What’s Next for Canada’s Impact Assessment Regime, and what it means for Indigenous Communities (Part 2 of 2)

It has been four weeks since the Supreme Court of Canada (“SCC”) released its decision that the federal Impact Assessment Act, S.C. 2019, c. 28, s. 1 (the “Act” or “IAA”) is beyond the jurisdiction of the federal government, and thus unconstitutional in part. While the decision made it clear that the Act needs to be changed, what form that change will take is less clear.

For many Indigenous communities, the IAA provides an important layer of protection against the impacts of resource development projects on their rights, and the resources upon which they depend. This is particularly true for those jurisdictions with weaker provincial environmental assessment legislation.

In this post we explore what comes next for this flagship piece of federal environmental legislation, and what the SCC’s decision means for Indigenous communities.

What happens now that the Act has been found to be unconstitutional?

The SCC’s decision was rendered in response to a reference question. This means that there is no order or declaration striking out the legislation. The IAA, technically, remains in effect until either: 1) the IAA itself is specifically challenged and struck down by a court; or 2) parliament amends the legislation.

It is now up to the federal government to decide how it is going to amend the legislation.

The federal government has not yet specified what it is going to do to address the Court’s ruling. One option would be to replace the legislation altogether; however, given that the next election will occur in two years (if not sooner) there is not much time for a full overhaul.

As noted, the SCC affirmed that the portion of the Act that applies to projects carried out or financed by federal authorities on federal lands, or outside Canada (ss. 81-91) are properly within Canada’s authority. The Court also specified that the “designation mechanism” (which provides that certain types of projects that meet specific thresholds are presumptively required to undergo an assessment), was not problematic in and of itself. Thus, the federal government may try to maintain the existing structure of the IAA, while making more targeted amendments at those issues the SCC identified as being particularly problematic: namely, the sections on screening (s. 16), prohibition (s. 7) and decision making (ss. 60-64) and their failure to be driven by a consideration of impacts of areas of federal jurisdiction.

What does the decision mean for ongoing assessments?

There are dozens of impact assessments currently in progress under the IAA. The SCC’s decision will have an impact on whether these projects are still required to undergo some type of federal review, and if they are, what that federal review will look like. The SCC’s decision may also have repercussions for regional impact assessments, which were a newly established tool under the IAA meant to assess the cumulative impacts of existing and anticipated development in a region.

In the short term, Canada has announced “interim direction” for those projects that are currently undergoing an impact assessment or being considered for one. Under this interim direction:

  • present impact assessments will proceed, and the IAA will be issuing “opinions” on how those projects impact areas of federal jurisdiction;
  • no new discretionary designations will be made; and
  • the three regional assessments underway, the Ring of Fire in Ontario and offshore wind in Nova Scotia and Newfoundland and Labrador will continue.

In the long term, what happens to ongoing impact assessments will depend on a number of factors including:

  • how the federal government addresses the SCC’s decision through new or amended legislation;
  • the basis for which the project is required to undergo an assessment in the first place (which will presumably be identified through the issuance of the above “opinions”); and
  • what type of transitional provisions the federal government enacts to deal with those projects that are mid-assessment.

In general, however, where a project will clearly have more than minimal impacts on fish, migratory birds, or Indigenous peoples, we would expect that those impacts will remain subject to some type of federal review; however, the scope of that review remains uncertain, and will likely be more limited than it is currently.

What does the Decision mean for Canada’s jurisdiction over Indigenous People Generally?

Under section 91(24) of the Constitution Act, 1867, Canada has jurisdiction over “Indians and Lands reserved for Indians”. Canada’s position was that section 7(1)(c) and (d) of the IAA, which empowered the federal government to consider, manage, and prohibit impacts on Indigenous peoples were properly grounded in section 91(24). The SCC disagreed.

The SCC found that these provisions allow the federal government to indefinitely prohibit any act or thing that may have “any impact” on or cause “any change” to health, social and economic conditions of Indigenous peoples and Indigenous cultural heritage. The Court found that the breadth of this prohibition overshoots parliament’s legislative authority under s. 91(24). While the Court recognized that the unique position of Indigenous peoples means that designated projects may affect them differently than other residents of a province, and that the federal government is “vested with primary constitutional responsibility for securing the welfare” of Indigenous peoples, it found that s. 91(24) does not give parliament authority over any impact or any change, in respect of Indigenous peoples.

The SCC seems to be suggesting here that to properly come within federal jurisdiction, the impacts on Indigenous peoples must be of a certain magnitude or surpass a certain threshold. However, the SCC provides little guidance on what that threshold might be. This unfortunately only creates more uncertainty with respect to the scope of the federal government’s jurisdiction under s. 91(24) – a concept which has received little consideration in the case law to date.

What does it mean for Indigenous Decision Making under the Legislation?

The IAA contains provisions that permit the federal government to enter into agreements with Indigenous governing bodies allowing for those Indigenous governing bodies to undertake portions of an impact assessment.

The SCC’s decision does not impugn the sections of the IAA that permit the federal government to enter into agreements with Indigenous governing bodies. These sections are ancillary to the parts of the IAA that the Court declared unconstitutional. Thus, the Federal Government could likely maintain these sections in the next  iteration of Canada’s impact assessment legislation. However, Canada was in the process of implementing these provisions by developing an Indigenous Impact Assessment Co-Administration Agreement Regulations, and it is possible that work to implement these sections, including engagement on those regulations, is paused while Canada considers where to go from here.

What does the Decision Mean for Canada’s UNDRIP Action Plan?

In June of this year, Canada released its United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan, which sets out the actions that Canada will take to align its laws with UNDRIP.  Measure #51 in the Action Plan (“APM51”) aims to improve the impact assessment process by implementing the Act in a way that aligns with the objectives and spirit of UNDRIP. APM51 committed Canada to carrying out impact assessments in a manner emphasizing the need for free, prior, and informed consent; maximizing Indigenous collaboration and partnership; and ensuring early, meaningful, and consistent engagement and participation among other factors.

While APM51 addresses the Act’s provisions for agreements with Indigenous Governing Bodies, APM51 does not engage any of the impugned provisions. Therefore, at this point, it is unclear how, if at all, Canada will address or adjust APM51 in light of the SCC decision. Given APM51’s broad scope, it is likely that it can continue to apply to whatever impact assessment scheme is ultimately adopted by the federal government. However, to the extent that the next iteration of federal impact assessment legislation narrows the federal assessment power, we can expect that any action plan measures will be equally narrowed.