41095 AGC v AGA - Factum of the Interveners, CELA and EDC
21 December 2022
41095 AGC v AGA - Factum of the Interveners, CELA and EDC SCC File Number: 40195 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL) 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,. [...] The majority opinion of the Alberta Court of Appeal determined that the IAA regime is constitutionally invalid due to alleged “federal jurisdictional overreach” into matters of exclusive provincial authority.2 However, the majority opinion misapplied the two-stage analytical framework – characterization and classification – to the IAA regime and failed to consider the key role of the precautionary. [...] To determine the constitutionality of a federal environmental assessment (“EA”) statute such as the IAA, it is necessary to conduct a two-step analysis: (a) characterization of the pith and substance of the legislation; and (b) determination of whether the legislation falls within one or more “Classes of Subjects” assigned to the federal government.4 7. [...] However, after the early “planning phase” of the IAA process, the legal requirement to conduct the impact assessment may be waived by the Impact Assessment Agency of Canada.24 This screening mechanism helps to “secure” the constitutionality of the IAA by focusing the impact assessment process only on designated projects that potentially affect matters of federal jurisdiction.25 13. [...] If this Court concludes that functional heads of federal power cannot support the full extent of the IAA as enacted by Parliament, then, in the alternative, the Interveners submit the IAA regime can be upheld, in part, under the interprovincial and international trade and commerce branch of the trade and commerce power.40 The majority opinion found that projects designated by IAA regulations inclu.