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MD Legacy Lecture, International Law, and the IAA Reference

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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.

David Wright: Awaiting the Supreme Court of Canada on the constitutionality of the IAA

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This past weekend Dalhousie University commemorated National Day for Truth and Reconciliation, Treaty Day in Nova Scotia, and the launch of Mi’kmaq History Month. For readers and contributors to this blog, it is also just over a year ago that our treasured colleague and blog founder Meinhard Doelle was tragically killed while cycling. Since then, many initiatives have remembered and celebrated Meinhard’s contributions (for a quick summary of some, see p4 of the Hearsay). Among his contributions was the publication of the casebook Environmental Law: Cases and Materials, together with co-author Chris Tollefson. Among the topics covered and revisited in each updated edition of this book is the relationship between environmental law and Indigenous peoples, from reflections on the colonial history of conservation and emergence of Indigenous Protected and Conserved Areas (IPCAs), to the evolution of Canadian Aboriginal law jurisprudence including the relationship between the Crown duty to consult and accommodate and seek consent, implementation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and the (co-)evolution of (environmental) impact assessment laws. For many reasons it is therefore timely to share the post below from Meinhard’s friend and colleague UCalgary prof David Wright. The federal Impact Assessment Act while in no way perfect has taken significant steps to integrate Indigenous rights and jurisdiction. Yet, as with so many federal environmental law statutes, it has been under constitutional attack: what can we expect?

Supreme Court of Canada Will Soon Rule on the Constitutionality of the Federal Impact Assessment Act. Here’s What to Watch for…


By: David V. Wright


Matter Commented On: Forthcoming Supreme Court of Canada reference case in the Matter of An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, SC 2019, c 28 and the Physical Activities Regulations, SOR/2019-285; and the Matter of a Reference by the Lieutenant Governor in Council to the Court of Appeal of Alberta under the Judicature Act, RSA 2000, c J-2, s 26

For anyone interested in impact assessment in Canada, this is a suspenseful time. The Supreme Court of Canada (SCC) is expected to soon release its ruling on the constitutionality of the federal Impact Assessment Act,  SC 2019, c 28 [IAA] and the associated Physical Activities Regulations, SOR/2019-285 (the latter setting out the list of projects that trigger application of the regime). My Environmental Impact Assessment Law seminar students and I are set to dive deeply into the decision as soon as it drops, and no doubt many others plan to do similar. For now, this short post sets out ten things to watch for. (For those interested in deeper dives into this statutory regime and how we got here, see my previous publications here, here and here).

Before turning to the issues, I would like to dedicate this post to Dr. Meinhard Doelle. Just over a year ago, Meinhard was killed while cycling in rural Nova Scotia. No words suit this unspeakable tragedy, and the grieving continues. Meinhard was a model environmental law scholar, mentor, colleague, friend, and community member. His contributions on all fronts were extraordinary and too numerous to count (for some context see here and here). Indeed, he was extraordinary. Meinhard’s ability to bring a principled and inclusive approach to society’s most complex law and policy challenges was unmatched, and always came with the sincerest of smiles. One area for which he had a special passion and deep wisdom was impact assessment. He literally wrote the book(s) on it, and was a trusted source of knowledge and advice across spheres of private practice, not-for-profit, government, and academic institutions. No doubt many of us are thinking of him frequently as we anticipate the release of this SCC ruling. Whatever the outcome, Meinhard would have engaged by embracing the complexity with his energetic, evidence-based, hope-filled ways that continue to inspire so many of us.

  1. Direct Answers to the Reference Questions Posed

This is a reference case, not the typical lawsuit between parties. A reference case happens when a federal or provincial government asks the court to provide its opinion on a particular legal issue (see here for a helpful explainer). In the present context, Alberta posed questions to the Alberta Court of Appeal (ABCA), seeking an opinion on the constitutionality of the federal impact assessment regime. In a 4:1 split decision, a majority of the ABCA said the regime was not constitutional (Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII) [ABCA Reference]). Canada then appealed to the SCC. That hearing took place in March 2022, and the Court’s opinion is expected to be released soon.

In a nutshell, using two related questions, the Alberta government asked whether the IAA and its regulations are constitutional “in whole or in part” (ABCA Reference at para 4). The Supreme Court of Canada will respond to these questions, but one thing to watch for on this front is the extent to which the SCC parses the issues. For example, they could find that the IAA is constitutionally valid in whole, but the regulations are unconstitutional in part. Or they may rule that there are parts of the Act that are unconstitutional, but the project list regulations are fine. On the former, for example, there remains a chance that the SCC will actually agree with the majority of the ABCA that the inclusion of in situ oil sands projects on the project list is not constitutional, presumably because there is not a strong enough link to a federal head of power (more on this below). It is difficult to predict whether, and if so how, the SCC might separate out these issues, and what the fallout of such parsing will mean. If a majority of the Court does find any part of the IAA or regulations unconstitutional, legislative amendments will almost certainly ensue. In any event, to the extent that any aspect of the regime is ruled to be unconstitutional, the details and nuance will matter a lot (and so beware of both simplistic cheerleading and tantrums).

  1. Majority Versus Minority Opinions

Most who follow this area of the law would agree that a unanimous decision from the SCC is unlikely. The Court is expected to split. The dividing line(s) may well resemble those seen in the split bench in Re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) [Re GGPPA]. One twist in the current context is that the SCC sat as a bench of seven for the IAA case, not the usual nine (due to Justice Russell Brown being on leave from the Court at the time). The good news here is that the composition of the bench was still an odd number, meaning that even if they split there will still most likely be a majority opinion that carries the day and provides sufficient certainty to carry on with whatever constitutional analysis the majority sets out. I say “most likely”, however, because there is a chance that the Court will be badly fragmented with several different opinions going in various directions (for an example of this in a non-reference context, see Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 (CanLII)). That would be a very unfortunate outcome because it would mean the legal landscape is foggier than ever, and therefore very difficult for Parliament, provinces, proponents, and the public to navigate.

  1. Response to (Rebuke of?) of the ABCA Opinion

As my colleagues have aptly described on ABlawg here and here, the ABCA majority opinion engaged in an unusual degree of extra-judicial reasoning and rhetorical claims of exclusive jurisdiction. This was particularly so in relation to greenhouse gas emissions and climate change, where the ABCA majority characterized federal regulation of greenhouse gas emissions as intruding on the lives of citizens and pointed to examples (in fairness, acknowledged by the majority to be extreme ones) of measures such as to “[s]top eating beef”, to “[s]top driving vehicles of any kind”,  to “[s]top eating as much” and to “[s]hut down all the cement plants” (at para 294). This type of rhetoric and judicial commentary is abnormal to say the least (see discussion by Nigel Bankes here). As such, it will be interesting to see the extent to which, beyond agreeing or disagreeing with the ABCA’s majority and minority analyses and conclusions, the SCC responds to, or perhaps even calls out, this type of content from the ABCA majority opinion.

  1. Oldman Clarity #1: Scope of Assessment

The constitutional landscape in which today’s federal impact assessment sits is largely a product of the 1992 landmark case of Friends of the Oldman River Society v Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 SCR 3.That case laid down a key foundational aspect that is likely to be center-stage in the IAA reference. In that case, the SCC majority indicated that when the federal government engages in the assessment of a project, the scope of that assessment can be very broad, including environmental repercussions but also including socio-economic concerns and economic benefits (Oldman at 72). In saying so, the SCC also explained that the scope of that assessment is not confined to the federal head(s) of power that stand to be adversely impacted (at 72). The SCC explained this point using federal authority over interprovincial railways as an example (at 69-72). However, Oldman did not provide complete clarity. Open legal questions have lingered around what limits there might be on federal assessment of other projects, namely natural resource projects for which the federal government does not have explicit authority.

The ABCA majority was very pre-occupied with this issue, pointing to the example of an in situ oil sands project wholly within the province, but for which the federal government has situated itself under the IAA to engage in a comprehensive assessment leading to final approval or rejection (see e.g. ABCA Reference at para 284). In the time since Oldman, the prevailing view has been that the federal government does have a constitutional basis to engage in comprehensive assessment and decision-making with respect to such projects (see this ABlawg post by Profs Martin Olszynski and Nigel Bankes). But not everyone has agreed. As pointed out by Meinhard Doelle in his 2008 book on federal assessment, there is a narrower view attributed to Steven Kennett that suggests comprehensive federal jurisdiction only applies if the project is referred to directly or by implication of a federal head of power (at 67). It was that line of argument that the ABCA picked up in this case. And so, a key aspect to watch for in the SCC opinion is whether federal constitutional authority will be somehow circumscribed for some types of projects or certain aspects of the regime (e.g. scope of assessment or final decision-making). If a majority does indeed go the route of constitutionally limited federal authority, expect federal impact assessment to be changed forever. It would be the most significant development since 1992.

  1. Oldman Clarity #2: Federal Heads of Power

Related to point #1 above, Oldman was very clear on the proposition that the federal assessment regime may relate to several heads of power simultaneously (at 72); See also Canadian Wildlife Federation Inc v Canada (Minister of the Environment), 1989 CanLII 7273 (FC), [1989] 3 FC 309 (TD), aff’d (1989), 99 NR 72 (FCA). Typical examples include fisheries and navigation. One aspect to watch for in the forthcoming SCC ruling is how this point will be confirmed and possibly restated with more clarity and with explicit reference to the IAA and regulations. A key aspect to watch is how the SCC will articulate what the nexus between the federal head(s) of power and the federal legislation must look like, and, further to issue #1 above, whether the scope of federal assessment and decision-making is somehow different based on the head of power engaged.

In addition to watching for what will likely be broad statements about the IAA relying on several heads of power, it will also be interesting to see what the SCC has to say about specific heads of power. For example, while federal authority in relation to fisheries and navigation, and interprovincial pipelines and powerlines are relatively clear, there are open questions about the role of other heads of power in terms of the extent to which they serve as a basis for federal IA legislation. Two key examples are POGG and s 91(24). I now turn to those.

  1. POGG Power in Federal Impact Assessment

Oldman was not particularly helpful in explaining what role the federal residuary power of “Peace, Order, and good Government” (POGG) may play as a constitutional basis for a federal assessment regime. Instead, the majority simply stated, “in any event, it falls within the purely residuary aspect of the ‘Peace, Order, and good Government’ power under s 91 of the Constitution Act, 1867” (at 73). In today’s Gen Z hip speak, this would be a “wait, what?!” moment. It is fair to say that no one had a full understanding of what this meant, let alone what it means in relation to today’s IAA. And so, the POGG power is an important issue to watch in the forthcoming SCC opinion. The SCC may choose to once again side-step the issue and instead hinge their analysis on the typical federal heads of power (as the federal government has tended to do over the years), but perhaps not. Given that the SCC was forced to dive deeply into the POGG power in Re GGPPA, they may feel compelled to speak to it in the IA context as well, if only to further settle the dust on that important but seldom tested federal head of power.

  1. Section 91(24) Head of Power, Including IAA – C-92 Linkages

Under s 91(24) of the Constitution Act, 1967, Parliament has broad jurisdiction with respect to “Indians, and Lands reserved for Indians” (notwithstanding lexicon that is arcane and widely viewed as problematic). The IAA embraces this jurisdiction by integrating deeper consideration of the rights and interests of Indigenous peoples throughout the Act (for detailed commentary, see here). Such use of this federal head of power in impact assessment is not new. Indeed, it was one of the powers discussed by the SCC in Oldman. But there has remained some uncertainty around the extent to which this head of power can support federal impact assessment legislation. As such, this will be an important aspect to watch in the SCC ruling.

This is particularly the case because the s 91(24) aspect of IAA constitutionality is part of a broader legal context of uncertainty around what s 91(24) means for federal and provincial jurisdiction in general. Of even greater consequence in this realm (and more suspense at the moment) is another SCC reference case that is set to also be released imminently, that one originating in the Quebec context regarding Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families. In short, that Act aims to establish national standards for the provision of child and family services by providing a mechanism through which Indigenous laws can take priority over inconsistent federal and provincial laws governing the delivery of child and family services to Indigenous peoples (for insightful commentary and more information, see this post by my colleague, Dr. Robert Hamilton). The reference case asks whether that law is a valid exercise of the federal government’s s 91(24) head of power. Given its square focus on s 91(24), that SCC opinion will no doubt speak extensively about this head of power, including the relationship between s 91(24) and s 35 of the Constitution Act, 1982, and in doing so it will hopefully shed light on this aspect of the IAA reference. Because these two references are being considered by the SCC at virtually the exact same time, one would reasonably expect that the opinions will reference each other in an attempt at consistency and clarity. All of this, of course, is happening in the context of Canada’s commitment to full implementation of the United Nations Declaration on the Rights of Indigenous Peoples (GA Res 61/295 (Annex), UN GAOR, 61st Sess, Supp No 49, Vol III, UN Doc A/61/49 (2008) 15) (UNDRIP), so expect both SCC rulings to include at least some consideration of what UNDRIP means in relation to the IAA and Bill C-92.

  1. Climate Change, Impact Assessment, and Federal Heads of Power

Yes, we’ve known about human-induced climate change for a long, long time. But not long enough to have included it in the constitution. So Canada’s constitution, of course, does not assign responsibility for addressing climate change. Rather, this is another instance of shared jurisdiction between federal and provincial governments who rely on their respective related heads of power to engage in addressing climate change through legislative measures. Impact assessment has a role to play in addressing climate change, for example by gathering information on carbon-intensive projects and then deciding how such projects would impact achievement of Canada’s emission reduction commitments. And it was on this logic that explicit climate change provisions were included in the IAA. But the constitutional basis for federal assessment of these aspects of a project would benefit from more clarity. The federal government has done a relatively poor job of explaining the link between this aspect of the IAA and federal heads of power. Expect the SCC to speak to this aspect pointedly, including how climate change impacts are becoming omnipresent and, as such, have impacts on the usual federal heads of power such as fisheries and navigation.

  1. Presumption of Constitutionality and the Role of Judicial Review

The presumption of constitutionality dictates that if the text of legislation can be interpreted as constitutionally valid, courts should favour the meaning that supports constitutionality. A key issue to watch for in the SCC’s opinion is the extent to which the Court relies on this presumption to say that a constitutional interpretation of the IAA and regulations is indeed possible, and so that interpretation applies. It is difficult to predict just how much work this presumption might do in the SCC opinion, but it may be the case that the Court will not rely on it too heavily, preferring instead to engage in a robust and exhaustive constitutional analysis before also pointing to this presumption as further support.

 

It will also be interesting to see the extent to which the SCC acknowledges that because a reference case is inherently abstract (just a government’s legal question posed without a fact-rich legal dispute), it would be most appropriate to address some of the difficult legal dimensions on a case-by-case basis in the form of judicial review of an actual federal government decision under the IAA and regulations. Put another way, the SCC may take the view that the reference is focused on the existence of federal authority rather than the exercise of such authority. This would be a stark contrast from the ABCA opinion, which was very pre-occupied with how such federal authority might be exercised.

  1. More ABlawg Commentary to Come

One thing is for certain – numerous ABlawg posts will follow soon after the SCC releases its opinion from the likes of Profs Sharon Mascher, Martin Olszynski, Nigel Bankes, yours truly, and possibly others. Watch for that in the days and weeks ahead.

Thanks to my colleagues Nigel Bankes, Martin Olszynski, Sharon Mascher, and Shaun Fluker who reviewed drafts of this post. And thanks to Dr. Sara Seck and Professor Jennifer Koshan for reviewing and cross-posting on both the Dalhousie Environmental Law News Blog and ABlawg, respectively.

Disclosure statement: In addition to being interested in this reference case given my teaching the Environmental Impact Assessment Law seminar in this area this fall, I was also co-counsel for one of the intervenors at the SCC where we made submissions in support of the constitutionality of the IAA, including climate change aspects. Additionally, I am a member of the federal Impact Assessment Roster, which is comprised of experts who may serve on independent review panels.

 

 

Responsible Business Conduct and Impact Assessment Law: Origins of a Project and Reflections

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Responsible Business Conduct and Impact Assessment Law: Origins of a Project and Reflections

written by Prof Sara Seck 

Environmental lawyers and environmental law professors spend a lot of time thinking about how to prevent environmental harms and the key role that environmental assessment legislation can play to that end. My late colleague Meinhard Doelle, founder of this blog, was a preeminent example of this. His expertise in environmental assessment (EA) law in all its diverse forms – including its potential to tackle challenges such as climate change – is well known and involved collaborations with many (see 2016 blog on next generation EA with John Sinclair and Robert Gibson). Meinhard passed along his knowledge and passion for EA – and by extension, the more expansive impact assessment (IA) – to numerous undergraduate and graduate students, including Dr. Adebayo Majekolagbe, who defended his PhD thesis on just transition and impact assessment law in December 2022 (see 2023 blog reflecting on Meinhard’s contributions to Bayo’s thinking).

While Meinhard was musing about how to prevent harm through legislative EA tools, I was thinking about how developments in the new field of business and human rights (BHR) might be used to prevent harms using a human rights and environment lens (see blog co-authored with Meg Williams). I was also collaborating with University of Ottawa colleague Penelope Simons on the human rights concerns arising from extractive industries with a particular focus on Indigenous rights and gender justice (see co-edited special issue of CJWL and book chapter).

Meinhard and I would sometimes reflect upon our different approaches to similar problems, and in 2019 an opportunity arose to seek research funding through a SSHRC Knowledge Synthesis Grant: Informing Best Practices in Environmental and Impact Assessments. The context was the recent passage of new federal impact assessment legislation, and, greatly assisted by Bayo, a team was assembled including our Dalhousie colleague Naiomi Metallic, Chancellor’s Chair in Aboriginal Law and Policy, and a successful application submitted.

Details about this project and its outcomes are available on the Schulich Law Scholars digital commons (herehttps://digitalcommons.schulichlaw.dal.ca/ialawrbc/). We described the project as follows:

Extractive companies play a major role in the Canadian economy, and their actions have multi-faceted effects on the communities in which they operate, whether within or outside of Canada. Currently a wide range of Responsible Business Conduct (RBC) guidance tools, often embedding human rights due diligence, are promoted to extractive companies. At the same time, companies must comply with Impact Assessment (IA) laws in the jurisdiction in which they operate. While the legal framework of IA and the various RBC tools have some obvious overlaps, their interrelationship has been understudied. This project aims to illuminate the interrelationship and to encourage further research with the aim of facilitating an effective and human rights respecting approach to the integration of IAA and RBC in Canadian law and policy. This research is funded by a SSHRC Knowledge Synthesis Grant: Informing Best Practices in Environmental and Impact Assessments led by Professors Sara Seck and Penelope Simons (Ottawa) with collaborators Professors Meinhard Doelle and Naiomi Metallic and doctoral candidate Bayo Majekolagbe as lead graduate researcher.

A team of JD and graduate student researchers were assembled at both Dalhousie and Ottawa, and in 2020 (updated in 2021) we completed an overview report described as follows:

This report aims to identify RBC tools referenced in the literature as relevant and/or promoted to Canadian extractive companies operating within and outside Canada. While not appraising or pronouncing on the quality of RBC tools, we consider the different actors that promote these diverse tools and whether there is a coherent framework for the efficient and effective application of current and future tools. We focus on RBC tools on human rights, stakeholder engagement, the rights of Indigenous peoples, and the rights of women and girls. Further, we review the position of scholars on the relationship between RBC and IA.

We also completed an evidence brief that was shared with others as part of the Impact Assessment Agency of Canada (IAAC) and SSHRC’s aim to “inform best practices for environmental and impact assessments” (see all evidence briefs here).

At the time, Meinhard and John Sinclair were in the process of editing a new book reflecting on diverse aspects of the new Impact Assessment Act. Entitled The Next Generation of Impact Assessment: A Critical Review of the Canadian Impact Assessment Act, this book project provided us (lead author Bayo Majekolagbe) with an opportunity to draft a chapter reflecting on the IAA RBC relationship (pre-print posted here). We describe our aims in this chapter in part as to:

highlight the role of proponents and their consultants as human rights duty bearers and recommend the integration of human rights approaches into impact assessment processes under the IAA.

However, our work was not – and is not – complete. The conversation about EA and IA laws and RBC that integrates human rights due diligence (HRDD) is still new and ever evolving. For example, one set of RBC guidance that we examine are the OECD Guidelines for Multinational Enterprises, which in 2011 were updated to include a human rights chapter. Currently, the OECD MNE Guidelines are undergoing a ‘targeted update’ which it is anticipated will do a better job of addressing some of the challenges we examined in this project. (An online public consultation on the proposed targeted updates is taking place until February 10, 2023).

Beyond improvements to RBC guidance tools and better law and policy frameworks to facilitate the integration of RBC and IAA in the interests of ecological, environmental and social justice through respect for human rights, there is a need for educational tools that explore and explain these relationships to governments, businesses, lawyers and communities (among others). From 2021 to 2022, with the assistance of Charlotte Connolly and Erin Dobbelsteyn, we embarked upon the development of two such instruments:

Both are works in progress. We invite feedback on these educational tools which will be updated over the course of 2023. Please send comments to: KSG.IA.RBC@gmail.com

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