This decision addressed three contested Applications: two for permission to intervene; and one to supplement the record, arising from a Reference question regarding the constitutionality of the Impact Assessment Act, SC 2019, c 28, s 1 (“IAA”), as amended by the Budget Implementation Act, 2024, No 1, SC 2024, c 17, and the Physical Activities Regulations, SOR/2019-285. These amendments followed a Supreme Court of Canada decision declaring the original “designated projects scheme” unconstitutional. Alberta contended that the IAA intruded on Provincial jurisdiction, while Canada maintained it was constitutional.

Two non-governmental organizations, Enserva and the MacDonald-Laurier Institute (the “Institute”), sought permission to intervene. Alberta did not oppose, but Canada argued that they lacked sufficient legal interest or unique perspective to assist the Court.

Kirker J. clarified that, pursuant to Rules 14.37(2)(e) and 14.58, a Judge may grant permission to intervene in a Reference and impose conditions to ensure the Court receives submissions that fully illuminate the issues. Kirker J. explained that intervenors are generally allowed where the proposed intervenor is particularly affected by the outcome or can provide special expertise or insight. Additional factors to consider include whether intervener’s interests are adequately represented by the existing parties, and whether the intervention might cause delay or prejudice.

Enserva sought to provide submissions on how the amended IAA impacted the “boots on the ground” energy services, noting that its members’ activities could qualify as “designated projects,” constituting a direct and practical interest. Kirker J. found that Enserva offered unique, relevant expertise not fully addressed by other parties or intervenors. Accordingly, Kirker J. granted Enserva permission to intervene, allowing a factum and a time-limited oral argument, subject to the panel’s discretion.

The Institute, an independent non-profit with expertise in constitutional governance and public policy, sought to address the constitutional and practical consequences of the amended IAA. Canada argued that the Institute’s submissions were overly broad and duplicative. Justice Kirker agreed, noting that the relevant legal and constitutional issues were already being addressed by the Canadian Constitution Foundation and other intervenors. As such, Kirker J. dismissed the Institute’s Application, but noted they may assist other intervenors if invited.

Lastly, Kirker J. considered Cold Lake First Nations’ (“Cold Lake”) Application to supplement the record. The Court highlighted that under Rule 14.58(3), intervenors generally must accept the record as it exists and may not introduce new evidence or raise new issues. While acknowledging that unique circumstances exist in the context of a Reference since there is no trial record, Kirker J. confirmed that the principle still applies.

Cold Lake sought to supplement the record with two Affidavits and a letter from several First Nations Chiefs regarding the Pathways Alliance project. Cold Lake argued that these materials would provide a distinct perspective on Alberta’s environmental regulatory processes, land use planning, Crown consultation, and illustrate concerns with environmental review process and federal project designation under the IAA. Alberta opposed Cold Lake’s Application, contending that the proposed evidence went beyond the Reference’s scope.

While noting that Alberta could not artificially restrict legal arguments by limiting the record, Kirker J. confirmed that clear boundaries on the factual and legal issues raised in the Reference were required. Justice Kirker determined that the proposed evidence raised issues beyond the Reference’s scope, included inadmissible hearsay and opinion material, and could cause collateral issues and delay. Accordingly, Kirker J. dismissed Cold Lake’s Application to expand the record.