Ottawa unveils interim plan for environment agency after court rules it unconstitutional

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Ottawa is suspending the environment minister’s authority to force major energy or mining projects to be judged for their environmental impact as one part of a temporary operating plan for the Impact Assessment Agency after the Supreme Court ruled it encroached on provincial jurisdiction.

The interim guidance, released on Thursday, is aimed at making sure project proponents now in the process of seeking approvals will “have an orderly and clear path forward” while the government makes amendments to the federal Impact Assessment Act to bring it in line with the constitution, it said. It is not known how long it will take for that to happen.

Until the court’s ruling this month, projects that involved certain physical activities would be assessed by the Impact Assessment Agency. The minister could also exercise discretionary authority to bring the agency into a regulatory process if he or she decided a project could affect areas of federal jurisdiction, including wildlife, water bodies or Indigenous lands.

That discretion has been used on just five occasions since the act was adopted in 2019, including for coal-mine projects in Alberta and British Columbia and the Ring of Fire mining proposal in Ontario. All predated the current Environment Minister Steven Guilbeault’s time in the role.

The government said an amended assessment act will remain consistent with United Nations Declaration on the Rights of Indigenous Peoples, and provide for engagement with, and participation by, Indigenous communities. It will also feature “robust co-operation tools” for collaborating with provinces in ways that recognize federal and provincial jurisdiction and provide certainty to project developers and others.

“While it is too early to know the exact amendments required and a precise timeline, I can say that we’re looking at the shortest path forward to bring the act into compliance,” Mr. Guilbeault said at a news conference in Ottawa.

In a setback for Ottawa’s environmental agenda, the Supreme Court ruled 5-2 that the act was an unconstitutional overreach as sections of it spilled over into provinces’ authority. Business groups and provincial premiers, including Alberta’s Danielle Smith and Ontario’s Doug Ford, lauded the decision, saying it would help eliminate delays for major energy and mining projects.

Ms. Smith said on Thursday she’s pleased that Ottawa is suspending the environment minister’s discretionary power. “That does show respect for the process, and I hope that they continue in that vein,” Ms. Smith told reporters.

She said she will wait to see how other changes to the act roll out, but that she hopes Ottawa won’t try to seek “carte blanche to invade our jurisdiction.”

Under the temporary system, the Impact Assessment Agency will assess all projects that were under examination and provide an opinion on whether federal jurisdiction applies, applying the Supreme Court’s analysis. Consultation with Indigenous communities in processes already under way will also continue in cases where there is clear federal jurisdiction, it said.

Meanwhile, the agency will still be prepared to provide opinions on whether a full assessment is warranted, and invite proponents to collaborate on them.

Twenty-three projects are now in the federal impact assessment process and another 20 are still being reviewed under previous legislation. The government said three regional assessments – the Ring of Fire and offshore wind-energy proposals in Nova Scotia and Newfoundland – will continue because they are aimed at understanding the effects but do not involve making approval decisions on the projects.

Natural Resources Minister Jonathan Wilkinson, who as previous environment minister last used the discretionary authority in the assessment act, told reporters in Calgary he believes the interim steps will provide proponents with clarity in terms of how the process will work for projects that are already in the queue. But he added that certainty will only be ensured with an amended act.