Bill C-69, put forth by Canada’s Minister of Environment and Climate change last February, has been approved by the House of Commons and is now in debate at the Senate. The bill is designed to overhaul Canada’s process for approving energy projects and will simultaneously replace the National Energy Board with the Canadian Energy Regulator and completely reform the Federal Environmental Assessment Act, to be called the Impact Assessment Act. The Canadian Environmental Assessment Agency will also be replaced by the Impact Assessment Agency of Canada. Bill C-69 has been widely criticized by the energy and mining sectors, as well as many Indigenous groups, for its failure to clearly outline the processes needed to accomplish its goals.
According to Government of Canada, Bill C-69 was designed to “put in place better rules to protect our environment, fish and waterways, respect Indigenous rights and rebuild public trust in how decisions about resource development are made.” The Government claims that “with these better rules, Canadians, companies, and investors can be confident that good projects would be built in a way that protects our environment while creating jobs and growing our economy.” While these are noble ambitions, Bill C-69 not only misses the point, but its legislation is at best vague and at worst a death sentence for the future of energy projects in Canada. It will continue to push future investment dollars to countries with worse social, environmental, and human rights standards than Canada, ultimately contradicting Trudeau’s broader agenda.
5 Areas of Uncertainty
Sustainability: defined in the bill as “the ability to protect the environment, contribute to the social and economic well-being of the people of Canada and preserve their health in a manner that benefits present and future generations.”
As the Globe and Mail points out, the emphasis of the bill is placed almost entirely on negative environmental impacts of a project and the need for consultation with Indigenous groups. Little to no mention is made of potential economic benefits, including things like job creation, project investment, and the growth of provincial economies. Furthermore, the many negative impacts listed are seemingly arbitrary, such as the ability of the government to “meet its environmental obligations in respect to climate change” and “the intersection of sex and gender with other identity factors.”
Consultation of Indigenous Peoples: The bill seems to impose legislation mandating the consultation of Indigenous groups without having consulted the governing bodies of the Indigenous groups impacted. At a recent meeting of the National Coalition of Chiefs (NCC) in Richmond, BC, NCC leaders signed two resolutions opposing Bill C-48 (the tanker ban on the West Coast that effectively killed Northern Gateway) and Bill C-69, with NCC member Bruce Dumont stating, “We fully support responsible resource development and pipelines…The Indigenous people here today look at resource development in a positive way. We need to think of the environment, but the people also need to be a business partner.”
Discretionary Powers: Bill C-69 gives the Minister of Environment and Climate Change broad discretionary powers, further increasing uncertainty for major infrastructure projects. The greatest concern this poses, especially given the negative context of the bill and its focus on negative impacts as well as discretion being held by the Minister of Environment instead of the Minister of Natural Resources, is that political considerations instead of science- and rule-based processes will determine which projects go ahead. According to PR Associates, “The new Act grants the new Agency and the responsible minister much more discretion including a federal veto which gives the minister the power, before an assessment even commences, to make an order directing the new Agency not to conduct an assessment if the minister believes the proposed project would cause unacceptable effects.”
Timelines: while the legislation promises shorter timeframes and an easier process, timelines shrinking is effectively wishful thinking. With more groups allowed into the consultation process, minister vetoes, and vague language opening the process to more legal challenges timelines for Canada energy projects will continue to vastly exceed the approvals necessary to build major projects. What Canada’s regulatory system needs is to be streamlined, with clear language, policy and enforcement. While our country’s government dallies and our energy sector shrinks, our largest customers and competitors continue to develop their resource bases, happy to cut Canada out.
Global Competitiveness: Canadian energy needs more customers and therefore more infrastructure. Most people familiar with our energy industry would agree that the reliance on, and subsidization of, US markets is the largest barrier to a robust, economically-viable industry. With information from GlobalData, oilprice.com says that, “the US will be leading the capital expenditure (capex) on oil and gas pipelines, with an estimated US$88.4 billion on new pipelines by 2022, while Russia is seen spending US$78.8 billion. … In the United States, spending on natural gas pipelines will account for around 40 per cent of the total planned pipelines by 2022, with crude oil and natural gas liquids (NGL) expected to have 31 per cent and 24 per cent shares of expenditure, respectively.” Canada has lost its competitive edge in the energy industry due to poor enforcement of our existing rules, lack of government support, and inability of our leaders to promote both a robust industry as well as environmental stewardship. These should not be mutually-exclusive goals.
Back to the Drawing Board
Canada West Foundation’s article “Unstuck: Recommendations for Reforming Canada’s Regulatory Process for Energy Projects” outlines some key points for change for a regulatory system that encourages economic development, supports responsible development of our energy resources, and is clear, transparent and fair:
Four Main Pillars
Clear policy
Clear legislation
An empowered and trusted legislator
Appropriate broad, but efficient, stakeholder Input:
Bring back into the bill the concept of “standing,” establishing the priority of those groups or entities more directly impacted and consolidating similar messages.
Ensure that the consultation and hearing processes are fair, transparent and inclusive.
Make it clear to participants that being heard does not necessarily mean that the decision will reflect their own preferences.
Create a Public Intervener Office with the responsibility to synthesize the interests and views of various parties who wish to comment on the application or the regulatory process itself, to manage stakeholder input in a way that is both fair and respectful.
Canada West also states that our processes and policies need to, among other items:
Focus on the positive as well as the negative effects to inform balanced discussion
Increase time frame certainty
The Senate Committee for Energy, the Environment and Natural Resource met with the the Minister of Environment on November 6, and the bill is still in debate at the Senate level. For a daily recap of Senate debate, visit Senate of Canada.
If you are opposed to Bill C-69, please contact our Senate today to let them know how you feel.
Bill C-69 may not need to be entirely killed, but only if the Senate can make the vast and necessary changes needed to save it.