On November 23, 2023, MELAW and the College of Sustainability hosted the first annual Meinhard Doelle Legacy Lecture, featuring former colleagues and collaborators of Meinhard including myself, Bill Lahey (now President and Vice-Chancellor of the University of King’s College), and Lisa Mitchell (Executive Director and Senior Lawyer, East Coast Environmental Law). Moderated by CoS faculty Steve Mannell who worked closely with Meinhard at CoS, our roundtable discussion was centred around reflections on the past, present and future of environmental law, in light of our individual experiences working collaboratively with Meinhard in diverse contexts. The aim of this event and future legacy lectures is to inspire the next generation of Dalhousie students, whether in law or sustainability, to learn more about the possibilities of environmental law for contributing solutions to local, national and global sustainability challenges facing people and planet. A video link to the lecture can be found here, which begins with a short video clip featuring Meinhard.

One topic that Meinhard and I often discussed was the relationship between international and domestic law. Meinhard was a key thought leader in environmental assessment law, and also an expert in climate law. With this in mind, and as the COP28 negotiations come to an end, I am sharing some thoughts on a topic that would have been high on our list of conversations.

Reference re Impact Assessment Act, 2023 SCC 23: how principles of international environmental and human rights law could (and should) inform the interpretation of the IAA

By Sara Seck Sara.Seck@dal.ca

In October 2023, the Supreme Court of Canada released its eagerly – or fearfully – awaited decision in the Reference re Impact Assessment Act, 2023 SCC 23. Not surprisingly, the work of Meinhard Doelle featured prominently in the analysis of both majority and dissent. Were Meinhard still with us, we would no doubt be engaged in spirited debate over how the majority could have reached the (mistaken) conclusion they did, and what steps should now be taken. Given Meinhard’s interest and expertise in international law, however, we might also have been exchanging ideas on the topic of this blog post – whether explicit engagement by the court with principles of international environmental law as well as human rights might have led to different interpretations of the IAA, and so, different conclusions on the federalism questions.

As is by now well known, the majority of the court (Chief Justice Wagner with Justices Côté, Rowe, Martin and Kasirer) concluded that the designated projects scheme of the IAA was unconstitutional, as its ‘pith and substance’ – “to assess and regulate designated projects with a view to mitigating or preventing their potential adverse environmental, health, social and economic impacts” (para 109) – overstepped federal constitutional competence (paras 134, 204). This was for two reasons. First, the decision-making processes were not directed at regulating effects that were within federal jurisdiction. Second, the IAA’s definition of effects within federal jurisdiction did not, in the view of the majority, align with the actual legislative jurisdiction of the federal government. By contrast, Justices Karakatsanis and Jamal, dissenting in part, concluded that the pith and substance is more precisely understood as “to establish a transparent information-gathering and decision-making environmental assessment process which is focused on whether physical activities or designated projects have adverse federal effects, and if so, whether they should be permitted in the public interest, subject to any conditions” (para 257). In their opinion, the IAA and its regulations, including the entirety of the designated project scheme, is intra vires federal powers, and the IAA’s definition of federal effects is inherently sound (para 354).

The result, and implications, are being carefully analyzed in many environmental law blogs, including a particularly clear overview by colleagues at ABlawg.ca (“Wait, What!? What the Supreme Court Actually Said in the IAA Reference”). Key conclusions include that, as this decision was the outcome of a reference, the IAA still stands. Moreover, the IAA could easily be modestly amended to address the concerns of the majority. Nevertheless, some are of the view that going back to the original CEAA triggering process would be better and result in more reviews (Elizabeth May: Good Riddance to the Impact Assessment Act). There are also questions about the regional and strategic assessment processes, which are ignored in the decision (“Two wins, a loss, and a question mark: What the Impact Assessment Act reference case means for the environment”) as well as whether more attention should be paid to what actually goes on under IAA sections 81-91 which were upheld as constitutional and provide the process for assessments of projects carried out or financed by federal authorities on federal lands or outside Canada. Ultimately, the federal government has committed to amending the legislation, although exactly how remains to be seen. In the meantime, interim guidelines have been released to provide certainty for the projects currently under review under the IAA system.

Relevance of International Law?

The purpose of this blog post is somewhat different. As someone who researches at the intersection of international and domestic law, and at the intersection of environment and human rights law, one of the most striking things about the decision is that international law is entirely absent from it. This is (unfortunately) not a surprise. This fact has been commented on in an excellent blog by Robert Hamilton reflecting on missed opportunities for Indigenous peoples resulting from the SCC’s failure to clarify the scope of federal 91(24) powers, and to show how legislation can and must be interpreted in light of Canada’s international law commitments. A notable source of international law in relation to Indigenous peoples is, of course, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), much of which, as Hamilton demonstrates, reflects customary international law. In this blog, I suggest that the failure of the majority to consider both the history of impact assessment in international law and its present-day context is problematic. Although the dissent also does not explicitly consider international law, its deeper engagement with the reasoning of Justice La Forest in the 1992 Supreme Court of Canada decision in Oldman River led to a better conclusion, in the process integrating several key international environmental law principles into the analysis albeit at times implicitly.

Curiously, the majority decision did choose to reference the right to a safe environment (as taken from a 1995 SCC decision, that cited a 1985 Law Reform Commission report) in its first paragraph. One could read this as simply an endorsement of the importance of the environment drawing upon previous precedent. But, given that Canada voted in favour of the July 2022 United Nations General Assembly resolution A/RES/76/300recognizing the right to a clean, healthy and sustainable environment as a human right (while expressing uncertainty as to its content), it equally suggests a different question – might some justices on the Supreme Court have been waiting for – hoping for – more arguments that cited sources of international law, but were left wanting?

As eloquently explored by Natasha Affolder in the McGill Law Journal some years ago with a focus on international biodiversity law, situations have arisen in the past where lawyers have argued for the relevance of international (biodiversity) law, yet judges have failed to grapple with these arguments. On the other hand, situations have also arisen in the past where it appears that judges were waiting for lawyers to clearly articulate the relevance of international (biodiversity) law, but the lawyers did not do so. Could either or both of these scenarios have arisen in the case in the IAA Reference? I do not claim to know. Nevertheless, I propose to sketch out why international law is relevant to this case, even though it is a decision on a seemingly domestic law question squarely focused on the constitutional division of powers. I will reflect on what may have been missed in the process.

Both majority and dissent in the IAA Reference refer often and favourably to Justice La Forest’s majority SCC decision in Oldman River. For those who study international environmental law and international sustainable development law, it is notable the Oldman River upholding the federal Environmental Assessment and Review Process (EARP) Guidelines Order dates from 1992, the same year as the United Nations Conference on Environment and Development (UNCED) about which more will be said below. Notably, in Oldman (p37), Justice La Forest makes the following observation:

I cannot accept that the concept of environmental quality is confined to the biophysical environment alone; such an interpretation is unduly myopic and contrary to the generally held view that the “environment” is a diffuse subject matter; see R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401. The point was made by the Canadian Council of Resource and Environment Ministers, following the “Brundtland Report” of the World Commission on Environment and Development, in the Report of the National Task Force on Environment and Economy, September 24, 1987, at p. 2:

Our recommendations reflect the principles that we hold in common with the World Commission on Environment and Development (WCED).  These include the fundamental belief that environmental and economic planning cannot proceed in separate spheres.  Long-term economic growth depends on a healthy environment.  It also affects the environment in many ways.  …  Economic and environmental planning and management must therefore be integrated.

Surely the potential consequences for a community’s livelihood, health and other social matters from environmental change are integral to decision-making on matters affecting environmental quality …

Two key points of continued relevance emerge from this passage. First, environmental quality in itself means more than the biophysical; the environment cannot be understood as separate from economy or society both of which depend on a healthy environment. Second, environmental decision-making must integrate livelihood and social dimensions (but also comply with the constitutional division of powers).

Rio Declaration on Environment and Development: Principles

The ideas evident in Justice La Forest’s text above are also reflected in the principles of the 1992 Rio Declaration on Environment and Development, one key outcome of the UNCED held in Rio that year.  The Rio Declaration is comprised of 27 Principles, including Principle 17: “Environmental assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant effect upon the environment and are subject to a decision of a competent national authority.” Not surprisingly, the first federal environmental assessment legislation, CEAA dates from 1992. But this is not the only principle, nor were these principles merely stated in 1992 then forgotten. Indeed, the international community has repeatedly re-affirmed the principles of the Rio Declaration at international meetings and in UN General Assembly resolutions over the years, including in 2002 at the World Summit on Sustainable Development in Johannesburg, in 2012 at the Rio +20 Summit in the outcome document the Future We Want, and most recently, at Stockholm +50. International environmental treaties routinely incorporate Rio Principles into their preambles or substantive provisions, and the July 2022 UN General Assembly resolution A/RES/76/300 recognizing the right to a clean, healthy and sustainable environment also reaffirms the Rio Declaration. Many of these principles are already found in Canadian environmental law statutes, whether in preambles or as stand-alone substantive provisions or as considerations in decision-making. While the Rio Declaration is not a treaty, some of the principles may or do reflect customary international law. These principles must surely, then, be relevant to statutory interpretation given that Canadian laws are to be interpreted in conformity with Canada’s international legal obligations. At a minimum, the principles of the Rio Declaration are part of the international context in which existing domestic environmental laws have come to be, and so are relevant to a purposive approach to statutory interpretation.

One famous Rio principle is the precautionary principle, and both majority and dissent do consider it in their analysis. However, this is no surprise as it is explicitly incorporated into the IAA’s purposes as detailed in s6(2). Notably, the dissent in the IAA Reference invokes the SCC’s 2002 decision in Spraytech which cited the arguably stronger Bergen Ministerial version of the principle and used it as an interpretative aid – the dissent further interprets the legal effects of the IAA’s s7 prohibitions in light of the precautionary principle (para 286), something that the majority fails to consider.

The Rio Declaration also makes repeated reference to sustainable development, of importance for understanding the references to sustainability in the IAA. This is especially so in light of Rio Principle 4 on integration: “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.” It is certainly the case that Justice La Forest’s decision in Oldman River incorporates the principle of integration as noted from the passage quoted above, and the dissent in the IAA Reference clearly draws upon this principle in its analysis (which also features strongly in a passage quoting Meinhard on the importance of an integrated decision process (para 330)). The majority, on the other hand, is clearly troubled by references to sustainability as if this adds something unacceptable into the analysis, rather than simply being the way in which environmental decision-making has been understood since at least 1992. This leads the majority to propose two nonsensical hypotheticals (paras 170 – 175) that presume it is possible to consider federal environmental effects without considering sustainability at the same time – the principle of integration would suggest that what the majority demands is not acceptable as an environmental decision-making process. While Principle 4 clearly states that environmental protection cannot be considered in isolation from sustainable development, this is arguably what the majority insists federal decision-makers must do.

Procedural rights and the 2018 Framework Principles

There is much more that could be said about the way in which principles of international environmental law found in the Rio Declaration inform the structure of the IAA and how they should inform its interpretation. For example, Rio Principle 10 speaks to procedural environmental rights (access to information, public participation in decision-making and access to justice). As a planning tool, the essence of environmental assessment is of course all about information gathering and effective public participation in the process (see eg para 160). Beyond the Rio Declaration is the question of whether and if so how the UNGA recognition of the right to a clean, healthy and sustainable environment – and Canada’s vote in favour, albeit with uncertainty over its meaning – could have informed the analysis in the IAA Reference. It is clear that since the adoption of UNDRIP in a UNGA resolution in 2007, much has changed in the Canadian legal landscape even if much remains to realize Indigenous self-determination and the resurgence of Indigenous ecological laws. An ideal approach to the interpretation of the IAA would be one that situates it in the broader landscape of clarifications of procedural environmental human rights evident in the work of special experts of the Human Rights Council, perhaps especially the 2018 Framework Principles on Human Rights and the Environment. The 2018 Framework Principles reflect diverse sources of existing international law and include not only Framework Principle 8 (impact assessment) but also Principle 4 (ensuring the safety of environmental human rights defenders), Principle 5 (freedom of association, expression and peaceful assembly), Principle 6 (education and public awareness), Principle 7 (access to information), Principle 9 (public participation), Principle 10 (access to effective remedies), Principles 3 (anti-discrimination) and 14 (protecting the rights of those most at risk) and Principle 15 (obligations to Indigenous peoples). A key point is that a decision-making function that focuses on public interest (something the majority views to be problematic) does not seem out of step if one understands that a fundamental component of effective environmental assessment is public participation in order to inform the decision-making process … one that should consequently result in a decision that is ‘in the public interest’.

The Do No Harm Principle, Climate Change and the Marine Environment

Finally, there is Rio Principle 2 which embodies both ‘sovereignty over natural resources’ and the ‘do no harm’ principle, elaborated in jurisprudence of international courts and tribunals that have explored expectations of due diligence in the prevention of transboundary and global environmental harms. Principle 2 could and should inform an interpretation of the gaps in Canada’s woefully underdeveloped jurisprudence on jurisdiction over the prevention of transboundary interprovincial environmental harms (para 189 – being limited to date to marine pollution and interprovincial rivers – but does no jurisprudence mean no federal jurisdiction, or is it simply that these issues have not yet come before the courts?) Principle 2 could and should also help to overcome Canada’s ‘head-in-the-sand’ failure to acknowledge responsibility to prevent (and remedy) contributions to global environmental harms including but not limited to climate change (crisis). While it is beyond the scope of this post to delve further into the implications of this observation, I note that the fallout of the IAA Reference for greenhouse gas (GHG) emissions regulation is explored in a recent blog by David Wright, with reference to climate impacts on Indigenous peoples, among other considerations. Moreover, in a Climate Law paper in honour of Meinhard that was published earlier this year,  Adebayo Majekolagbe, David Wright and I explored the relationship between impact assessment law, the social cost of carbon, and climate loss and damage. In short, there is more work to be done both to unpack the linkages between climate impact assessment and remedy for climate harms, and the SCC’s IAA Reference is not helpful. In my view, SCC federalism jurisprudence and especially the Carbon Pricing References must be understood narrowly given its focus on regulation of GHG emissions through pricing. It is not about regulating other climate issues such as climate adaptation or climate loss and damage, nor is it about regulation of non-emissions reduction mitigation activities – such as regulation of carbon dioxide removal technologies – an emerging and controversial topic including ocean-based approaches.

At least until Canada’s adoption of its federal climate adaptation strategy just this past year,  one would be forgiven for assuming that climate change law was only about reduction of GHG emissions. In fact, GHG emisssions do indeed contribute to and cause harms – within the jurisdiction of the emitter, as well as transboundary (including interprovincial, or province to territory) and global harms. This includes harm to the marine environment, a recognized head of federal power under the POGG national concern doctrine as determined by the SCC in Crown Zellerbach and acknowledged by both majority and dissent in the IAA Reference. The majority’s narrow understanding of federal environmental effects and obligations in the IAA Reference (paras 182-189) seems remarkably distant from international environmental law guidance on responsibilities across borders, even as international cooperation to address liability and compensation (Rio Principle 13) remains unmet. Importantly, several Advisory Opinions aimed at clarifying the obligations of states in relation to climate change are before international courts and tribunals (see ICJ, ITLOS, IACHR), and linkages between climate change and oceans governance – notably the UN Convention on the Law of the Sea (UNCLOS) and obligations to protect the marine environment – will be clarified in some of these, while some will draw attention to human rights dimensions. In this light, it is interesting to note Canada’s submission to the International Tribunal on the Law of the Sea on due diligence under UNCLOS (para 59):

Canada encourages the Tribunal to find that under Part XII, States Parties have a due diligence obligation to protect and preserve the marine environment in relation to climate change, which includes preventive measures to avoid and reduce pollution of the marine environment from GHGs. In addition, given the significant risks associated with climate change, including acidification, oxygenation, adverse impacts on biodiversity, and exacerbated sea-level rise, Canada believes that the standard of due diligence in relation to marine pollution from climate change should reflect those risks accordingly.

It would have been nice to see the SCC IAA Reference considering the broader international context in which its decision arose, including insights from international law. Beyond ‘nice’, it is a requirement. Canadian statutes must, at a minimum, be interpreted so as not to undermine Canada’s international legal obligations. I believe that the failure to engage in this interpretive exercise even while considering seemingly domestic challenges like the division of powers has implications for the analytical process, although there is more work to be done beyond these preliminary reflections to determine exactly what consequences flow from such a failure.