Supreme Court Of Canada Holds Designated Projects Scheme Under The Impact Assessment Act Is Unconstitutional

On October 13, 2023, the Supreme Court of Canada (SCC) released its advisory decision regarding the constitutionality of the federal government's environmental assessment (EA) regime in Reference re Impact Assessment Act. A majority of the SCC found that much of the federal government'sImpact Assessment Act (the "Act") and the Physical Activities Regulations ( the "Regulations") under the Act are unconstitutional.

In summary, the SCC found that the sections of the Act that deal with projects carried out or financed by federal authorities on federal lands or outside Canada (the "federal undertakings" scheme in sections 81 to 91) are constitutional, whereas the remainder of the Act, which deals with "designated projects" and requires that such projects be assessed with a view to mitigating or preventing their environmental impacts, is unconstitutional.