Impact Assessment Act Found To Be Mostly Unconstitutional

In the highly anticipated Reference re Impact Assessment Act, 2023 SCC 23 the majority (5-2) of the Supreme Court of Canada (Justices Karakatsanis and Jamal dissenting) found that the Impact Assessment Act(IAA) and the Physical Activities Regulations ("Regulations") made by the Governor in Council under theIAA was unconstitutional in part.

The majority found that the IAA created a scheme that could subject projects to a federal impact assessment based on factors that were not sufficiently tied to areas of federal jurisdiction. Rather, many of the activities that the scheme applied to were primarily regulated through provincial powers over local works and undertakings or natural resources. By failing to draw a distinction between the impacts of activities that fall under federal jurisdiction and that those primarily regulated by the provinces, Parliament had overstepped its constitutional limits.