Alberta Court of Appeal Rules Impact Assessment Act Unconstitutional

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The Alberta Court of Appeal on Monday declared the federal government’s Impact Assessment Act (IAA) unconstitutional for usurping provincial authority under Canadian federalism. The law will, however, remain in effect until the matter is resolved on appeal to the Supreme Court of Canada, which the federal government believes will uphold the law.

The federal government passed the IAA in 2019. It revised the approval process for large infrastructure projects to consider their social and environmental impact, including climate impact. In a 209-page decision, four of the court’s five justices viewed the federal government’s justification of federal authority under the law overbroad, thereby “undermin[ing] the division of powers” established by Canada’s constitution. One justice dissented, regarding the law as a valid exercise of federal power.

The Alberta Court of Appeal’s reasoning echoes the reasoning it gave in its 2020 ruling on the Greenhouse Gas Pollution Pricing Act (GGPPA). The Court found that law unconstitutional as an illegal exercise of federal power as well. It was the only court to do so, with the Supreme Court of Canada and the Ontario and Saskatchewan Courts of Appeal all upholding the law in their respective judgments. 

In its ruling on the GGPPA, as in this one, the Alberta Court of Appeal acknowledged the seriousness of climate change - as well as its concern about the law’s potential negative impact on Western Canada’s oil industry. 

However, rather than ruling in accordance with the precedent established by the Supreme Court of Canada in its decision on the federal carbon pricing law, Alberta’s Court of Appeal in this decision seems to be effectively challenging it by doubling on a stricter view of Canadian federalism - as compared with the Supreme Court of Canada’s inclination towards a “flexible federalism” that considers with nuance the cross-border challenges, like climate change, facing Canada in the 21st century.