The federal government has just formally launched its review and reform of the federal EA process (http://tinyurl.com/hbw2oyc). This is a good time to reflect on the extent and limits of federal jurisdiction over EA, a critical issue for the design of the new federal EA process. The issue has been considered twice by the Supreme Court of Canada, once back in 1992 in the Oldman River Dam case, and again in 2010 in the Red Chris Mine case. Most recently, in 2016, the Federal Court of Appeal in Syncrude considered federal jurisdiction over environmental protection in a manner that sheds some new light on federal jurisdiction over EA. In this post, I will start with a brief overview of the most relevant Constitutional provisions on federal jurisdiction, and then explore what these three cases tell us about the extent and limits of federal jurisdiction over EA.

The jurisdictional landscape as it applies to EA is complex, in large part because the environment touches on many areas of federal and provincial jurisdiction. An inherent part the complexity for EA is the fact that the implications of proposed activities are much less understood at the start of an assessment than at its conclusion. The jurisdictional complexity is exacerbated as EA shifts from a process focused on a technical assessment of biophysical effects to the consideration of a broader range of social and economic impacts, benefits, risks and uncertainties. The complexity is further amplified as EA moves from a focus on individual projects to the consideration of broader policies, plans and programs through the addition of strategic and regional assessments to the EA toolbox.

In light of these layers of complexity, it is perhaps not surprising that federal law-makers and administrators have tended in the past to be reluctant to apply the federal EA process and to broaden its scope to the full extent of its jurisdiction. The effect, unfortunately, has been to seriously hamstring the effectiveness of federal EA as a tool for sound decision-making.

A thorough understanding of the full jurisdiction of each level of government to carry out EA is critical if EA is to realize its potential as a tool for good decision making to facilitate and accelerate the transition to sustainability. As federal EA moves to the consideration of economic, social, and cultural implications of proposed human activities at project, strategic and regional levels, the consideration of the limits of federal jurisdiction must similarly broaden.

Jurisdiction over environmental issues under our Constitution is perhaps best considered through a combination of territorial powers, functional powers and conceptual powers. From a territorial perspective, it is helpful to think of Canada as made up of two types of territory, territory in which significant areas jurisdiction have been assigned by to the provinces, and territory where the federal government is assigned comprehensive jurisdiction. Areas of broad provincial jurisdiction are limited by the territorial boundaries of each province, and generally do not include federal lands within the provinces. Areas of comprehensive federal constitution jurisdiction include all parts of Canada beyond the boundaries of the provinces, including the three northern Territories, and offshore areas beyond the boundaries of the provinces. Federal lands within the territory of the provinces are also subject to comprehensive federal jurisdiction. For EA, this means, as a starting point, that there is broad federal power to carry out comprehensive EAs of activities on federal lands within the provinces, as well as in the three Territories and in the offshore. This power can extend to activities that have significant effects on federally controled territory.

Federal functional and conceptual powers are critical to defining the extent and limit of federal constitutional jurisdiction to carry out EAs of activities in the remaining territory of Canada, i.e. within the boundaries of Canada’s provinces not on federal lands. In these areas, provinces have broad jurisdiction to carry out EA, but the federal level of government still has considerable jurisdiction, which, in many instances, will lead to broad jurisdiction to carry out EAs.

Functional powers, which refer to subject matters that could be affected by activities proposed in the context of EA, establish federal jurisdiction over specific subject matters. Some are focused on biophysical issues, such as fisheries and navigation. Others provide a basis for consideration of a broader range of issues, such as jurisdiction over the needs and rights of aboriginal communities, inter-provincial transportation, and shipping.

Conceptual powers, which can be thought of as tools for the exercise of federal power, add to the list of activities that may warrant a federal assessment. Conceptual powers include powers over federal spending, taxation, trade and commerce, federal works and undertakings, works declared to be for the advantage of multiple provinces, inter-provincial and international aspects of activities, and the residual power over peace, order and good government (POGG). The criminal law power is also considered a conceptual power, as it can be utilized to address societal challenges in a range of subject areas, including environmental protection.

The extent of federal jurisdiction to carry out an EA, the appropriate scope of assessment, and the jurisdiction to make decisions about proposed activities have been the subject of much discussion among academics and policy makers. Given the generally very cautious approach by federal law-makers and administrators, litigation on federal jurisdiction over EA has been relatively rare. There are, however, two cases that considered federal jurisdiction over EA that made it all the way to the SCC. They are the disputes over the Oldman River Dam project and the Red Chris Mine. These two SCC decisions are considered next.

In its 1992 landmark case brought by the Friends of the Oldman River, the SCC considered, for the first time, the extent of federal jurisdiction over EA. It did so in the context of the application of the Environmental Assessment and Review Process (EARP) Guidelines Order to the Oldman River Dam project in Alberta. One of the key issues in the case was whether the federal government had jurisdiction to carry out an environmental assessment of the project before deciding whether to issue federal fisheries and navigation licenses to permit the project to proceed.

The SCC recognizes that there are three key decision points in an EA from a constitutional perspective, the decision whether to require a federal EA, the decision about the scope of the federal EA, and federal project decisions after the completion of the EA. The case offers clarity on the first two, but leaves some uncertainty about the third.

With respect to the decision whether to require a federal EA, the SCC clarifies that federal jurisdiction to carry out the EA can either be in the form of jurisdiction over the activity itself, or over a potential impact of the proposed activity. The court uses an interprovincial railway project as an example of the former, and a project with potential impacts on fisheries and navigation as examples of the latter. In case of the railway project, the federal jurisdiction arises from the federal jurisdiction over the project under section 92(10). In this case, it does not matter what the impact of the project might be. In case of the impact on fisheries and navigation, it does not matter what the project is, what matters is that it has the potential to affect fisheries or navigation.

With respect to the scope of a federal assessment, the SCC clarifies that if there is jurisdiction to carry out an assessment, the assessment can be comprehensive, and can, at least in cases such as railway projects where the jurisdiction is over the project, include impacts, benefits, risks and uncertainties that otherwise fall within the jurisdiction of the provinces. The court did not resolve whether the scope of an assessment is more limited where the federal jurisdiction is based on specific impacts rather than jurisdiction over the activity itself.

It is clear that the project decision has to be separated from the decision to carry out an EA because the decision to carry out an EA has to be made in the face of uncertainty and information gaps (that are to be filled through the EA), whereas the project decision is made at the conclusion of the information gathering and assessment process. Jurisdictional issues relating to the post assessment project decision are not fully resolved in Oldman. In particular, if there is jurisdiction to make a project decision, can a federal decision maker consider all impacts, benefits, risks and uncertainties in deciding whether and under what conditions to allow the activity to proceed, or are there constitutional limits on what can be considered? Views on the interpretation of the Oldman decision in this regard differ.

Twenty years after the Oldman decision, the SCC had the opportunity to again consider the extent of federal jurisdiction over EA, this time in the context of the application of the Canadian Environmental Assessment Act (1992) to the proposed Red Chris mine in BC. The case centers on the question of the scope of the project to be assessed and related process decisions, but the court also considers jurisdictional issues and related questions about multijurisdictional cooperation. The court rejects narrow scoping as an efficient approach to inter-jurisdictional cooperation in light of CEAA 1992. Instead, it re-enforces the Oldman principle that if there is federal jurisdiction to assess a proposed activity, there is jurisdiction to do a comprehensive assessment of impacts, benefits, risks and uncertainties. The Red Chris decision does not, however, address the key area of uncertainty left in Oldman, whether there are limits at the decision making stage of the process, and if so, what those limits are.

Other cases, while not directly dealing with EA, have continued to shape our understanding of federal jurisdiction over the broad range of issues that are relevant in a modern EA process. Cases such as Zellerbach, Hydro Quebec, and the recent Federal Court of Appeal ruling in Syncrude have demonstrated consistently that the federal government is to be given considerable latitude in its efforts to deal with the many serious environmental challenges we face.

Syncrude in particular, while dealing with regulatory powers under CEPA rather than EA, confirms the important role of the criminal law power for federal jurisdiction over environmental protection, and notably concludes that federal efforts to protect the environment can be integrated with economic and other factors without overstepping the limits of federal jurisdiction over environmental protection under the criminal law power. This would suggest broader powers to make decisions and impose conditions to implement the results of a comprehensive, sustainability based, assessment than assumed in the implementation of the current federal EA regime. The court makes the point that integrated solutions are not colourable attempts to invade provincial jurisdiction, but are essential elements of effective environmental governance.

So where does this leave us with respect to federal jurisdiction to carry out EA? It suggests that we need to consider federal jurisdiction at three key stages, in deciding whether to do an assessment, in deciding the scope of an assessment and in the post assessment decision-making processes. With respect to the decision to carry out a federal assessment, the process would need a trigger that gives careful consideration to the potential of a proposed activity to affect an area of federal jurisdiction. It seems clear that in principle, the federal government has the constitutional authority to carry out an assessment where a proposed activity has a realistic potential to affect an area of federal jurisdiction.

With respect to the scope of the assessment, it seems unlikely in light of cases such as Oldman, Red Chris, and Syncrude, that courts would impose limits on the scope of a federal assessment once it has determined that there is federal jurisdiction to trigger an EA. With respect to post assessment decision-making, there is less certainty about the limits of federal jurisdiction, but it is clear that the results of the assessment need to lay a proper foundation for federal decision-making. If the assessment identifies clear impacts on areas of federal jurisdiction, there would be a solid basis for federal jurisdiction that implements an integrated approach to addressing the impacts identified. In short, the results of the assessment will necessarily shape the decision-making authority of the federal government.

Meinhard Doelle,

Director, Marine & Environmental Law Institute

To download some of my publications on EA, see http://ssrn.com/author=715387.