Questions about constitutional validity of environmental legislation causes concern for major project investors Questions about constitutional validity of environmental legislation causes concern for major project investors

Parliamentary amendments to the Impact Assessment Act (IAA) are still raising questions about the constitutional validity of environmental legislation in this country which is creating uncertainty for potential major project investors. This was a key message delivered during the “No time to waste: what needs to change to get major projects and key infrastructure built in Canada?” panel discussion in Calgary.

“One solution is to take parts of past legislation and put together something constitutionally valid which deals with all the litigation problems from the first version of the legislation and also takes parts of the IAA relating to major projects,” says Brad Gilmour, partner and Co-Chair of the Environmental Disputes, Investigations and Enforcement Group.

Brad suggests going through the major project list and removing projects that do not require federal permits. Projects are still on that list that do not require any federal authorization other than a decision under the IAA. An example of this is a fossil fuel generation plant project that does not require a federal permit, but which is often stuck under the impact assessment process.

Brad also believes the level of government that should be involved in an environmental assessment is the one that regulates the lifecycle of that activity which, in most cases, is the province. “Take a mine, for example,” he says. “A province has legislation regarding the application, approval, construction, operation, decommissioning, abandonment and remediation of the mine. The federal government does not have approval in this regard. So, the federal government should not be driving the timeline and process for getting a mine built.”

The panel was hosted by Sander Duncanson, Calgary Manager Partner and, in addition to Brad Gilmour, the panellists included Brad Wall, Osler Special Advisor, and special guests Gitane De Silva, founder and Principal, GDStrategic and former CEO, Canada Energy Regulator, and Jeff Lawson, Executive Vice-President, Corporate Development and Chief Sustainability Officer, Cenovus Energy.

Watch the full panel discussion