EcoLog,  3/8/2019


Bill C-69 faces election deadline

by Mark Sabourin

The Standing Senate Committee on Energy, the Environment and Natural Resources is taking Bill C-69 on the road, a decision that may compromise Parliament’s ability to pass the government’s new impact assessment law ahead of the October 2019 general election.

After hearing several days of highly critical testimony from industry and provincial government representatives, punctuated by a star turn from Alberta Premier Rachel Notley, the Standing Senate Committee agreed to a nine-city tour. A steering committee will determine cities and dates, which means the Standing Senate Committee is unlikely to hit the road before the Senate returns from its March break on March 18, 2019. After that, the Senate will have only 11 sitting weeks left on its calendar before it breaks for the summer and Parliament is dissolved. If the Bill hasn’t passed by then, it dies.

Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts has had a bumpy ride since its introduction on February 8, 2018.

It was heralded as the long-sought fix of the federal environmental assessment process, promising a single assessment agency that would examine all impacts of a project in one go. Early engagement would be mandatory, which would ensure that the assessment addressed all relevant concerns. The assessment would proceed under firm timelines, providing proponents with regulatory certainty. The process would be thorough and objective, reducing the likelihood of subsequent litigation.

When the Bill was introduced, federal Environment and Climate Change Minister Catherine McKenna said: “Canada just upped its game today. These federal rules will ensure that we attract investment.”

But in testimony before the Standing Senate Committee on February 19, 2019, Tim McMillan, president and chief executive officer of the Canadian Association of Petroleum Producers, said: “We’re hearing from international investors that Bill C-69 in its current form would make Canada a place that is increasingly uninteresting at a time when the investments in oil and gas around the world are increasing dramatically. We’re missing out on that opportunity.”

Several witnesses argued that litigation would only increase under Bill C-69. According to Notley, it introduces new terms, each of which will be subject to interpretation and court challenge.

As to fixed timelines and regulatory certainty, McMillan said Bill C-69 provides neither.

“Our read of the bill in its current form is that it is more complex, doesn’t give the clarity for people who want to bring good projects forward and has legal vulnerabilities embedded in the bill. If past experience is to play out, we would expect that those who want to disrupt the Canadian economy will use the legal vulnerabilities to stall, delay and ultimately kill projects in Canada,” said McMillan.

The Bill was extensively amended in the House of Commons, and the federal government has assured critics that remaining ambiguities will be made clear in regulations. That is cold comfort to McMillan.

“It has been our belief and our experience that flawed legislation can’t be fixed by regulation,” he told the committee. Notley concurred during her testimony.

“There’s a lot of ‘trust us’ in the current construction of the Act,” she said, and that’s no way to draw investment.

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