CALGARY — The Alberta Court of Appeal has concluded that the amended federal Impact Assessment Act remains unconstitutional in its application to most provincially regulated projects.

In a 4–1 reference opinion released October 9, the court's majority said Parliament addressed some problems identified by the Supreme Court of Canada in 2023 but did not fully confine the designated-projects regime to matters within federal jurisdiction.

The majority held that the designated-projects portion of the Act and its regulations are unconstitutional except when applied to primarily federal undertakings. The opinion is advisory, as reference decisions are, and it can be appealed to the Supreme Court of Canada.

Majority says federal reach remains too broad

Justices Michelle Crighton, Jo’Anne Strekaf, Bernette Ho and Jane Fagnan found that parts of the definition of "adverse effects within federal jurisdiction" still exceed federal heads of power.

They also said the law's decision-making provisions can still allow Ottawa to regulate a provincial project as a whole, rather than limiting federal action to effects that fall within federal authority. The majority rejected severing section 7 — the provision that can stop work on a designated project — as an adequate fix.

The Act creates a federal process for evaluating the environmental, health, social and economic effects of designated projects such as mines, pipelines and ports.

One judge would have upheld the law

Justice Kevin Feehan dissented. He concluded that Parliament's 2024 amendments adequately addressed the Supreme Court's concerns and that the amended Act falls within federal jurisdiction. He would have upheld the law in its entirety.

The split matters because the opinion is not the last possible word. The earlier reference over the original 2019 law ultimately reached the Supreme Court, whose 2023 majority found the designated-projects portion largely unconstitutional while upholding the regime for federal projects.

Alberta urges Ottawa to revise the Act

Premier Danielle Smith and Justice Minister Mickey Amery welcomed the opinion and called on the federal government to accept it and work with Alberta to revise the law. That is Alberta's political response, not a separate finding by the court.

The decision arrives as Ottawa and Alberta work together on the proposed Pacific Link pipeline, which recently received a national-interest designation. Any practical effect on that project will depend on later government decisions and any further litigation.

Sources: Court of Appeal of Alberta opinion, 2026 ABCA 320, released October 9; Court judgment index; Government of Alberta statement, October 9; The Canadian Press via CityNews, updated October 9.

Lead image: flag of Alberta via Wikimedia Commons, public domain. Not a photograph of the court hearing or the projects covered by the Act.