Reference Re Impact Assessment Act: Supreme Court Majority Rules That The Presumption Of Constitutionality Cannot Save The Act From Being Unconstitutional In Part

Introduction

On appeal from a decision of the Court of Appeal of Alberta in the context of a reference, the Supreme Court of Canada (the "Court") recently concluded that the federal impact assessment scheme consisting of the Impact Assessment Act¹ (the "IAA") and the Physical Activities Regulations² is unconstitutional in part.³

A majority of the Court, per Chief Justice Wagner, reaffirmed the Court's vital role in upholding the division of powers framework laid out in the Constitution, while recognizing environmental protection as a fundamental value of Canadian society.⁴ It emphasized that cooperative federalism means that both levels of government can show leadership in protecting the environment while respecting the division of powers.⁵