitution, [1981] 1 SCR 753. Second, Alberta and  
the federal government signed an oil and gas pricing and revenue sharing agreement that brought  
the immediate dispute over the NEP to an end: Howard Leeson, The Patriation Minutes  
(Edmonton: Centre for Constitutional Studies, Faculty of Law, University of Alberta, 2011) at 13,  
23.  
[65] It was against this background that the federal and provincial governments finally reached  
a compromise regarding provincial powers over natural resources which allowed the Constitution  
to be patriated.27 For Alberta and Saskatchewan, two key components of that compromise, which  
were part of the patriation package signed April 17, 1982, were the inclusion of s 92A (sometimes  
called the “Resource Amendment”) in Part VI of the Constitution Act, 1982 which amended the  
Constitution Act, 1867, and s 38, the opt-out right, under the amending formula in Part V of the  
Constitution Act, 1982.  
[66] Section 92A provides for exclusive provincial jurisdiction in three areas: (i) exploration for  
non-renewable natural resources; (ii) the development, conservation and management of non-  
renewable natural resources and forestry resources; and (iii) the development, conservation and  
management of sites and facilities for the generation and production of electrical energy  
27  
Québec did not agree to the terms of patriation.  
Page: 20  
(s 92A(1)). It also provides for concurrent or non-exclusive jurisdiction in two areas: (i) the export  
of natural resources from the province (s 92A(2)); and (ii) taxing powers over natural resources  
(s 92A(4)).  
2.  
Section 38 Opt-Out Right  
[67] Section 38, the opt-out right, which was part of the constitutional compromise, informs the  
purpose and intended scope of s 92A. Alberta and Saskatchewan had insisted that provinces’  
proprietary rights to their natural resources, including their development rights under s 92A, be  
protected in any constitutional amending formula. Thus, the general amending formula under  
s 38(1) of the Constitution Act, 1982 (requiring an agreement by at least 2/3 of the provinces with  
at least 50% of the Canadian population and the federal government) is subject to a further  
limitation, an opt-out right which protects the provinces’ control over their natural resources.  
[68] That opt-out right, set out in s 38(3) of the Constitution Act, 1982, allows an individual  
province to opt out of any future constitutional amendment that derogates from the legislative  
powers, proprietary rights or any other rights or privileges of a province.28 This was designed to  
ensure that no constitutional amendment in the future could strip any province of its proprietary  
rights and its exclusive right, confirmed in s 92A, to develop its natural resources for the benefit  
of its citizens. In other words, when Premiers Allan Blakeney and Peter Lougheed insisted on the  
inclusion of s 92A and the opt-out right as conditions of agreeing to patriation of the Constitution,  
they took the steps necessary to protect their citizens against future legislative intrusion by other  
governments, including the federal government.  
3.  
Section 36 Economic Development and Equalization  
[69] The Constitution Act, 1982 also included s 36 which provides:  
36. (1) Without altering the legislative authority of Parliament or of  
the provincial legislatures, or the rights of any of them with respect  
to the exercise of their legislative authority, Parliament and the  
legislatures, together with the government of Canada and the  
provincial governments, are committed to  
(a) promoting equal opportunities for the well-being of Canadians;  
(b) furthering economic development to reduce disparity in  
opportunities; and  
28  
Under s 38(3), if an amendment under the prescribed amending formula in s 38(2) derogates from the legislative  
powers, proprietary rights or any other rights or privileges of a province, then under s 38(3), that amendment shall  
have no effect in a province that opts out of the amendment.  
Page: 21  
(c) providing essential public services of reasonable quality to all  
Canadians.  
(2) Parliament and the government of Canada are committed to the  
principle of making equalization payments to ensure that provincial  
governments have sufficient revenues to provide reasonably  
comparable levels of public services at reasonably comparable  
levels of taxation. [Emphasis added]  
[70] This part of the constitutional bargain on patriation commits both the federal and provincial  
governments and Parliament and the Legislatures to “promoting equal opportunities for the well-  
being of Canadians” and “furthering economic development to reduce disparity in opportunities”:  
ss 36(1)(a) and (b), emphasis added. It also commits Parliament and the government of Canada to  
make “equalization payments to ensure that provincial governments have sufficient resources to  
provide reasonably comparable levels of public services at reasonably comparable levels of  
taxation”: s 36(2). Sections 36(1)(a) and (b) established a means whereby the federal government’s  
commitment to equalization payments would be assisted by the provinces having equal  
opportunities and being able to further their economic development. These sections were  
important, not just as aspirational statements, but to underscore equality of opportunity for  
development of a province’s natural resources.  
[71] Since patriation, Alberta has contributed to the federal government hundreds of billions of  
dollars more than it has received.29 These funds have in turn assisted the federal government in its  
financial capacity to make equalization payments to other provinces. Alberta’s agreement to s 36,  
including the concept of equalization payments, was based not only on the inclusion of the  
Resource Amendment and the s 38 opt-out right but also on the federal government’s commitment  
to further economic development.  
4.  
Conclusion  
[72] In summary, s 92A represents a clear, deliberate negotiated amendment to the Constitution  
intended to assure exclusive provincial jurisdiction over the exploration, development,  
29  
Alberta has not received equalization payments for decades: Trevor Tombe, “'Final and Unalterable' — But Up for  
Negotiation: Federal-Provincial Transfers in Canada” (2018) 66:4 Canadian Tax Journal 871. Net federal fiscal  
transfers by Alberta, which include money for equalization payments, money for the Canada Health Transfer and  
money for the Canada Social Transfer totalled $240 billion for the 12 years alone from 2007 to and including 2018:  
Statistics Canada, “Revenue, expenditure and budgetary balance - General governments, provincial and territorial  
economic  
accounts  
(x  
1,000,000)”,  
online:  
(2021)  
<https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3610045001>. In 2020, because of the pandemic, Alberta,  
like every other provincial government in this country, received more than it contributed to the federal government.  
That, of course, is because the federal government has incurred substantial debt to support Canadians through the  
pandemic.  
Page: 22  
management and conservation of a province’s 92A natural resources. 30 Nor can s 92A be  
interpreted in a constitutional vacuum. It is directly linked to other provisions critical to the  
provinces’ agreement to patriation, namely the amending formula, the provincial opt-out right  
under s 38(3) and the provisions under s 36 of the Constitution Act, 1982. This was the  
constitutional bargain made. And it is one the provinces are entitled to have honoured. To borrow  
a phrase from Beetz J in Bell Canada v Quebec (Commission de la santé et de la sécurité du  
travail), [1988] 1 SCR 749 at 840, the constitutional amendments agreed to on patriation could  
have been different, but they are not.31  
D.  
Role of the Courts  
[73] Under the Constitution Act, 1982, the power to amend the Constitution was given  
exclusively to the legislative branch. Accordingly, the courts should not permit judicial decisions  
to be used to sidestep the amending formula and render the opt-out right nugatory. As Lord Sankey  
cautioned in In Re The Regulation and Control Of Aeronautics In Canada, [1932] AC 54 at 70,  
judicial interpretation should not be allowed “to dim or to whittle down the provisions of the  
original contract upon which the federation was founded”.32 Or, we would add, the constitutional  
amendments agreed to on patriation. Incremental changes in favour of the federal government,  
once sanctioned, may well encourage the federal government to expand its jurisdictional reach  
further yet. And if that expansion should then be approved by the courts, it becomes difficult to  
deny that the Constitution has been amended by judicial fiat.33 Thus, the courts must ensure that  
the constitutional bargain agreed to on patriation is respected and the division of powers dividing  
line maintained.  
30  
Section 92A(6) makes it clear that nothing in s 92A reduces the provinces’ powers under other provisions in the  
Constitution. It does not limit in any way the province’s ownership rights under s 92(5) and s 109 of the Constitution  
Act, 1867.  
31  
Beetz J stated, in reference to Parliament’s power over federal undertakings including in respect of employer-  
employee relations: “If this power is exclusive, it is because the Constitution, which could have been different but is  
not, expressly specifies this to be the case; and it is because this power is exclusive that it pre-empts that of the  
legislatures both as to their legislation of general and specific application, in so far as such laws affect a vital part of  
a federal undertaking. The exclusivity rule is absolute and does not allow for any distinction between these two types  
of statute.”  
32  
In warning about judicial interpretations moving away from the original meaning of the text “from what has been  
enacted to what has been judicially said about the enactment”, Lord Sankey added this at 70: “To borrow an analogy;  
there may be a range of sixty colours, each of which is so little different from its neighbour that it is difficult to make  
any distinction between the two, and yet at the one end of the range the colour may be white, and at the other end of  
the range black. Great care must therefore be taken to consider each decision in the light of the circumstances of the  
case in view of which it was pronounced, especially in the interpretation of an Act such as the British North America  
Act, which was a great constitutional charter, and not to allow general phrases to obscure the underlying object of the  
Act, which was to establish a system of government upon essentially federal principles. Useful as decided cases are,  
it is always advisable to get back to the words of the Act itself and to remember the object with which it was passed.”  
33  
Hogg has made this point in the context of amending the Constitution through judicial law-making and the  
“discovery (meaning invention) by the courts of ‘unwritten constitutional principles’ ....”: Peter Hogg & Wade Wright,  
Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007) (loose-leaf updated 2021) at §15:28 [Hogg].  
Page: 23  
VI. The Purpose and Scope of the Resource Amendment  
Introduction  
A.  
[74] Some seem to think, or prefer to think, that s 92A is a constitutional nothing. And that it  
merely affirmed the powers provinces already had as owners of their natural resources. But the  
historical record with respect to the negotiations leading up to its inclusion in the Constitution and  
the actual wording of the constitutional text indicate otherwise. The addition of s 92A to Canada’s  
Constitution was not a gift from the federal government to the provinces; it was a negotiated  
compromise. There is no doubt that the provinces understood that s 92A added to their jurisdiction.  
To secure the federal government’s agreement to the addition of s 92A took more than two years  
of hard-fought negotiations. In exchange for the agreement of Alberta and Saskatchewan, and other  
provinces as well, to patriate the Constitution, the federal government agreed to include s 92A in  
the Constitution.  
[75] Neither Parliament nor Legislatures enact for no reason: Alberta (Education) v Canadian  
Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at para 47, [2012] 2 SCR 345, per  
Rothstein J (in dissent but not on this point). Nor do either intend words used in legislation to be  
redundant: Medovarski v Canada (Minister of Citizenship and Immigration); Esteban v Canada  
(Minister of Citizenship and Immigration), 2005 SCC 51 at para 31, [2005] 2 SCR 539.  
Therefore, no legislative provision should be interpreted so as to render it mere surplusage: R v  
Proulx, 2000 SCC 5 at para 28, [2000] 1 SCR 61. That interpretive approach applies with even  
more force to constitutional amendments. Changes are not made to a constitution for no purpose.  
B.  
Purpose of the Resource Amendment  
[76] Prior to the Resource Amendment, the provincial governments were well aware how their  
proprietary rights as owners of their natural resources had been curtailed. To eliminate ambiguity  
and ensure that a full array of both legislative and proprietary powers were available to the  
provinces as owners of their 92A natural resources, the provinces sought, and secured, a  
constitutional amendment that defined with precision exactly what provincial governments had the  
exclusive jurisdiction to do as owners of those resources.  
C.  
Scope of the Resource Amendment  
[77] The significance of the Resource Amendment was noted by William D. Moull in “Natural  
Resources and Canadian Federalism: Reflections on a Turbulent Decade” (1987) 25:2 Osgoode  
Hall LJ 411 at 413 [Moull]:  
[The Resource Amendment] was the only component of the 1982  
constitutional patriation package that purported to alter the division  
of federal-provincial legislative powers, and it represents the first  
Page: 24  
amendment to the Constitution since Confederation that has had the  
effect of enhancing the legislative authority of the provinces.  
[78] What then is the scope of provincial jurisdiction under s 92A? Rather than merely add to  
the catalogue of heads of power under s 92, s 92A(1) sets out in detail the provinces’ exclusive  
powers vis à vis their 92A natural resources. In particular, s 92A(1) expressly provides that “[i]n  
each province, the legislature may exclusively make laws in relation to (a) exploration for non-  
renewable natural resources in the province; (b) development, conservation and management of  
non-renewable natural resources and forestry resources in the province ...; and (c) development,  
conservation and management of sites and facilities in the province for the generation and  
production of electrical energy” (emphasis added).  
[79] Provincial powers under s 92A are very broad, extending from one end of the exploitation  
of 92A natural resources, exploration, to the other end, export and everything in between,  
covering as they do exploration, development, management and conservation. The wording under  
s 92A was not simply prudent drafting about the scope of provincial jurisdiction. It was designed  
to assure provincial governments that the powers listed therein, all of which are also consistent  
with proprietary rights, were within their exclusive control. Section 92A(6) reinforces the  
exclusivity of provincial powers under s 92A(1). It provides that nothing in subsections (1) to (5)  
derogates from any rights or powers that a legislature or government of a province had immediately  
before the coming into force of s 92A.34  
[80] Hence, the extent to which the IAA interferes with provincial jurisdiction must be assessed  
in light of the provinces’ powers under s 92A(1). This section is not constitutionally inferior to ss  
91 or 92. To the extent ambiguity existed with respect to a province’s exclusive right to exploit the  
92A natural resources it owned, s 92A put this beyond doubt. No principled reason exists to  
diminish the full import of the exclusive jurisdiction conferred on the provinces under s 92A(1).  
D.  
Significance of the Resource Amendment  
[81] Section 92A does not override Parliament’s “Peace, Order, and good Government”  
(POGG) power nor its powers under both s 92(10)(a) vis à vis interprovincial undertakings and s  
92(10)(c) to declare a work or undertaking for the benefit of Canada or two or more provinces:  
Ontario Hydro v Ontario (Labour Relations Board), [1993] 3 SCR 327 [Ontario Hydro];  
Westcoast Energy Inc. v Canada (National Energy Board), [1998] 1 SCR 322 at paras 80-84.35  
But short of the proper invocation of these powers, the purpose of s 92A, when passed, was to  
ensure that the approval of projects for the exploration, development, conservation and  
management of 92A natural resources was vested exclusively in the province that owned them.  
34  
Section 92A does not contain a reciprocal provision in favour of Parliament or the federal government. While  
Parliament’s jurisdiction is addressed in s 92A(3), that is only with respect to Parliament’s authority to enact laws in  
relation to the matters referred to in s 92A(2), that is relating to the export of natural resources from a province.  
35  
Or Parliament’s powers under s 92(10)(b).  
Page: 25  
[82] Provincial jurisdiction over natural resources is “one of the mainstays of provincial power”:  
Ontario Hydro at 376. Deciding the terms and conditions under which a project to exploit these  
natural resources will be constructed and operated goes directly to a province’s power to decide  
how best to manage, and the conditions under which it will permit the development of, its 92A  
natural resources. That is inextricably linked in turn to a crucial concern of any provincial  
government, namely its economy.  
[83] Provincial governments should not be faulted for focussing their attention on matters  
important to their citizens. That includes not only the environment but also the economy. It is a  
false dichotomy to suggest that the two are mutually exclusive. Without a strong economy, a  
province’s ability to respond to the needs of its citizens, including meeting the challenges of  
climate change, is diminished. Moreover, if a provincial government is not responsible and  
accountable for managing its economy and natural resources for the benefit of its citizens, then  
who is?  
VII. Overview of Environmental Impact Assessment Legislation Federally  
A.  
1.  
Brief Historical Review of Federal Legislation  
Environmental Assessment and Guidelines Order  
[84] The first mandatory federal environmental assessment process was the Guidelines Order  
issued in 1984 under the Department of the Environment Act, RSC 1985, c E-10, s 6.36 The  
Guidelines Order required all federal departments and agencies with “decision making  
responsibility” for any “proposal” involving an “initiative, undertaking or activity” that might have  
an environmental effect on an area of federal responsibility to initially screen the proposal to  
determine whether it may cause any adverse environmental effects.  
[85] The Supreme Court upheld the Guidelines Order as constitutional in Oldman River, and  
affirmed its mandatory nature. However, La Forest J linked federal environmental review of  
projects otherwise within exclusive provincial jurisdiction to the existence of a specific  
“affirmative regulatory duty” on the part of the federal government, in that case under the  
Navigable Waters Protection Act, RSC 1985, c N-22 [Navigable Waters Protection Act].37 He also  
determined that the federal assessment could only “affect matters that are ‘truly in relation to an  
institution or activity that is otherwise within [federal] legislative jurisdiction’”: Oldman River at  
72, citing Devine v Quebec (Attorney General), [1988] 2 SCR 790 at 808.38  
36  
Originally the Government Organization Act, 1979, SC 1978-79, c 13, s 14.  
37  
The term “responsibility” meant the federal government “must have an affirmative regulatory duty pursuant to an  
Act of Parliament which relates to the proposed initiative, undertaking or activity”: Oldman River at 47.  
38  
The Guidelines Order was said to be “supported by the particular head of federal power invoked in each instance”  
Page: 26  
2.  
Canadian Environmental Assessment Act, 1992  
[86] In 1992, Parliament enacted the Canadian Environmental Assessment Act, SC 1992, c 37  
[CEAA 1992]. It was not proclaimed in force until 1995 when the Law List Regulations, SOR/94-  
636 [Law List Regulations] issued under s 59(f) of CEAA 1992 came into force.39  
[87] CEAA 1992 was also “decision-based”, setting out four main categories of federal decisions  
under which a project would be subjected to an environmental assessment.40 Three related to the  
federal government’s exclusive jurisdiction.41 The fourth category was where a federal authority  
under a provision prescribed by the Law List Regulations issued a permit or licence, granted an  
approval or took any other action for the purpose of enabling the project to be carried out in whole  
or in part: s 5(1)(d).42 Only those intra-provincial projects in this category, in other words those  
requiring a federal permit, were compelled to undergo an environmental assessment under CEAA  
1992.  
[88] The extent of the assessment varied by project.43 CEAA 1992 contemplated four levels of  
assessment, each with increasing requirements: screenings, comprehensive studies, mediations and  
panel reviews. Screenings were the default unless the project was listed in the Comprehensive  
Study List Regulations, SOR/94-638 [Comprehensive Study List Regulations] or excluded.44  
[89] Until the Supreme Court’s decision in MiningWatch Canada v Canada (Fisheries and  
Oceans), 2010 SCC 2, [2010] 1 SCR 6 [Red Chris], a federal Minister or “responsible authority”  
under CEAA 1992 was considered to have the discretion to limit the “scope” of the assessment of  
a proposed project to the component thought to fall within federal jurisdiction as opposed to  
assessing the entire project as proposed by the proponent (e.g., assessing a dam close to a mine  
because it included “the necessary element of proximity that must exist between the impact assessment process and  
the subject matter of federal jurisdiction involved”: Oldman River at 72.  
39  
It was given royal assent June 1992 and proclaimed in force January 1995.  
40  
Section 5(1), subject to certain exclusions in s 7.  
41  
Where a “federal authority” (1) proposed the project; (2) provided financial assistance to a project; or (3) sold,  
leased or disposed of federal land: s 5(1)(a)-(c).  
42  
The Law List Regulations listed various federal statutory provisions whose application to a project, including intra-  
provincial projects, “triggered” the federal assessment.  
43  
CEAA 1992, ss 14, 18, 21, 40.  
44  
Screenings and comprehensive studies are examples of “self-assessment” under which the relevant authority that  
proposed to exercise a duty or function assessed the project themselves. Panel reviews were undertaken by independent  
expert bodies, often jointly with another jurisdiction.  
Page: 27  
rather than the entire mine).45 This was called “scoping to trigger”.46 Scoping to trigger had  
implications for which “track” a project would fall under. While a proposed project might be listed  
in the Comprehensive Study List Regulations and thereby require a “comprehensive study”,  
scoping the project to include only the portion purportedly falling within federal jurisdiction could  
take it out of that category such that only a “screening” would be required.  
[90] This “scoping to trigger” approach had been approved in Federal Court of Canada  
decisions: Manitoba’s Future Forest Alliance v Canada (Minister of Environment), [1999] FCJ  
No 903 (QL) (TD); Friends of the West Country Assn. v Canada (Minister of Fisheries and  
Oceans), [2000] 2 FC 263 (CA).47 These decisions preceded amendments made to CEAA 1992 in  
2003 which changed the requirements for projects in the “comprehensive study list” by explicitly  
providing for “public consultation” with respect to the proposed scope of the project.  
[91] Later, in Red Chris, despite Canada’s submission that nothing in the 2003 amendments to  
CEAA 1992 was intended to change the practice of scoping to trigger, the Supreme Court  
determined otherwise. It found that the public consultation must take place prior to the actual  
scoping decision and that the environmental assessment track was determined by the proposed  
project, not by the scoping decision of the federal authority: Red Chris at para 34.48 In other words,  
“scoping to trigger” could not be used to assess only part of a project.49  
[92] In 2010, following Red Chris, the federal government amended CEAA 1992 as part of an  
omnibus budget bill called the Jobs and Economic Growth Act, SC 2010, c 12 (Bill C-9) [Jobs and  
Economic Growth Act]. These amendments effectively overruled Red Chris.50 Bill C-9 restored  
“scoping to trigger” by giving the Minister of the Environment the power to scope projects down  
to their components. It also reduced public participation in the comprehensive study process.51  
45  
As explained by Marie-Ann Bowden & Martin Z. P. Olszynski in “Old Puzzle, New Pieces: Red Chris and  
Vanadium and the Future of Federal Environmental Assessment” (2010) Can Bar Rev 445 at 452 [Bowden &  
Olszynski]: “This practice involved separating a development proposal into a list of components and then only  
‘scoping-in’ those which required federal regulatory approval ....”  
46  
Bowden & Olszynski trace this history from CEAA 1992 to the Supreme Court’s decisions in Red Chris and Moses  
SCC.  
47  
It was also approved in Prairie Acid Rain Coalition v Canada (Minister of Fisheries and Oceans), 2006 FCA 31,  
[2006] 3 FCR 610.  
48  
The Supreme Court reasoned that while s 15 of CEAA 1992 granted the Minister discretion in terms of scope of the  
project, the presumed scope was as proposed and the Minister’s discretion was limited to increasing its scope.  
49  
The constitutionality of CEAA 1992 was not challenged on this point.  
50  
These 2010 amendments in Bill C-9 involving CEAA 1992 (see ss 2152-2161) included adding s 15.1 to CEAA  
1992 (see s 2155 of Jobs and Economic Growth Act), which stated as follows: “Despite section 15, the Minister may,  
if the conditions that the Minister establishes are met, determine that the scope of the project in relation to which an  
environmental assessment is to be conducted is limited to one or more components of that project” (emphasis added).  
51  
Specifically, s 2156 of Bill C-9 amended s 21 of CEAA 1992 to remove the “requirement for public consultation on  
Page: 28  
the proposed scoping of comprehensive studies”: see Robert B Gibson, “Three analyses of the amendments to the  
Canadian Environmental Assessment Act made through the Budget Implementation Act 2010” (2010) 51 CELR 184.  
Page: 29  
3.  
Canadian Environmental Assessment Act, 2012  
[93] In 2012, Parliament replaced CEAA 1992 with the Canadian Environmental Assessment  
Act, 2012, SC 2012, c 19, s 52 [CEAA 2012] which addressed a number of provincial concerns.52  
CEAA 2012 was never the subject of a constitutional challenge by any of the provinces.  
[94] First, Parliament attempted to minimize the identified problems arising from duplicate  
environmental impact assessments where an intra-provincial activity was involved, namely  
jurisdictional uncertainty, intergovernmental conflicts and duplication of resources. To address  
these concerns, Parliament provided in CEAA 2012 for a process of substitution and equivalency.  
Substitution allowed the federal government to delegate the environmental assessment to a  
province and base its decision on the findings of that provincial review. And equivalency allowed  
the federal government to treat the provincial assessment as “equivalent” to the federal process for  
purposes of determining whether the proposed intra-provincial activity would likely cause a  
significant adverse impact on matters within federal jurisdiction.  
[95] Second, as with the 2010 amendments to CEAA 1992, CEAA 2012 was designed to step  
past the need for environmental assessment of every proposed project in Canada over which the  
federal government had decision-making jurisdiction. CEAA 2012 substantially reduced the  
number of federal environmental assessments from those under CEAA 1992 by providing that only  
those projects designated by regulation or by the Minister of Environment were subject to federal  
environmental assessment: CEAA 2012, ss 2, 14, 84(a). It accordingly moved to a “project-based”  
regime from the prior “decision-based” regime under which assessments had been triggered by  
various kinds of federal decision-making.53 This explains why the numbers of projects assessed  
federally dropped dramatically from the number “reviewed” under CEAA 1992. Most projects  
under CEAA 1992 had proceeded by way of screening without a full comprehensive review. The  
CEAA 2012 reforms eliminated screenings. Further, projects designated by regulation under CEAA  
2012 did not lead to a federal environmental assessment where the federal government agreed that  
a project could be assessed provincially under the substitution and equivalency process.  
[96] Third, CEAA 2012 reduced the levels of assessment from four under CEAA 1992  
(screenings, comprehensive studies, mediation and panel reviews) to two (assessment by the  
“responsible authority” or a panel review). CEAA 2012 did not retain the “scoping to trigger”  
provisions from Bill C-9. Scoping had been a significant issue under CEAA 1992 because it  
affected whether a project would fall under the “comprehensive study” track or the “screening”  
track. But CEAA 2012 eliminated this distinction. Under CEAA 2012, “designated projects” listed  
52  
For an excellent summary of the differences between CEAA 1992 and CEAA 2012, see Brenda Heelan Powell,  
“Environmental Assessment & the Canadian Constitution: Substitution and Equivalency” (28 November 2014), online  
(pdf): Environmental Law Centre <https://elc.ab.ca/media/94543/EAConstitutionBriefFinal.pdf>.  
53  
Rod Northey, Guide to the Canadian Environmental Assessment Act, 2018 Edition (Toronto: LexisNexis Canada,  
2017) at 12 [Northey].  
Page: 30  
in the Regulations Designating Physical Activities, SOR/2012-147 [Regulations Designating  
Physical Activities] largely mirrored those projects which had previously fallen under the CEAA  
1992 Comprehensive Study List Regulations. Since those projects were subject to a comprehensive  
review under CEAA 2012 regardless, that ended the advantage of “scoping to trigger”.  
[97] Fourth, the scope and content of the environmental assessment of a designated project  
under CEAA 2012 was narrower than under CEAA 1992. The definition of “environmental effects”  
in CEAA 2012 was limited to effects on fish and fish habitat, aquatic species at risk, migratory  
birds, federal lands, extra-provincial effects and Aboriginal peoples.  
[98] Fifth, to minimize delay, CEAA 2012 prescribed legislated time limits for completion of  
federal environmental assessments.  
[99] Sixth, CEAA 2012 restricted public participation to “interested parties” only.54 CEAA 1992  
had required that a review panel hold hearings in a manner that offered “the public an opportunity  
to participate in the assessment”: s 34(b). CEAA 2012 required that a review panel hold hearings  
in a manner that offered “any interested party an opportunity to participate in the environmental  
assessment”: s 43(1)(c). The term “interested party” was defined in turn as a person who is  
“directly affected by the carrying out of the designated project” or “has relevant information or  
expertise”. This thereby reduced the extent of involvement by the general public in the assessment  
process: s 2(2).  
B.  
Overview of the Act and Regulations  
[100] The environmental impact assessment process federally has morphed from the procedural  
planning tool under the Guidelines Order upheld in Oldman River into a substantive regulatory  
regime under the IAA.  
1.  
Scope and Purposes of the Act  
[101] The Act applies to and compels (subject to a screening decision that no assessment is  
required) a comprehensive assessment and review of any activity anywhere in Canada designated  
in the Regulations (sometimes referred to as the “project list”) or by Ministerial order: Act, s 2.55  
The Governor in Council has broad discretion to decide which activities fall under the Regulations:  
Act, s 109(b). The Minister may also designate a physical activity not already prescribed by the  
Regulations if the Minister believes that the physical activity may cause adverse federal effects or  
if public concerns related to the effects warrant the designation: Act, s 9.  
54  
The 2010 amendments to CEAA 1992 under Bill C-9 had also limited public participation in the comprehensive  
study process.  
55  
The Governor in Council is authorized to make regulations “for the purpose of the definition designated project in  
section 2, designating a physical activity or class of physical activities and specifying which physical activity or class  
of physical activities may be designated by the Minister under paragraph 112(1)(a.2)”: Act, s 109(b).  
Page: 31  
[102] The Act is designed to assess proposed designated projects in their entirety rather than  
allowing for “scoping to trigger”. Unlike CEAA 2012, it has been expanded to assess the  
socioeconomic effects of proposed projects in addition to their biophysical effects.56  
[103] The breadth of the impact assessment mandated is illustrated not only by the scope of  
purported federal effects but also by at least 20 different factors that must be considered. These  
range from changes to environmental, health, social, or economic conditions, to “the extent to  
which the designated project contributes to sustainability”, to “the extent to which the effects of  
the designated project hinder or contribute to the Government of Canada’s ability to meet its  
environmental obligations and its commitments in respect of climate change”, to “the intersection  
of sex and gender with other identity factors” to “any other matter relevant to the impact  
assessment” that the Impact Assessment Agency of Canada (Agency) “requires to be taken into  
account”: Act, s 22(1).  
[104] The stated purposes of the Act include fostering sustainability, protecting components of  
the environment within federal jurisdiction, assessing the positive and adverse effects of a  
designated project, encouraging innovation, promoting cooperation with other jurisdictions,  
respecting the rights of Indigenous peoples and providing opportunity for public participation: Act,  
s 6(1).  
2.  
[105] These include the following:  
effects means, unless the context requires otherwise, changes to the  
Relevant Definitions Under the Act Relating to Effects  
environment or to health, social or economic conditions and the  
positive and negative consequences of these changes.  
effects within federal jurisdiction means, with respect to a physical  
activity or a designated project,  
(a)  
a change to the following components of the environment  
that are within the legislative authority of Parliament:  
i) fish and fish habitat, as defined in subsection 2(1)  
of the Fisheries Act,  
(ii) aquatic species, as defined in subsection 2(1) of  
the Species at Risk Act,  
56  
Rod Northey, Liane Langstaff & Anna Côté, A Guide to Canada’s Impact Assessment Act, 2020 Edition (Toronto:  
LexisNexis Canada, 2020) at 8 [Northey 2020].  
Page: 32  
(iii) migratory birds, as defined in subsection 2(1) of  
the Migratory Birds Convention Act, 1994, and  
(iv) any other component of the environment that is  
set out in Schedule 3;  
(b)  
(c)  
a change to the environment that would occur  
(i) on federal lands,  
(ii) in a province other than the one where the  
physical activity or the designated project is being  
carried out, or  
(iii) outside Canada;  
with respect to the Indigenous peoples of Canada, an impact  
occurring in Canada and resulting from any change to the  
environment on  
(i) physical and cultural heritage,  
(ii) the current use of lands and resources for  
traditional purposes, or  
(iii) any structure, site or thing that is of historical,  
archaeological, paleontological or architectural  
significance;  
(d)  
(e)  
any change occurring in Canada to the health, social or  
economic conditions of the Indigenous peoples of Canada;  
and  
any change to a health, social or economic matter that is  
within the legislative authority of Parliament that is set out  
in Schedule 3.57  
direct or incidental effects means effects that are directly linked or  
necessarily incidental to a federal authority’s exercise of a power or  
performance of a duty or function that would permit the carrying  
out, in whole or in part, of a physical activity or designated project,  
or to a federal authority’s provision of financial assistance to a  
person for the purpose of enabling that activity or project to be  
carried out, in whole or in part.  
57  
Schedule 3 of the Act lists “Components of the Environment” and “Health, Social, or Economic Matters.” Under  
s 7(2), the Governor in Council may, by order, add or remove a component or matter from Schedule 3. No components  
under s 7(1)(a)(iv) or matters under s 7(1)(e) are presently listed.  
Page: 33  
3.  
Exclusivity Principle Primary and Limited Jurisdiction  
[106] The types of activities in the project list relate to a variety of sectors. They include ones  
within the exclusive jurisdiction of either the federal or provincial governments. We recognize the  
limitations inherent in identifying an activity as being within the exclusive jurisdiction of one  
government level.58 As noted in Oldman River, the other government level may also have  
jurisdiction over some aspects of that activity. In particular, intra-provincial designated projects  
otherwise subject to exclusive provincial jurisdiction may have aspects subject to federal  
jurisdiction. For example, a project may require a permit under the Fisheries Act, RSC 1985, c F-  
14 [Fisheries Act].  
[107] Nevertheless, identifying which government level has the exclusive jurisdiction for the  
subject activity is not a trap but rather a necessary part of a division of powers analysis. The  
reference to “exclusive” jurisdiction is, after all, the written text of the Constitution itself. That text  
is the foundational basis for constitutional interpretation. 59 The exclusivity principle means  
something in constitutional law.60 It helps the court identify, and focus on, which government  
level has the “primary” jurisdiction for the subject activity as a whole and which has a “limited”  
jurisdiction vis à vis some aspects only of that activity or none at all.61 That necessarily includes  
zeroing in on the limitations inherent in the scope of the head of power of each government level.62  
[108] Put in the context of this case, provincial Legislatures have the exclusive jurisdiction over  
intra-provincial designated projects under several provincial heads of power. In other words, they  
have the primary jurisdiction over intra-provincial designated projects. Parliament’s jurisdiction is  
58  
As La Forest J explained in Oldman River at 68: “What is not particularly helpful in sorting out the respective  
levels of constitutional authority over a work such as the Oldman River dam, however, is the characterization of it as  
a ‘provincial project’ or an undertaking ‘primarily subject to provincial regulation’ as the appellant Alberta sought to  
do.”  
59  
“[C]onstitutional interpretation ... must first and foremost have reference to, and be constrained by, that text”:  
Quebec (Attorney General) v 9147-0732 Québec inc., 2020 SCC 32 at para 9. “The primacy of our written  
Constitution remains one of the fundamental tenets of our constitutional framework”: Quebec (Attorney General) v  
Canada (Attorney General), 2015 SCC 14 at para 18, [2015] 1 SCR 693.  
60  
For an excellent history of the various pre-Confederation resolutions leading up to the final draft of the British  
North America Act, 1867 (renamed the Constitution Act, 1867 on patriation in 1982) and the evolution and significance  
of the exclusivity principle, see Asher Honickman, “Watertight Compartments: Getting Back to the Constitutional  
Division of Powers” (2017) 55:1 Alta L Rev 225 at 227-231 [Honickman].  
61  
One author has characterized the two as “comprehensive” jurisdiction as opposed to “restricted” jurisdiction: Steven  
A. Kennett, “Federal Environmental Jurisdiction After Oldman” (1993) 38 McGill LJ 180 at 187-191 [Kennett].  
62  
As La Forest J explained in Oldman River at 67, “the exercise of legislative power, as it affects concerns relating  
to the environment, must, as with other concerns, be linked to the appropriate head of power, and since the nature of  
the various heads of power under the Constitution Act, 1867 differ, the extent to which environmental concerns may  
be taken into account in the exercise of a power may vary from one power to another.”  
Page: 34  
limited to the consequences of those projects on federal heads of power. And so too is Parliament’s  
regulatory authority over those projects.63  
4.  
Activities Included in the IAA  
[109] The following activities designated in the Regulations Schedule64 are matters primarily  
within exclusive federal jurisdiction:  
certain types of projects or activities located within a National Park or federally  
protected wildlife area, bird sanctuary or protected marine area (ss 1-11);  
specified matters involving the military or defence (ss 12-17);  
uranium mines or mills (ss 20-23);  
nuclear facilities (ss 26-29);  
offshore oil or gas facilities (ss 34-36);  
new international electrical transmission lines or inter-provincial power lines  
designated under the Canadian Energy Regulator Act (s 39);  
offshore oil and gas pipelines (s 40);  
interprovincial oil and gas pipelines (s 41);  
offshore wind power generating facilities (ss 44-45);  
aerodromes or runways (ss 46-47);  
international or interprovincial bridges or tunnels (s 48);  
canals or causeways in navigable waters (ss 49-50); and  
marine terminals (ss 52-53).  
63  
The Supreme Court recognized this distinction in Moses SCC at para 36: “There is no doubt that a vanadium mining  
project, considered in isolation, falls within provincial jurisdiction under s. 92A of the Constitution Act, 1867 over  
natural resources. There is also no doubt that ordinarily a mining project anywhere in Canada that puts at risk fish  
habitat could not proceed without a permit from the federal Fisheries Minister, which he or she could not issue except  
after compliance with the CEAA. The mining of non-renewable mineral resources aspect falls within provincial  
jurisdiction, but the fisheries aspect is federal” (emphasis added).  
64  
The Regulations include one Schedule.  
Page: 35  
[110] Importantly, however, designated projects also include intra-provincial activities otherwise  
within provincial jurisdiction such as mining, renewable energy, transportation and oil and gas.  
The following activities designated in the Regulations Schedule are matters primarily within  
exclusive provincial jurisdiction:  
certain activities with respect to new or existing coal, diamond, metal (other than  
uranium), rare earth element mines or stone quarry sand or gravel pits exceeding a  
specified daily production capacity (ss 18-19);  
certain activities with respect to existing or new oil sands mines with a bitumen  
production capacity of 10,000 m³/day or more (ss 24-25);  
the construction, operation, decommissioning, abandonment or expansion of a fossil  
fuel-fired power generating facility with a production capacity of 200 MW or more (ss  
30-31);  
the construction, operation, decommissioning, abandonment or expansion of an in situ  
oil sand extraction facility with a bitumen production capacity of 2,000 m³/day or more  
in a province that does not have provincial legislation limiting the amount of  
greenhouse gas emissions produced by oil sands sites in the province or where such  
limits have been reached (ss 32-33);  
the construction, operation, decommissioning and abandonment of new, or expansion  
of existing, oil refineries, facilities to liquify petroleum products from coal or natural  
gas, sour gas processing facilities, petroleum storage facilities, natural gas liquids  
storage facilities above specified production or storage capacities (ss 37-38);  
the construction, operation, decommissioning and abandonment of a new, and  
expansion of an existing, hydroelectric generating facility over a certain production  
capacity (ss 42-43);  
the construction, operation, decommissioning and abandonment of a new all-season  
public highway that requires a total of 75 km or more of new right of way (s 51);  
the construction, operation, decommissioning and abandonment of a new facility, or  
the expansion of an existing facility, for the treatment of hazardous waste that is within  
500 m from a natural water body (ss 56-57); and  
the construction, operation, decommissioning and abandonment of a new, or expansion  
of an existing, dam or dyke or water diversion structure that exceed certain limits (ss  
58-61).  
Page: 36  
5.  
Section 7 and Prohibitions  
[111] Section 7 of the Act prohibits the proponent of a designated project, and that would include  
all intra-provincial designated projects, from doing “any act or thing in connection with the  
carrying out of the designated project, in whole or in part, if that act or thing may cause” any of  
the listed effects. The listed effects track almost word for word the definition of “effects within  
federal jurisdiction”, that is the purported federal effects. Under s 7(3), a proponent of a designated  
project cannot do anything that may cause any of the effects listed in s 7(1) unless and until: (a)  
the Agency decides under s 16(1) that the project does not require an impact assessment; (b) the  
proponent complies with the conditions in the decision statement issued for the project following  
an impact assessment; or (c) the Agency permits the proponent to do something in aid of the impact  
assessment.  
[112] In particular, s 7 provides as follows:  
7 (1) Subject to subsection (3), the proponent of a designated project  
must not do any act or thing in connection with the carrying out of  
the designated project, in whole or in part, if that act or thing may  
cause any of the following effects:  
(a)  
a change to the following components of the environment  
that are within the legislative authority of Parliament:  
(i) fish and fish habitat, as defined in subsection 2(1)  
of the Fisheries Act,  
(ii) aquatic species, as defined in subsection 2(1) of  
the Species at Risk Act,  
(iii) migratory birds, as defined in subsection 2(1) of  
the Migratory Birds Convention Act, 1994, and  
(iv) any other component of the environment that is  
set out in Schedule 3;  
(b)  
(c)  
a change to the environment that would occur  
(i) on federal lands,  
(ii) in a province other than the one in which the act  
or thing is done, or  
(iii) outside Canada;  
with respect to the Indigenous peoples of Canada, an impact  
occurring in Canada and resulting from any change to the  
environment on  
Page: 37  
(i) physical and cultural heritage,  
(ii) the current use of lands and resources for  
traditional purposes, or  
(iii) any structure, site or thing that is of historical,  
archaeological, paleontological or architectural  
significance;  
(d)  
(e)  
any change occurring in Canada to the health, social or  
economic conditions of the Indigenous peoples of Canada;  
or  
any change to a health, social or economic matter within the  
legislative authority of Parliament that is set out in  
Schedule 3.  
(2) The Governor in Council may, by order, amend Schedule 3 to  
add or remove a component of the environment or a health, social  
or economic matter.  
(3) The proponent of a designated project may do an act or thing in  
connection with the carrying out of the designated project, in whole  
or in part, that may cause any of the effects described in subsection  
(1) if  
(a)  
the Agency makes a decision under subsection 16(1) that no  
impact assessment of the designated project is required and  
posts that decision on the Internet site;  
(b)  
the proponent complies with the conditions included in the  
decision statement that is issued to the proponent under  
section 65 with respect to that designated project and is not  
expired or revoked; or  
(c)  
the Agency permits the proponent to do that act or thing,  
subject to any conditions that it establishes, for the purpose  
of providing to the Agency the information or details that it  
requires in order to prepare for a possible impact assessment  
of that designated project or for the purpose of providing to  
the Agency or a review panel the information or studies that  
it considers necessary for it to conduct the impact assessment  
of that designated project.  
Page: 38  
(4) Despite paragraph (1)(d), the proponent of a designated project  
may do an act or thing in connection with the carrying out of the  
designated project, in whole or in part, that may cause a change  
described in that paragraph in relation to an Indigenous group,  
community or people that holds rights recognized and affirmed by  
section 35 of the Constitution Act, 1982 if the change is not adverse  
and the council, government or other entity that is authorized to act  
on behalf of the Indigenous group, community or people and the  
proponent have agreed that the act or thing may be done.  
[113] Contravening s 7 is an offence under the Act, punishable by substantial fines under s 144.  
6. Section 8 and Prohibitions  
[114] Under the Act, Parliament has also regulated what it has defined as “direct or incidental  
effects” and what it characterizes as “adverse direct or incidental effects”. Direct or incidental  
effects include effects that are directly linked or necessarily incidental to a federal authority’s grant  
of a federal permit or approval that a designated project requires under other valid federal  
legislation to proceed: Act, s 2. Simply, this definition captures those designated projects requiring  
a federal permit to proceed. Various sections of the Act refer to “adverse direct or incidental  
effects” and “adverse effects within federal jurisdiction” together.65  
[115] Section 8 of the Act prohibits a federal authority from issuing a federal permit for a  
designated project unless a positive public interest determination has been made by the federal  
executive or unless no impact assessment is required:  
A federal authority must not exercise any power or perform any duty  
or function conferred on it under any Act of Parliament other than  
this Act that could permit a designated project to be carried out in  
whole or in part and must not provide financial assistance to any  
person for the purpose of enabling that designated project to be  
carried out, in whole or in part, unless  
(a) the Agency makes a decision under subsection  
16(1) that no impact assessment of the designated  
project is required and posts that decision on the  
Internet site; or  
65  
Examples: “the effects within federal jurisdiction or the direct or incidental effects” or “the adverse effects within  
federal jurisdiction and the adverse direct or incidental effects” or “the adverse effects within federal jurisdiction or  
the adverse direct or incidental effects” or “those that are adverse effects within federal jurisdiction and those that are  
direct or incidental effects” or “which ... are adverse effects within federal jurisdiction and which are direct or  
incidental effects”: Act, ss 6(d), 9(1), 16(2)(b), 28(3), 33(2), 36(2)(a), 51(1)(d)(ii), 59(2), 60(1)(a), 61(1), 62, 63(b)  
and 106(2)(c)).  
Page: 39  
(b) the decision statement with respect to the  
designated project that is issued to the proponent of  
the designated project under section 65 sets out that  
the effects that are indicated in the report with respect  
to the impact assessment of that project are in the  
public interest.  
7.  
Phases of Impact Assessment Process  
[116] There are three main phases to the impact assessment process.  
[117] First, there is the planning phase: Act, ss 10-18. A proponent of a designated project  
provides the Agency with a description of the project that must include information prescribed by  
regulation. An initial project description is provided based on Schedule 1 of the Information and  
Management of Time Limits Regulations, SOR/2019-283 [Information Regulations]: Act, s 10(1).  
The Agency then consults with a number of parties, on the basis of which it provides the proponent  
with a summary of issues: Act, s 14(1). The proponent must then provide the Agency with a notice  
setting out a response to this summary of issues and a detailed project description based on  
Schedule 2 of the Information Regulations: Act, s 15(1). If the Agency decides a designated project  
requires an impact assessment, it issues a notice of commencement outlining the information and  
studies needed to conduct the assessment and documents set out in s 5 of the Information  
Regulations: Act, s 16; s 18(1).  
[118] Second, there is the impact assessment phase. This begins with the proponent collecting  
the requested information and completing the required studies which it provides to the Agency in  
a document called an “impact statement”: Act, s 19(1).66 An assessment of the designated project  
is then carried out, either by the Agency or, in cases where the Minister is of the view it is in the  
public interest, a review panel. The potential effects of a designated project are assessed, after  
which a report (Report) is prepared by the Agency or review panel detailing the effects of the  
project: Act, ss 25, 51(1)(d)(i)-(ii). The Report must set out the likely effects of the designated  
project, indicate the adverse federal effects and specify the extent to which those effects are  
significant.67  
[119] Notably, the Report must take into account the factors set out in s 22(1) (sometimes referred  
to as the “s 22 mandatory factors”), namely:  
66  
Government of Canada, Impact Assessment Agency of Canada, “Phase 2: Impact Statement”, online:  
<https://www.canada.ca/en/impact-assessment-agency/services/policy-guidance/impact-assessment-process-overvie  
w/phase2.html>.  
67  
The Report must also explain how any provided Indigenous knowledge was considered, summarize any public  
comments and recommend mitigation measures and follow-up programs: Act, ss 28(3)-(3.2), 51(1)(d)(ii.1)-(iv).  
Page: 40  
(a) the changes to the environment or to health, social or economic  
conditions and the positive and negative consequences of these  
changes that are likely to be caused by the carrying out of the  
designated project, including  
(i) the effects of malfunctions or accidents that may occur in  
connection with the designated project,  
(ii) any cumulative effects that are likely to result from the  
designated project in combination with other physical  
activities that have been or will be carried out, and  
(iii) the result of any interaction between those effects;  
(b) mitigation measures that are technically and economically  
feasible and that would mitigate any adverse effects of the  
designated project;  
(c) the impact that the designated project may have on any  
Indigenous group and any adverse impact that the designated project  
may have on the rights of the Indigenous peoples of Canada  
recognized and affirmed by section 35 of the Constitution Act, 1982;  
(d) the purpose of and need for the designated project;  
(e) alternative means of carrying out the designated project that are  
technically and economically feasible, including through the use of  
best available technologies, and the effects of those means;  
(f) any alternatives to the designated project that are technically and  
economically feasible and are directly related to the designated  
project;  
(g) Indigenous knowledge provided with respect to the designated  
project;  
(h) the extent to which the designated project contributes to  
sustainability;  
(i) the extent to which the effects of the designated project hinder or  
contribute to the Government of Canada’s ability to meet its  
environmental obligations and its commitments in respect of climate  
change;