The Infamous para 142 [140] I turn now to the scheme’s first overarching problem.
(a) The Defined Federal Effects Do Not Drive the Scheme’s Decision-Making Functions
(i) Designation of Physical Activities as “Designated Projects”
[141] The designation mechanism brings certain physical activities within the scheme’s ambit. Alberta asserts that the designation mechanism is overbroad in two related ways. First, Alberta raises the concern that the Regulations do not draw a distinction between federal and local projects and, accordingly, “include several physical activities with no obvious ties to federal jurisdiction” (R.F., at para. 59). Second, Alberta submits that there are “no thresholds or criteria . . . with respect to the physical activities that the Governor in Council may designate in the Regulations” (para. 56).
[142] Alberta’s concerns about the scheme’s designation mechanism are, with respect, misplaced. The fact that a project involves activities primarily regulated by the provincial legislatures does not create an enclave of exclusivity. Even a “provincial” project may cause effects in respect of which the federal government can properly legislate. Accordingly, the inclusion in the Regulations of some “provincial” projects — in the sense that they involve activities primarily regulated by the provinces — is not itself problematic.
[143] Furthermore, the jurisprudence and academic literature make plain that a low threshold for the application of an impact assessment scheme is a practical necessity. In Oldman River, this Court described environmental assessment as a “planning tool” that offers “an objective basis for granting or denying approval for a proposed development” (p. 71). As a planning tool, impact assessment is necessarily prospective and launches from a point of informational uncertainty (Expert Panel, at pp. 18-19; J. MacLean, M. Doelle and C. Tollefson, “Polyjural and Polycentric Sustainability Assessment: A Once-in-a-Generation Law Reform Opportunity” (2016), 30 J.E.L.P. 35, at p. 43).