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

Jeffrey Jones - The Globe and Mail | October 26, 2023 | 11:08 am Energy Intelligence Canada Coal Oil & Gas 

The Eagle’s Nest nickel-copper-PGM project in northern Ontario’s Ring of Fire region. (Image courtesy of BHP.)

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

Environment Minister Steven Guilbeault announced a series of provisions for the agency that will be in force until the government makes amendments to the Impact Assessment Act. The interim operating plan is aimed at making sure projects now in the process of seeking approvals will have “have an orderly and clear path forward,” he said in a statement.

Until the court’s ruling this month, projects that fell within a list of physical activities would be assessed by the agency, and the minister could exercise discretionary authority to bring the IAA into a regulatory process if he decided that a project could affect areas of federal jurisdiction, including species, water bodies or Indigenous lands.

That power is paused while the government develops changes to the legislation that align with the court’s decision, which includes incorporating more co-operation between the federal and provincial governments, the minister’s office said.

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

The Supreme Court ruled 5-2 that the act, aimed at protecting Indigenous Peoples and the environment, was an unconstitutional overreach. 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.

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 mining development in Ontario and offshore wind-energy proposals in Nova Scotia and Newfoundland – will continue because they are aimed at understanding the impacts but do not involve decision-making.