Monday, June 10, 2024

The Standing Senate Committee on Energy, the Environment and Natural Resources has the honour to table its

EIGHTH REPORT

Your committee, which was authorized to examine the subject matter of those elements contained in Division 28 of Part 4 of Bill C-69, An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024, has, in obedience to the order of reference of Thursday, May 9, 2024, examined the said subject-matter and now reports as follows:

Division 28 of Part 4

Division 28 of Part 4 amends the Impact Assessment Act (IAA), which relates to federal impact assessments. The IAA received Royal Assent in June 2019 and replaced the Canadian Environmental Assessment Act, 2012. In October 2023, the Supreme Court of Canada released its opinion in Reference re Impact Assessment Act, concluding that parts of the IAA were outside of federal jurisdiction. Division 28 of Part 4 is the Government of Canada’s legislative response to the majority opinion of the Supreme Court of Canada. Over 3 meetings, your committee heard 15 witnesses on the subject matter of Division 28 of Part 4. Your committee reports the following observations:

Observation 1

The committee notes that some witnesses suggested that the amendments, which serve to constrain the application of the IAA more narrowly to federal jurisdiction, could correct the jurisdictional problems identified in the majority opinion of the Supreme Court of Canada’s Reference re Impact Assessment Act case.

Observation 2

The committee regrets that the Minister of Environment and Climate Change as well as his officials did not appear before the committee to explain the Government of Canada’s proposed amendments in Division 28 and how they comply with the Supreme Court of Canada’s majority opinion.

The committee heard from the Alberta Minister of Justice and the Saskatchewan Minister of Justice, both of whom expressed serious concerns related to the constitutionality of the amendments that could lead to another court challenge.

Observation 3

The committee asks the Government of Canada to provide the Senate with the assurance that the proposed amendment to Paragraph 33(1)(d) of the IAA, which relates to the substitution of federal and provincial assessment processes in respect of consultations with Indigenous groups that may be affected by a designated project, does not contravene Section 35 of the Constitution Act, 1982 and the United Nations Declaration on the Rights of Indigenous Peoples Act.

Observation 4

The committee notes that there is a need for Parliament and the Government of Canada to review the IAA to ensure that other aspects of environmental impacts, including transboundary air pollution, are being addressed.

Respectfully submitted,