Ontario is taking the federal government to court over Ottawa's impact assessment law that was recently deemed unconstitutional by the Supreme Court in a landmark reference case.
"We're pleased that the court made this decision, but more needs to be done. It was just a reference and we needed a decision," Ontario Attorney General Doug Downey said on Tuesday.
The Impact Assessment Act became law in 2019. It spells out how the federal government can get involved in natural resources projects — which normally fall under provincial jurisdiction — if they encroach on areas of federal purview like Indigenous peoples, climate change, and species at risk.
Alberta started a legal battle that eventually made its way to the Supreme Court. On Oct. 13, the Court said parts of the law violated the constitution. The court's ruling was, however, a reference case, meaning the act wasn't struck down. Instead, it's up to the federal government to change the law to ensure it complies with the ruling.
Federal Environment Minister Steven Guilbeault said he's happy to "course correct" the law in an interview with CTV.
That's not good enough for Downey.
"The federal government's response to the Supreme Court's opinion has created unnecessary confusion. Federal ministers have stated that even though the act was ruled unconstitutional, they'll continue to enforce it and apply it to the provinces. And in the meantime, they claim they're going to quote 'work on it.' This is not acceptable," he said.
He wants a quick and clean answer to whether "critical infrastructure" projects like Highway 413 and Ontario Place still need to go through the federal assessment process.
Those are two of several provincial projects the federal Impact Assessment Agency (IAA) is currently looking at, but the government only filed suits over Highway 413 and Ontario Place.
The IAA started looking at Highway 413 in May 2021 after former federal environment minister Jonathan Wilkinson determined it could affect three federally listed species at risk.
"For over two years, Ontario has been engaged in back-and-forth discussions with the agency which had numerous followup questions and requests for information or revisions that are not connected to the reasons why the minister designated the project," the court filing said.
"Ontario has faced significant uncertainty and delays in progressing preliminary design and its own environmental assessment of the project, in part, because the agency has been unwilling to approve the fieldwork required to complete this work.
Only legal action can bring about the clear solution Downey's after on the two projects, he said.
He poured some cold water on working with the federal government to find a way to ensure the act works properly going forward, despite Wilkinson, who is now the federal natural resources minister, saying he hopes the provinces and Ottawa can "commit to this being the last time we look to settle our differences in court."
"We can't wait for Minister Guilbeault to have that conversation. We need to get certainty so we can move the projects forward," Downey said.
Downey's open to conversations on how to mould the act, he said, but he wants to move forward with the court challenge to start the clock ticking toward a solution.
He's also not confident working with Ottawa will bring about the reality he's after.
"It's not whether they're going to respond. It's how they're going to respond," he said. "What we're hearing and what they're saying publicly is that they're going to respond by amending, by keeping it in force, by continuing to occupy that space. They're completely ignoring what the Supreme Court said."
Despite Downey wanting a quick answer, the legal route could take some time. He filed the requisite documents on Tuesday and will ask for an "expedited" review, but acknowledged he doesn't make the court's schedules.
"But we are filing today and there will be a timeline for the federal government to respond, which is pretty short. And hopefully we have a hearing sooner than later," he said.
