Supreme Court majority rules against federal environmental impact law

The Supreme Court of Canada ruled Friday against federal legislation on the environmental effects of major developments, with five out of seven judges finding most of it unconstitutional because its language could be used to regulate activities within provincial jurisdiction.

The Supreme Court of Canada ruled Friday against federal legislation on the environmental effects of major developments, with five out of seven judges finding most of it unconstitutional because its language could be used to regulate activities within provincial jurisdiction.

Chief Justice Richard Wagner, writing for the majority, said the law as written could regulate activities that are provincial business, instead of restricting Ottawa to environmental effects that are within its power to oversee.

“Even if this court were to accept Canada’s submission that the defined ‘effects within federal jurisdiction’ are within federal jurisdiction, these effects do not drive the scheme’s decision-making powers,” he wrote in the 204-page opinion.

Wagner went on to say that the effects considered in the legislation previously known as Bill C-69, which included a range of environmental and social factors as well as climate change, were “overbroad.”

“It is difficult to envision a proposed major project in Canada that would not involve any of the activities that ‘may’ cause at least one of the enumerated effects,’ he wrote.

“The scheme invites the federal government to make decisions in respect of projects that it has no jurisdiction to regulate.”  

Still, Wagner wrote that provinces must still work within federal rules.

“The fact that a project involves activities primarily regulated by provincial legislatures does not create an enclave of exclusivity. Even a ‘provincial’ project may cause effects in respect of which the federal government can properly legislate.”

Two judges dissented, saying the law was constitutional.