Prime Minister Justin Trudeau
The Mining Association of Canada (MAC) has called on Prime Minister Justin Trudeau’s government to expeditiously respond to the Supreme Court’s opinion that core aspects of the federal Impact Assessment Act (IAA) are unconstitutional, stating that prolonged uncertainty will slow down mining and infrastructure development.
The court on Friday struck down core parts of the four-year-old legislation that assesses the impacts of major projects and projects carried out on federal lands. By way of a 5-2 majority, the Supreme Court opined that the portion of the IAA addressing the assessment of “designated projects” is outside the federal Parliament’s competence and thus unconstitutional.
“Legislative change introduces regulatory uncertainty. The transition to another legislative framework will have to be well-planned to mitigate the potential impact of uncertainty on Canada’s investment climate,” the MAC said in a statement.
The organisation stated that it would develop constructive advice on the ruling once it had completed an analysis.
The mining sector is heavily impacted by federal assessment legislation. About 20 mining projects are currently undergoing federal assessment, and additional projects are about to enter the process.
The IAA, formerly Bill C-69, came into force in August 2019, repealing and replacing the Canadian Environmental Assessment Act, 2012.
Trudeau’s government argues that the tougher IAA requirements make projects more likely to survive court challenges, thus increasing certainty for companies and investors.
Environment and Climate Change Minister Steven Guilbeault and Justice Minister Arif Virani said in a statement that they accepted the court’s opinion and that they would collaborate with the provinces and Indigenous groups to ensure an impact assessment process that worked for all.
"Our immediate priority will be to provide guidance to our many stakeholders and Indigenous partners to ensure as much predictability as possible for projects affected by this opinion. We understand the importance of timeliness in determining a path forward,” they said.
The Alberta government, which opposes the IAA, is pleased with the Supreme Court ruling.
Premier Danielle Smith said the legislation was responsible for the loss of “tens of billions in investment, as well as thousands of jobs across many provinces and economic sectors”.
“The decision is also a massive win for the protection of sovereign provincial rights under the Constitution. The federal government, through passage of Bill C-69, and continuing now with their proposed electricity regulations and oil and gas emissions cap, is blatantly attempting to erode and emasculate the rights and authorities of provinces as an equal order of government under the Canadian Constitution.
“Today’s court decision significantly strengthens our province’s legal position as we work to protect Albertans from federal intrusion into various areas of sovereign provincial jurisdiction. Alberta will continue to partner with other willing provinces and interveners in pushing back against these unconstitutional federal efforts using all legal means available to us,” she said.
In September 2019, the Alberta government asked the Alberta Court of Appeal to provide an advisory opinion on whether the IAA steps outside federal legislative authority. In May 2022, the Alberta Court of Appeal opined that the IAA is unconstitutional in its entirety. The issue was referred to the Supreme Court of Canada.