THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
OTTAWA, Thursday, May 2, 2019
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred 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, met this day at 8 a.m. to give consideration to the bill.
Senator Rosa Galvez (Chair) in the chair.
The Chair: Good morning and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
My name is Rosa Galvez. I’m an independent senator from Quebec, and I’m the chair of this committee. I will now ask my colleagues around the table to introduce themselves.
Senator Woo: Premier, welcome. I’m Yuen Pau Woo, from British Columbia.
Senator Cordy: Welcome, premier, and congratulations on your election. I’m Jane Cordy, a senator from Nova Scotia.
Senator Mitchell: Premier, welcome, and congratulations on your election. Minister, welcome to you, too. I’m Grant Mitchell from Alberta and the Territory of Treaty 6.
Senator Dalphond: Good morning, Premier. Welcome. Pierre Dalphond, independent senator from Quebec.
Senator Massicotte: Welcome. Paul Massicotte from the Belle Province.
Senator Frum: Good morning, Premier Kenney. I’m Linda Frum, from Ontario.
Senator Simons: I get the pleasure of seeing you twice in once week. Paula Simons, still from Alberta, still from Treaty 6 territory.
Senator McCoy: Elaine McCoy. It’s a pleasure to see you both here. Well done. Of course, we’re from the most beautiful province.
Senator D. Black: Premier, minister, I’m Doug Black, Alberta.
Senator Richards: Dave Richards, from New Brunswick.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, God’s country, Alberta. Good morning.
Senator Eaton: Nicky Eaton, Ontario. Lovely to see you again.
Senator Seidman: Good to see you, minister and premier. Congratulations on your election. I’m Judith Seidman, from Montreal, Quebec.
Senator Carignan: Good morning, Premier. Claude Carignan from Quebec.
Senator Mockler: Percy Mockler, from New Brunswick.
Senator Patterson: Good to see you. Dennis Patterson, Territory of Nunavut.
The Chair: Thank you very much.
I want to take this opportunity to thank the Library of Parliament analysts, Sam Banks and Jesse Good, and the clerk of the committee, Maxime Fortin.
Colleagues, this morning we are continuing our study of 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.
Today, we welcome, from the Government of Alberta, the Honourable Jason Kenney, Premier of Alberta; and the Honourable Sonya Savage, Minister of Energy. Thank you for joining us, and congratulations on your appointments. I invite you to proceed with your opening statement, after which we will proceed with the question and answer period. Thank you very much.
Honourable Jason Kenney, P.C., Premier of Alberta, Government of Alberta: Thank you very much, Madam Chair and Honourable Senators.
I’m very pleased to be here to deliver important testimony on behalf of the population of Alberta. I am accompanied by my colleague Minister Savage.
Minister Savage, our Minister of Energy, happens to be an expert on the matters you are discussing in Bill C-69, and I look forward to her participation in this testimony.
Madam Chairman, this bill, if passed in anything like its current form, will, in the submission of the Alberta government, be a disaster for the Canadian economy and will seriously rupture national unity.
If it passes in anything like its current form, the Government of Alberta will launch an immediate constitutional challenge of Bill C-69 as an obvious and flagrant violation of our exclusive constitutional jurisdiction to regulate the production of our natural resources, a power that was won by Premier Peter Lougheed in 1981 in the constitutional convention held in this building, without which Alberta never would have signed its consent to the patriation of the Constitution in 1982. Alberta’s consent in the Constitution Act was predicated on its obtaining exclusive constitutional jurisdiction in section 92(a) for the regulation of the production of natural resources, and specifically of oil and gas. The bill before you proposes, in a flagrant way, to violate that exclusive power, which was a condition precedent of Alberta’s consent to the Constitution Act.
Madam Chair, recent polling indicates that as many as 50 per cent of Albertans indicate that they support the concept of secession from the Canadian federation. I and our government are dedicated to national unity. I am here to convey to you and your fellow senators that there is a growing crisis of national unity in Alberta, which would be exacerbated by the adoption of this bill and other policies like the proposed tanker ban in Bill C-48.
In Alberta, this is known as the “no more pipelines act,” precisely at a moment that we are living through a period of prolonged economic decline and stagnation in Alberta, in large measure because of our inability to get Alberta’s and Canada’s natural resources to global markets. This has caused enormous economic suffering in Alberta among nearly 200,000 unemployed people and tens of thousands who have left the labour market and given up looking for work, and tens of thousands who have left our province, many of whom moved to Alberta from provinces in eastern and central Canada to participate in our resource industry but no longer have employment. Incomes are down in Alberta by more than 6 per cent in the past four years, so many families are struggling to get by.
All of this, in part, is because many Canadian leaders have apparently decided to surrender growing global energy markets to some of the world’s worst regimes, such as the OPEC dictatorships, Russia and the United States, which has doubled its energy production in the past decade while U.S. foundations have funded a campaign to land-lock Canadian energy, a campaign that funded organizations that have called for and support this bill precisely because they see it as another tool in land-locking Canadian energy.
I note, Madam Chair, that the very same organizations who endorsed this bill and opposed the Northern Gateway Pipeline, who opposed the Energy East pipeline, who opposed the Keystone XL pipeline and who opposed the Trans Mountain pipeline, and who want to make sure that this bill prevents any other major pipeline project from being proposed, have done nothing to stop the doubling of U.S. oil production, the massive expansion of the oil pipeline system in the United States or a 10 per cent increase in the production of oil around the world in the past decade alone. They have focused, in Bill C-48 and in their campaign of obstruction, exclusively on bottlenecking Canadian energy.
I think it’s incumbent upon you, as members of Canada’s upper chamber, to ask why these organizations are so committed to undermining the vital economic interests of this country, while doing nothing to reduce or diminish growing global demand and production for oil. I think the answer is simple. It is because we as Canadians — and our political leadership — have invited this campaign of obstruction and aggression through weakness because we have political leadership willing to introduce legislation such as this.
That is why our government, which was sworn in two days ago, is launching a strategy to stand up for Alberta. No longer will the people of Alberta quietly accept policies such as this, which constitute a direct attack on our vital economic interests. We Albertans are proud of what we do. We are proud to have the third-largest reserves of recoverable oil in the world and the fourth-largest reserves of natural gas. We are proud to produce those resources at the world’s highest environmental, human rights and labour standards. We are proud of the remarkable innovation and the massive investments made by our energy companies in constantly shrinking the environmental footprint and the carbon intensity of Alberta energy. We are proud conservationists.
As the senator said, it is the most beautiful province. We are proud of our natural environment and we want to protect it. Albertans of all political parties want to do that. We feel this bill, insofar as the energy industry is concerned, is not about protecting the environment, but presents a total lack of the essential balance between protecting the environment and economic growth.
Madam Chair, this bill completely misses the balance that we all know we need between environmental protection and economic development. That is why this bill is opposed across the political spectrum in Alberta and, I believe, has growing opposition across Canada.
You heard recently from my distinguished predecessor, former Premier Notley, who spoke eloquently about Alberta’s opposition to this bill. I endorse the words that she presented to this committee. However, I want to be very clear. We are not simply here to say that this bill needs amendment. In our view, if this bill continues in anything like its current form, it is unacceptable.
The Government of Alberta has submitted a series of amendments, which our government endorses, amendments that are essential to the protection of provincial jurisdiction, in part the respect for section 92(a) of the Constitution Act. We also endorse the amendments brought forward by the Canadian Energy Pipeline Association and the Canadian Association of Petroleum Producers. In our view, these amendments must together form a package to do anything remotely like saving this bill so that it does not create an even deeper crisis in investor confidence.
Madam Chair, one of the reasons for the prolonged economic adversity in my province is the flight of tens of billions of dollars of capital, primarily from our oil and gas sector, capital that has fled and taken with it jobs and equipment from the Canadian oil and gas industry to primarily the American oil and gas industry. This money has not left the production of energy. It has simply left the employment of Canadians, once again highlighting the futile hypocrisy of those seeking to bottleneck Canadian energy.
In my province, while we suffer from 7 per cent unemployment, which I think masks the real numbers, the energy-producing states south of the border benefit from 2 to 3 per cent unemployment — Texas, Oklahoma, Colorado and North Dakota. While there has been a massive decline in oil and gas investment in Canada, there has been a massive concomitant increase of over 5 per cent in the United States over the past four years.
This is not about global prices. This is about a policy environment that is further damaged by the uncertainty created by Bill C-69.
Madam Chair, the C.D. Howe Institute in 2018 estimated that 36 projects worth $77 billion alone were cancelled in Canada. In 2018, it was the worst year for Canadian oil and gas financing in two decades. Over the past decade, the annual return on Canada’s oil and gas equities has been a negative 0.5 per cent, and they constituted the biggest share of the Toronto Stock Exchange, versus a positive 5.5 per cent growth for oil and gas equity.
I ask anybody, Madam Chair, who thinks that there is some virtue in further strangling the industry that has been a key engine of Canadian prosperity to account for the fact that all they have done is to ship capital, jobs and energy production to another jurisdiction — a jurisdiction that does not have carbon taxes, has lower environmental regulations, a much easier time of building pipelines and a jurisdiction that has gone from being a significant importer of Canadian energy to a net exporter of their own energy.
In 1980, Premier Peter Lougheed described the national energy program as “The Ottawa government — without negotiation and without agreement — simply walked into our homes and occupying the living room.” That is exactly how I would describe Bill C-69.
In its current form, the bill goes beyond federal jurisdiction by giving a new agency authority over provincial projects, such as oil sand management projects and petrochemical refineries that are located within the borders of a province, and are already subject to provincial regulation.
I would like to stress to this committee and to the federal government that the threat posed by Bill C-69 cannot be dismissed as a uniquely Alberta issue. Yes, I am here to represent my province. I am also standing up, I believe, for the interest of Canada’s national economy. When Alberta’s energy sector suffers, it cascades through the whole economy, as recent statistics yet again demonstrated sluggish growth in the Canadian economy, precisely because of what is happening in our energy industry. A study from the University of Calgary School of Public Policy estimates recently that pipeline capacity constraints are costing Canadians some $14 billion a year in lost revenue, with about $7.2 billion forfeited from provincial royalties and other taxes, $5 billion lost by industry and the rest being lost at the federal level.
But don’t just take my word for how devastating Bill C-69 would be for Canada. Listen to the people who decide every day whether or not to invest in our country and create jobs here.
The Total enterprise, a French oil company, said this about Bill C-69, and I quote:
[... it] may make it less likely that we decide to invest in energy projects or to make commitments related to pipeline capacity in Canada.
Other major global and Canadian energy companies have echoed this and are threatening to vote with their feet. Every energy industry association has been lining up at this committee to show how the expanded scope of assessment, unlimited interventions and endless opportunities to extend timelines will make investor uncertainty even greater where it already is in a crisis situation.
Equally worrisome is who you are not hearing from. It’s impossible to calculate the value of projects that investors aren’t bothering to propose. Foreign investors are saying they cannot be bothered to spend the time figuring out a country that cannot resolve its internal differences. They are not going to waste good money on pointless, protracted regulatory exercises that would now be further lengthened by this bill.
Madam Chair, it is simply baffling to Albertans and to most Canadians who understand the facts that we as a country would inflict this punishment on ourselves. The Canadian oil and gas industry has the most highly regulated, cleanest, fairest and most inclusive resource management regime on the face of the planet. The bill includes a mandate for a gender assessment of these projects. There is no energy industry in the world that employs more women than the Canadian energy industry. There is no province that has a higher level of employment and incomes for Aboriginal people than the province of Alberta. Why? It is primarily because of this industry. This industry has been a tool of social progress, Madam Chair. Tens of thousands of Canadians who were living in despondent dependency and unemployment moved to Alberta because of the industry attacked by this bill.
If your interest is in social progress, then why would we create yet further uncertainty and damage for an industry that has been one of the greatest engines of social progress? If your industry is growing the middle class and making it easier for people to join it, then why would you do further damage through this bill to the industry that has been the greatest engine of middle-class growth in the modern Canadian economy? This is inexplicable to us.
This bill delivers the exact opposite of what the Liberal Party promised in its 2015 platform, which stated that we will end “the practice of having federal ministers interfere in the environmental assessment process.” The bill, as now drafted, does the exact opposite. There will be more political interference than ever before under CEA. Despite the promise of approval timelines, Bill C-69 has more than earned the name the “no-more-pipelines act.” It provides repeated opportunities for the minister to intervene and pause the process. It creates a regime that limits the information taken into account in decision-making and raises serious questions about natural justice and procedural fairness.
As I said, Alberta is not alone in raising these concerns.
I know my time is limited so let me focus on what is really the essential issue for us. As I outlined in my letter to this committee on April 9, such a broad review in decision-making process that is included in this bill flies clearly in the face of section 92.10 of the Constitution Act, which speaks to projects or activities that constitute local works or undertakings. These are projects involved in the exploration of natural resources and sites and facilities in the province for electrical production, all of which fall within exclusive provincial jurisdiction under the Constitution. This bill, as written, would give the federal government final say on the construction and operation of these kinds of provincial projects, based on factors unrelated to any legitimate federal jurisdiction.
This is directly contrary to the Supreme Court of Canada’s 1992 the Friends of the Oldman River Society decision. The Supreme Court ruled that the federal environmental assessment:
. . . can only affect matters that are “truly in relation to an institution or activity that is otherwise within [federal] legislative jurisdiction” . . .
With no limitations spelled out in Bill C-69 as to the scope of federal assessments and approval, this bill disregards the delicate and important constitutional balance between federal and provincial powers. This is particularly galling as it violates subsection 92(a) of the Constitution, which I mentioned before. That was a condition precedent of Alberta’s signature on the Constitution Act.
The federal government released yesterday its proposed criteria for projects under this bill. It purports, among other things, to regulate the development of in situ oil sites in Alberta. These are exclusively within Alberta territory. They relate to the production of natural resources. There is no rational person who could see, under subsection 92(a), a federal interest to regulate that. It would be a blatant violation of the Constitution. The federal government is asking you to violate the Constitution of Canada in adopting this bill. That’s why, should this proceed in its current form, we will see the federal government in court and have a very high level of confidence about prevailing there.
If this committee decides to proceed with the bill, I ask that it be substantially rewritten to respect our exclusive provincial jurisdiction. That means that the amendment packages, as I mentioned, proposed by CAPP, CEPA and the previous Alberta government, in our judgment, must be adopted in their entirety, with no exceptions. This bill does not need a nip and tuck; it needs complete reconstructive surgery, or it needs to be put out of its misery.
Madam Chair, thank you for your time. Minister Savage and I are happy to take any questions you may have.
The Chair: Thank you so much. We will go to questions now, starting with Senator Cordy who is a member of the steering committee.
Senator Cordy: In light of the limited time — we only have about half an hour left — and the number of Albertans around the table, I’ll give up my time so that those from Alberta can have more time for questions.
The Chair: Thank you for that. We’ll continue with senators from Alberta, if that’s agreed.
Senator Pratte: Agreed.
Senator Simons: Mr. Premier, like you, I received a copy of the project list yesterday. I was intrigued to see that it covers in situ production, which, as you mentioned, Premier Notley, who came before you, also had very strong feelings about. It does, however, have a proviso that says that the in situ would be exempted if there were a legislated hard cap on greenhouse gas emissions. I wondered how you felt about that as a proviso.
Mr. Kenney: I think that proviso does nothing to mitigate the clear violation of subsection 92(a) of the Constitution. It’s beyond presumptuous of the federal government to lay down conditions for whether it violates the Constitution.
I would further emphasize that there is a statutory limit on CO2 emissions in the Alberta oil sands of 100 megatonnes, which was adopted by the last Alberta legislature. My government has no intention of changing that.
To be clear, we do believe that it makes no sense that only Canada, among the major energy producers, would cap its production and potential prosperity. We don’t see the United States, Russia, Venezuela, Iran, Saudi Arabia, Qatar or any other country doing the same thing. We think it’s frankly pointless in terms of global greenhouse gas emissions, and it prejudicially hurts Canada’s long-term interests. But we are not close to hitting that cap right now. Quite frankly, our government has a lot of other irons in the fire, including this bill, Bill C-48, the Trans Mountain pipeline and many other issues. For us, at this time, that is not an active issue.
Senator Simons: The federal government has long-standing jurisdiction over things like interprovincial pipelines and interprovincial power lines and things that affect migratory birds or navigable waterways. Are there things other than the in situ that you feel are specifically an abridgment of subsection 92(a)?
Hon. Sonya Savage, Minister of Energy, Government of Alberta: It is important here to distinguish clearly between what is federal jurisdiction and what is provincial jurisdiction. The project list published yesterday, the discussion paper, really muddies the waters. It expands the project list that was in CEA 2012.
Our position is that if it is in provincial jurisdiction, we don’t need to be talking about thresholds and factors that would make it subject to federal assessment. If it’s provincial jurisdiction, the federal government should just get out of it and let Alberta regulate. Alberta is in the best position to assess and regulate those projects.
Senator LaBoucane-Benson: Premier Kenney, you answered my questions on jurisdiction very well, but I do have a question for Minister Savage.
I know you have probably studied this bill, probably forensically. You have a lot of experience in this. Regarding pipelines, I know you worked for Enbridge. What are your top two amendments? If you were going to instruct this committee, what would you like to see changed?
Ms. Savage: To start with, we need to distinguish between the amendments that project proponents and industry associations have put forward and the amendments the province has put forward. Our amendments are focused fairly significantly on jurisdictional issues — on making sure the federal government does not intrude into provincial jurisdiction. The industry associations and industry have put forward regulations that make a project review workable. For us, obviously, as a province, our number one amendments are to clearly distinguish between federal and provincial jurisdiction and to keep the federal assessment out of our projects.
But from another perspective, when you look at the legislation overall, from a technical level on why it doesn’t work, everyone started out looking for a review process that was going to be independent of the government and that was going to be conducted by a tribunal, agency or regulator based on science, fact and evidence that was an arm’s length from the government. What Bill C-69 gives is a political review of the project, from start to end, with opportunities and points for political interference by the minister right from the get-go of what projects would be reviewed from timelines, to scope of factors, to the political decision at the end. You just cannot reconcile that vision and process with an independent arm’s -length process.
Senator LaBoucane-Benson: We are definitely working on ministerial discretion on this bill.
What are your opinions on the regional assessments in this bill, the capacity to do the cumulative effects regional assessment pieces?
Ms. Savage: The regional assessments are important, but one of the concerns, first and foremost, is that projects will be held up while those regional assessments are being undertaken. Those assessments take a very long time, and we cannot hold up projects while those assessments are under way.
Senator Carignan: Premier, I was pleased to hear your statement, because it broached the topic of the questions I want to ask you about constitutional jurisdiction. The position you expressed is exactly the same as that of the Quebec government, and you quoted the same Supreme Court decision with regard to provincial areas of jurisdiction.
When I saw the list of designated projects, which we received quite late yesterday—I read it during the night—I saw that you were quite right, this really is an intrusion into the provincial field of jurisdiction. The bill even includes quarries and sandpits. It seems quite obvious to me that it represents a constitutional violation.
I want to raise another topic, and that is the energy corridor. I have raised this in several places—you know that the committee has gone all over Canada—and it seems to me that the bill should include a mechanism to create an energy corridor to give us the possibility of targeting locations in Canada, from east to west, where a complete assessment could be done; this could, for instance, be a 500-metre-wide strip, east to west. The idea would be to develop means of transport in that zone for energy sources, whether we are talking about gas, oil or hydroelectric lines, to create that link. Something similar was done with the Trans-Canada Highway and for bicycles, but not for energy. It seems like a logical idea to me. What do you think?
Mr. Kenney: I totally agree that this would be a logical idea, particularly to develop energy and resources, especially in northern Canada. That is why my party included this idea in its electoral platform.
Senator Carignan: I did not see your platform.
Mr. Kenney: Our platform was approved by 50 per cent of Albertan electors two weeks ago.
In addition, I have already raised this issue with certain provincial counterparts, and I am anxious for the opportunity to put the dossier on the agenda of the Council of the Federation meeting in July. There is an enormous amount of interest for this project on the part of Ontario, Manitoba, Saskatchewan and New Brunswick, and, I hope, Quebec as well.
Senator Eaton: Under Bill C-69, Mr. Premier, the standing test has been removed so that people can be granted standing at a regulatory hearing even if they are not directly impacted by the project. Years ago, I did an inquiry in the Senate, and I remember Senator Mitchell spoke at that inquiry, about environmental groups being funded by foreign foundations and entities. Do you have a strategy for that? Because money is still pouring into this country. We had a witness the last time I sat at this committee from MiningWatch, which is funded by the Ford Foundation, interestingly enough.
Mr. Kenney: Thank you, senator. I alluded to this in my opening remarks. The platform on which we were recently elected with 55 per cent of the popular vote had, as a key element, a strategy to fight back against the malignant influence of foreign-funded special interests in the highly successful campaign to land lock Canadian energy.
As you likely know, in 2008, the Rockefeller Brothers Fund hosted a conference with a consortium of interest groups that developed a long-term strategy to prevent the construction of pipelines to essentially bottleneck and strangle the Canadian energy interests, more particularly the oil sands.
I find it interesting that a number of prominent members of the current government, including the chief of staff to the Minister of Environment, who worked for several years at the Pembina Institute — that organization, under his watch, received substantial funding from donors —
Senator Eaton: From REMCO.
Mr. Kenney: — who are members of, partners in, the so-called Tar Sands Campaign, as was the former principal secretary to the Prime Minister, a strong advocate of this bill who worked at the World Wildlife Fund, which received funds from the same U.S. foundations that are members of the so-called Tar Sands Campaign, as are other prominent members of the government.
These are the same individuals who campaigned against Northern Gateway and secured its immediate veto, contrary to the approval of the National Energy Board in the previous cabinet, immediately following the last election.
This is the same government, informed by the same people and the same interest groups, which surrendered, without a word of protest, to President Obama’s veto of the Keystone XL pipeline three days after the current Canadian government took office.
This is the same government that strangled Energy East after Trans-Canada had spent over $1 billion in six years investing in it through the imposition of regulatory mandates, which the federal government now seeks to enshrine in this legislation.
This is the same campaign of obstruction that succeeded in driving Kinder Morgan out of this country, leaving us, as taxpayers, holding the bag.
Yes, we do have a strategy. We will be launching a public inquiry into the foreign sources of funds behind the anti-Canadian energy campaign. We will be challenging, where we believe there are grounds to do so, the charitable status of some of these organizations that have been funnelling foreign money into our politics. We will adopt a bill banning foreign money from Alberta politics, and we endorse Senator Frum’s bill in the Senate in this respect. We will be removing any Alberta government funding from organizations that have participated in this campaign, and we will be pursuing a number of other steps.
These organizations have the right to speak their minds, but we will hold them to account when they lie and defame our energy industry. We will tell the truth about it aggressively.
Senator Frum: Thank you for the shout-out for my private member’s bill, which unfortunately is one of the bills that has been stalled in the Senate, I’m sorry to say.
We have heard in this committee from a great number of witnesses who have warned about the serious implications of Bill C-69 — you being the most eloquent among them — but, to date, these arguments do not seem to have penetrated the thinking of the federal government. Why do you think that is, and can you elaborate on what you think the threat to national unity would be if this bill is passed?
Mr. Kenney: Thank you.
On the first question, senator, I really have a hard time grasping the rationale of this bill, given the gravity of the concerns that have been expressed. You all know, as senators, that there is growing anxiety about the crisis of confidence of the international investment community in Canada. That is one of the reasons for relatively anaemic economic growth. This bill would make it worse, not just with oil and gas but with other industries, precisely because of the uncertainty that it implies.
On the second question, let’s play a mental exercise. Imagine we were in a moment in our history where there was something like 50 per cent support in public opinion polls for Quebec succession from the federation. Can you imagine, under such circumstances, a federal government bringing forward a bill that constituted a direct and obvious intrusion into exclusive provincial jurisdiction and that would have the clear effect of undermining Quebec’s largest industry and largest employer? I submit that that would be unthinkable and that no responsible federal government would proceed with such a measure. That was a message I conveyed to Prime Minister Trudeau in a phone conversation two weeks ago.
I’ve been around the federal cabinet table, and I can tell you that prime ministers’ federal cabinets are quite rightly constantly anxious about the preservation of national unity, and every perceived slight by the government of Quebec is weighted, measured and carefully considered. This is not just a slight to the people of Alberta; this is the culmination of a full-frontal attack on our economic prosperity. This is why, shockingly, up to half of the people of Alberta in an Angus Reid poll recently — this is not some fly-by-night operation — said they support secession. I suspect a lot of them are blowing off steam and found that to be a way to express their frustration.
But your role as senators is to represent the regions in the Parliament of Canada. Thank goodness I know all of you are passionate federalists. The people of Alberta are proud Canadians — so proud that they are proud to have contributed over $600 billion to the rest of the federation since 1957, according to Professor Robert Mansell, through the system of fiscal federalism. They don’t begrudge their neighbours in the federation the support that they are able to provide through the development of their resources, but they ask for the right and the ability to develop those resources. If this bill proceeds, together with Bill C-48, it will be a message to the people of Alberta that their federal government doesn’t care about a devastating period of economic adversity in our province and that it is so careless about it that it is prepared to violate exclusive provincial jurisdiction. I plead with you, as federalists, to understand the national unity implications of this.
That’s why I have said, to be clear, that if this bill proceeds in its current form, and if we can’t get at least one coastal pipeline, we will take the extraordinary measure of triggering the Quebec secession reference of the Supreme Court from 1998 to hold a constitutional referendum on section 36 of the Constitution, which is equalization. We don’t oppose equalization, but we oppose equalization if we cannot develop the resources that pay for it.
Senator Massicotte: Thank you, premier, for being with us this morning.
Let me first assure you — and I think we can speak on behalf of nearly almost all of us here — we hear you loud and clear. We’ve heard many witnesses loud and clear. Our efforts are to try to find a balance, which is so necessary. It may not totally satisfy you, but our objective is to do what is right for Canada, including the Province of Alberta.
You talked about investors fleeing our country and fleeing Alberta, but investors nowadays, to a very launch majority, are very sensitive to where they invest, and they want to invest in situations that are deemed acceptable to society and to behave in a manner that is coherent with long-term interests, economically, environmentally and socially. When you made reference to the cap for in situ — and I read in the paper that you said the cap is so significantly high that it won’t affect you, so you have no problem maintaining it. But that may give an impression to some investors, including foreign investors, as saying the oil sands will be developed in a way that’s irresponsible. “Given the cap is so high, it is meaningless, and therefore the Province of Alberta and producers will be exploring all this without caring about the amount of CO2 or greenhouse gases.” Could you comment on that? Several years ago, I think the province became very sensitive to that image in the world. It’s destructive if people think otherwise. Could you reassure all of us that, regardless of the cap being insignificant or irrelevant, all of this will be done in a responsible way?
Mr. Kenney: Thank you, senator. I appreciate your comments.
First, I wouldn’t characterize it as insignificant or irrelevant. In the midterm, it may become relevant. It isn’t right now, so our focus is on more timely issues.
With respect to the relationship to investment, there is no other major oil and gas producer in the world that has proposed a cap on its production, and that has not forestalled investment in those other jurisdictions.
I will give you a very topical example. HSBC, which I think may be the world’s largest bank in terms of market cap, has announced that it will no longer provide financing to Alberta oil sands projects. Meanwhile, they just hosted a major investment conference in Riyadh, Saudi Arabia, a country in which they are a major financial investor in Saudi energy projects. There is no emissions cap in Saudi Arabia. HSBC, I understand, is one of the largest financiers of the heavy oil industry in Vladimir Putin’s corrupt, autocratically owned Russian energy industry. There is no cap in Russia.
What you have here, I believe, is nothing but empty virtue signalling.
I will just close by saying that we do respond to this concern. Our government does want to demonstrate that Albertans are environmentally sensitive and care about the challenge of climate change and emissions. That’s why we will be instituting a levy on major industrial emissions, including from the oil and gas sector, which incentivizes a constant reduction in carbon intensity. We will be introducing that initially at a $20-per-tonne price for major industrial emissions. We project that that will reduce by 47 megatonnes output in Alberta from the original baseline year. We will be open, as I indicated to the Prime Minister, to additional stringency in this respect.
Senator Woo: Thank you, premier. If you are keeping the cap, and there is lots of room given the current level of emissions, as a practical matter, in situ projects should not fall under the project list destination. Is that fair to say? As a practical matter, setting aside your legitimate concerns around provincial jurisdiction.
Mr. Kenney: As a practical matter, I don’t think there will ever be a federal environmental regulation of in situ projects because the courts won’t tolerate violation a prima facie violation of the Constitution.
Senator Woo: But based on the level of emissions today and the cap, which you are willing to maintain, is it correct to say that, for the foreseeable future, in situ projects will not be designated because they will fall under the cap that you are willing to maintain?
Mr. Kenney: You would have to ask the federal government. They’ve come up with these parameters. All I can say is that we believe the emissions cap doesn’t make sense because no other country is doing it. We don’t have any plans for any immediate changes. This matter will ultimately be litigated if this bill passes, and it will also be subject to political judgment in the upcoming federal election.
Senator Woo: You have confirmed, though, that the current level of emissions is significantly lower than the cap that is in place.
Mr. Kenney: It is currently.
Senator Woo: Thank you.
Do you recognize federal jurisdiction over GHG emissions and other pollutants that come from oil and gas and other industries?
Ms. Savage: In answer to some of the project list criteria that in situ would be exempted if there were an emissions cap, to start with, you can’t exempt something that you don’t have the right to regulate in the first place. That’s preposterous and should not be in there. That’s a flagrant violation of the Constitution. That’s why we find it so objectionable for the federal government to say they will exempt something that they don’t have the right to regulate.
Senator Woo: That’s my second question: Do you recognize federal jurisdiction over GHG emissions?
Ms. Savage: The Friends of the Oldman River Society decision set out some parameters on environment not being a delineated head of power in the Constitution, so there is some intricate constitutional law on who has the right to regulate environment.
Mr. Kenney: I would just add that, in part, is before the appeal courts of Saskatchewan and Ontario with respect to their carbon tax references.
Senator Seidman: Thank you for your position on this, premier. You’ve made mention, as has Minister Savage — and we have heard from witnesses coming from many sectors — that this bill creates uncertainty and a lack of transparency and is not based on science. The bill introduces policy issues into the project assessment process, and it politicizes the review process by allowing for ministerial decision-making, even at the end of a long and expensive review process. How would you deal with this aspect of the bill, especially given your own personal experience as a federal minister sitting at the cabinet table making decisions and now with your provincial perspective?
Mr. Kenney: Which aspect of the bill? Sorry, senator.
Senator Seidman: It is the aspect that introduces policy into the impact review process and then allows for ministerial decision-making, right up until the very end.
Mr. Kenney: That’s one of our primary objections to the bill. As I cited, the platform of the current federal government in the last election was to remove ministers from interfering in environmental reviews, and yet this bill inserts them more deeply into environmental reviews. In an effort, ostensibly, to depoliticize environmental review, it massively politicizes environmental review.
Senator, you asked about my experience in cabinet. I remember clearly when Northern Gateway was coming up from the National Energy Board, when it was in the final stages of review and prior to its submission to the federal cabinet for ratification. I hope I’m not violating any cabinet confidence here, but I think this is fairly obvious. We received very clear advice from the Department of Justice, which was emphasized by the Prime Minister of the day, that, as federal ministers, we should not do or say anything that would be seen as prejudicing us or expressing a prejudicial approach. We had to maintain an objective view of the evidence as a federal cabinet and not politicize that project. In fact, I’ve been criticized for not having done more tub-thumping about Northern Gateway at the time. The reason was we didn’t want to demonstrate any kind of a prejudicial attitude for or against it. Obviously, we were advocates of pipelines in general and in principle, but we understood the regulator had to be independent and this, I think, undermines that independence.
The Chair: Thank you very much. In the interest of time, we have three last questions.
Senator Dalphond: Thank you for being here, Premier.
In your presentation, you referred frequently to the proper balancing of economic development and protection of the environment, the need to have a competitive regulatory framework and the need to preserve provincial jurisdictions. I think I follow you all the way there, and I think that is what my colleagues are looking for in the ways to improve the bill and to take into consideration these concerns.
But I have not heard anything about other constitutional rights, such as the rights of the First Nations that are also protected under the constitution. What are you proposing? Many First Nations have appeared before this committee and other committees referring to the fact that they appreciate that Bill C-69 takes into consideration that they will be heard and that their interests will be taken into consideration. You’ve referred to delays in these projects, and many of these delays have resulted from court decisions preventing these decisions from going forward because First Nations interests were not properly considered.
Mr. Kenney: Thank you for raising that important question, senator. First, I would say that any statutory requirement to consult First Nations on environmental projects is, in a sense, redundant, because this is now a delineated constitutional obligation under current jurisprudence. The duty and honour of the Crown to engage in meaningful consultations with First Nations is non-negotiable, so I think it is implicit. This bill doesn’t add to that; it just reflects what is an existing constitutional obligation of the federal Crown.
Senator Dalphond: And the provincial Crowns, too.
Mr. Kenney: Yes, indeed. I would point out that while you have heard from some First Nations groups that are in favour of the bill, you have also heard from a number who are opposed to the bill. I do know that when you did hearings in Calgary three weeks ago, you heard from a number of those intervenors. My sense is that the pretty clear majority of First Nations communities in Alberta are at least concerned or, at most, strongly opposed to this bill.
As I’ve said before, for senators not familiar with Alberta, there are many First Nations that have become, quite frankly, wealthy — Maskwacis, Fort McKay and many others — by being business partners in the oil and gas industry. In fact, our government intends to create a new Crown corporation to be styled the “Alberta Opportunities Corporation” to provide financial backstopping to facilitate First Nations’ financial participation and ownership in major energy projects. We see as a moral cause the opportunity to raise Indigenous Canadians from poverty to prosperity by participating in projects for resources developed in the territories that these people have historically inhabited.
Yes, we absolutely respect the Crown’s duty to consult, but we also respect the economic rights of First Nations to participate in our economy. That’s why we will also be setting up a litigation fund to support pro-development First Nations who believe their economic rights have been violated by this federal government in its vetoing of Northern Gateway and its tanker ban, Bill C-48.
Senator Patterson: Thank you, premier, for commenting on the pernicious influence of foreign-funded opponents of oil and gas development in Canada, which was a question I was going to ask.
I would like to turn to the National Energy Board. You talked about the politicization of the regulatory process reflected in Bill C-69. You called it a political bill. One of the justifications for Bill C-69 was to restore public confidence in the regulatory process. The rationale was that the NEB had been discredited, and Bill C-69 diminishes the role of the NEB. Was the NEB an ineffective and discredited regulatory process?
Mr. Kenney: I don’t think it was perfect, but I also don’t think it was discredited. The NEB, headquartered in Calgary, has historically been considered a model regulator by other jurisdictions. When I was a federal minister travelling in parts of the world that were developing shale gas industries, they asked if they could get training and mentorship from the NEB on how to develop a regulatory framework. From my experience, it was considered a bit of a model around the world, although imperfect, admittedly.
Ms. Savage: During the course of the review that led up to Bill C-69, there was an NEB modernization panel that went around the country and took submissions. There was a lot of really good material that went into that. I think you can look at what happened over the last decade with the National Energy Board as these larger, linear pipeline projects went through the process. There were a lot of broader public policy decisions that the National Energy Board was forced to deal with, such as policy around climate change, energy policy, the mix of energy and Indigenous rights and reconciliation. The board was never prepared or equipped to deal with those, but there was no other place to deal with those policy issues, so the board had to deal with them. As a result of that, at the end of those processes, people who were opposed to pipelines were not satisfied and they blamed it on the regulatory process.
So I think it’s a bit unfair to say the NEB had a discredited process. I think they were simply not equipped to deal with the policy issues. By the way, Bill C-69 doubles down and makes it worse by forcing those policy issues to be dealt with in the process. We are making a bad situation doubly worse.
Senator Mockler: I also want to join my colleagues in congratulating Premier Kenney on his election and his unprecedented leadership. You have a lot of experience, both nationally and internationally.
Premier, I think we have an opportunity to ensure that Atlantic Canadians have a framework that can provide environmental sustainability along with economic progress, and Premier Higgs shared that with us this week here in Ottawa. Atlantic Canada wants its equal opportunity. I feel that across Canada there is a lot of anger and division. We all have a role to play. I like your approach when you say that it’s about national unity.
We have lost the can-do approach in every area of Canada. In Atlantic Canada, we have the biggest refinery in the country. There is something terribly wrong. We cannot access our natural resources coming from Western Canada. When I look at the Irving refinery, it is getting oil from foreign countries, not to say dictatorships, and there is a time where we can, and I hope we will, succeed in bringing back the can-do approach.
With your monumental experience, previously, now and going forward with what I have heard this morning, can you tell me, for Atlantic Canadians, how we can build a pipeline?
Mr. Kenney: Thank you, senator. I have spoken with Premier Higgs about this on several occasions and shared with him entirely the hope and dream of renewing a project such as Energy East so that central Canadians can displace foreign, increasingly U.S., oil imports, and Atlantic Canadians can help to add value and export those products to the rest of the world, getting a fair price. It was regrettable, I believe, that the Prime Minister, in response to Premier Higgs, gave the Province of Quebec an effective veto over a prospective interprovincial pipeline, which would be a matter of federal regulatory jurisdiction.
Senator, if this bill passes, the faint hope of some future East Coast pipeline is completely dead. Let’s be clear: No board is going to come forward with a final investment decision to risk billions of shareholder dollars to go into a sinkhole of a process that represents nothing but uncertainty, endless interventions and the constant possibility of political interference. The dream of which you speak, which is the opportunity to create more wealth in a province that is struggling and in a region that has struggled economically, dies with the adoption of Bill C-69 in its current form.
The Chair: Thank you very much, premier, for this interesting conversation.
We now welcome the Honourable Catherine McKenna, P.C., M.P., Minister of Environment and Climate Change; the Honourable Amarjeet Sohi, P.C., M.P., Minister of Natural Resources; and the Honourable Marc Garneau, P.C., M.P., Minister of Transport. They are accompanied by Ron Hallman, President, Canadian Environmental Assessment Agency; Stephen Lucas, Deputy Minister, Environment and Climate Change; Christyne Tremblay, Deputy Minister, Natural Resources Canada; and Thao Pham, Associate Deputy Minister, Transport Canada.
Ministers and officials, thank you for joining us. We invite you each to proceed with your statements, which will be followed by a period of questions and answers.
Hon. Catherine McKenna, P.C., M.P., Minister of Environment and Climate Change: Thank you very much. I am delighted to be here again.
Thank you, Madam Chair. I want to begin by acknowledging that we are on the traditional territory of the Algonquin and Anishinaabe peoples. It’s a pleasure to appear before the committee and to have the opportunity of contributing to your study of Bill C-69.
I appreciate the effort that has gone into hearing from a large number of witnesses since February. This is an extremely important piece of legislation, and I appreciate how engaged you all have been.
Hundreds of major resource projects worth an estimated $500 billion are being planned across Canada over the next 10 years alone.
This committee has heard lots of testimony about the positive contribution of Canadian natural resources, the responsible environmental performance of our resource sectors and the economic opportunities good projects can provide to communities across Canada, including Indigenous communities. On this, our government unequivocally agrees.
I understand that some witnesses have suggested Bill C-69 would prevent good projects from getting built, going so far as to suggest this bill is making it impossible. But in our view, that couldn’t be further from the truth.
The current system is a broken system that has let good projects languish in uncertainty. Bill C-69 aims to provide better rules to repair this system so we can increase certainty and encourage investment in Canada’s natural resources sector.
Bill C-69 proposes new rules that make sure good projects move forward in a sustainable way that enhances the competitiveness of our energy sector and resource industries. Better rules will improve investor confidence, strengthen our economy and create opportunities for the middle class and those working hard to join it. These new rules rely on science and evidence-based decision-making, increase transparency, rebuild public trust and protect our environment, and the new rules enable genuine partnership with Indigenous peoples. Bill C-69 will give Canadians the opportunities to +have their voices heard and advance reconciliation.
When we come together to adopt Bill C-69, we will be giving Canada a responsible and sustainable way to develop natural resources, with the kind of transparency and rigour that will instill trust in the outcomes, trust that has been lacking.
Bill C-69 has benefited from the input of literally thousands of Canadians over months and months of consultation and engagement. In fact, the process began in January 2016.
For three years, people across this country have provided input, including industry, academia, and our indigenous, provincial and territorial partners.
Two expert panels and two parliamentary committees held their own meetings, conducted studies, heard witnesses and reviewed comments from the public. This input has benefitted and strengthened the bill.
The committee has heard from many of the same people that we heard from during our consultations. There have been a wide range of witnesses with a wide range of perspectives — some aligned and some wildly opposed. But I believe that underneath disagreements on policy design, there is a real consensus among Canadians when it comes to having a modern environmental and regulatory system that protects the environment, supports reconciliation with Indigenous peoples, attracts investment and ensures that good projects go ahead in a timely fashion. I know all Canadians can agree that good projects should go ahead in a timely way — projects that will create good jobs and economic opportunities.
I’d like to spend a few minutes on key aspects of the bill that have come up during your study.
As you have heard, there is broad support for the early planning phase, an essential component of the new impact assessment system that reflects what we know to be best practice for industry. Early planning provides for a structured process, led by the impact assessment agency, to engage with stakeholders, potentially affected Indigenous peoples and communities, regulators and cooperating jurisdictions. It ensures key issues are raised early in the process, leading to better project design and ensuring project proponents know what’s expected of them at the outset. Additionally, upfront investment in early planning allows for faster reviews and more timely decisions. This is a key element of our “one project, one review” approach, ensuring the needs of all partners, whether provinces or federal life cycle regulators are met through a single process.
Under Bill C-69, impact assessments will consider how proposed projects could affect not just our environment, as with the current system, but also the long-term social, health and economic impacts. This responds to feedback from Canadians that they expect project decisions to be informed by impacts on communities, including positive economic contributions.
By focusing on sustainability, we can make sure that there are lasting benefits for Canada — no more short-term gains causing long-term pain for communities.
There has been concern expressed with the broadened scope of factors that would be considered. In fact, what we have built throughout Bill C-69 is increased transparency. Many economic and social factors have been rightly considered by cabinet, as Canadians expect them to be, in making decisions on major projects. Bill C-69 brings transparency to the information that cabinet considers in making its decisions and requires transparency on the reasons for the decisions made.
We have heard from Canadians that they want more clarity on how factors such as climate change and Gender-based Analysis Plus will be considered during impact assessments. We have listened and are consulting on a strategic assessment on climate change, which will provide clear and transparent guidance on how climate change will be considered within individual project reviews. Similarly, the agency is developing public guidance documents, including one on GBA+, which was released yesterday, with more to follow in the coming weeks. These documents will give assessment practitioners clarity on how to undertake these assessments.
Some witnesses expressed concerns that economic considerations won’t be factored into impact assessments. That’s just wrong. But, as noted, the shift to impact assessment involves a focus on sustainability, the definition of which includes economic effects. In fact, the impact assessment act directly and indirectly mentions economics 179 times. The consideration of a project’s economic benefits, such as being able to meet increased demands for energy as our economy grows, will be important factors in project decisions. It bears noting that this represents a change from the current regime, which only considers the adverse environmental impacts. The legislation right now makes no reference to economic considerations.
I know you have also heard concerns about discretionary powers the Minister of Environment and Climate Change and cabinet would hold under the proposed impact assessment act. We held exhaustive consultations with Canadians, and it was the opinion of the majority that final decisions should continue to rest with elected, accountable ministers. The level of discretion proposed in Bill C-69 is consistent with the existing federal environmental assessment regime and with provincial regimes.
In addition, I would argue that Bill C-69 will bring significantly more accountability and transparency to the process. It will allow for a much clearer, direct line of sight, from the beginning of the assessment to the decision at the end. Decisions will be based on clear criteria and provide a publicly available impact assessment report. When a decision on a project is made, the reasons will be posted publicly for all to see.
This government believes it’s important for Canadian to have a voice in the review of major projects. I know you have heard concerns that eliminating the standing test in the current system would result in delays and a drowning out of voices. I know you’ve also heard from a number of witnesses that have shown how open, inclusive participation in process is critical to achieving broad support for projects and reducing the risk of litigation. Bill C-69 provides greater opportunity for public input, including for those most affected.
The current regime under CEAA 2012 does not include a standing test, and participation has been very well managed by the diligent officials at the Canadian Environmental Assessment Agency. The new agency will continue to use this expertise, managing public consultations on major projects through a variety of mechanisms whether in person, online or via written submissions.
I’d like to take a moment to talk about Bill C-69’s approach to Indigenous participation. With Bill C-69, we are moving beyond the duty to consult to a rights-based engagement. As proposed in this new legislation, we will work in partnership with Indigenous peoples to ensure their involvement in studying project impacts from the start. By recognizing Indigenous rights and knowledge in project reviews, we can advance reconciliation and get to better project decisions.
It is imperative to note here that consultation and engagement with indigenous peoples is separate and distinct from broader public participation in impact assessments. Indigenous voices will not be drowned out in this process. Bill C-69 ensures respect for the rights of indigenous peoples, including a mandatory consideration of impacts on their rights.
Finally, there has been lots of interest in the types of projects that will be subject to the impact assessment process. We just released a second consultation paper on the project list regulations as well as one on the information requirements and time management regulations. A technical briefing was offered to senators, and I hope you were able to participate.
We have been clear that the impact assessment act will focus on projects that pose significant risks to the environment in areas that fall under federal jurisdiction. I believe that the approach clearly laid out in the paper released yesterday addresses just that.
These regulatory proposals are the result of years of rigorous consultations with industry, Indigenous communities, environmentalists, provinces and territories, and the public on what kinds of activities should be subject to federal impact assessments.
Thank you to the committee for all the time and care you have invested in studying Bill C-69. I look forward to your thoughtful suggestions on how the bill could be strengthened and improved, while still meeting its underlying objectives.
Hon. Amarjeet Sohi, P.C., M.P., Minister of Natural Resources: Madam Chair, I also want to start by acknowledging that we are gathered here on Algonquin and Anishinaabe territory. It is not just important from a ceremonial point of view, but, for me, it is also a commitment for reconciliation. I am someone who has been able to build my life in this country, and I feel a personal responsibility that, wherever we go, we do acknowledge a strong partnership with Indigenous communities as move forward on our work as a government.
Honourable senators, I am pleased to be here with my colleagues to talk about Bill C-69, which could be one of most important pieces of legislation we work on together. Bill C-69 is about ensuring that we get good resource projects built in a timely, responsible and transparent way by introducing better rules that protect investor confidence, promote public trust, advance reconciliation with Indigenous peoples and enhance environmental protection.
Our government shares your determination to get this right, and we remain open to constructive amendments that will strengthen this legislation.
However, the consequences of not fixing the existing system are simply too great. I say that as a proud Albertan — as someone with friends, family and neighbours who make their living in the oil and gas industry. I say this as the minister who is currently overseeing our government’s reconsideration of the proposed Trans Mountain Pipeline Expansion Project. Bill C-69 addresses many of the issues outlined in the Federal Court of Appeal’s decision on that particular project. Most important, it requires earlier and regular engagement, including with Indigenous peoples.
TMX was first submitted to the National Energy Board in 2013. Today, in 2019, the review still continues. Let me be clear: We remain steadfast in our commitment to get this process right by following the court’s guidance, but it should have never come to this. It is an indictment of a system that left major resource projects vulnerable to legal challenges by failing to ensure Indigenous voices were heard and environmental concerns taken seriously. It is a call to action to everyone who wants our natural resources sector, and particularly our energy sector, to be competitive and create good, middle-class jobs. It is a call that our government is responding to.
Behind every project is a team of labourers, engineers, tradespeople and architects with good-paying jobs. Behind those workers are families and communities that benefit from the 1.8 million jobs created, directly or indirectly, by the resource sector.
Canada has a new wave of projects on the way. In fact, our latest inventory indicates that there are more than 400 resource projects either already started or planned over the next decade, with a combined value approaching $585 billion. The time is now. If we want to keep seizing on all these opportunities and build a Canada that works for everyone, we must develop our resources in the right way. We need to ensure good resource projects will grow our economy. Our job economy can get built with major projects like pipelines, hydro dams and offshore wind energy that mean jobs for Canadian workers.
That is the purpose of Bill C-69 and the reason for creating a new Canadian energy regulator to replace the National Energy Board. Canadians deserve a federal regulator that reflects Canada’s and the world’s changing energy needs. This is important and, frankly, overdue. The NEB’s structure, role and mandate have barely changed since it was created in 1959. We need a modern regulator to bring together Canada’s energy, economic, environmental and climate goals, while, at the same time, renew Canada’s relationship with Indigenous peoples.
The Canadian energy regulator act does all of this in five key ways.
First, it proposes a modern governance and management model. We want to separate the regulator’s decision-making functions on major projects from its daily operations so that it has the necessary independence and the proper accountability. We are also proposing that the new regulator feature greater regional diversity and expertise, including in areas such as Indigenous knowledge, municipal planning and engineering. In Canada, in 2019, this diversity and expertise are essential for successful project reviews. We also propose that at least one member of the board of directors and one full-time commissioner be First Nations, Metis or Inuit.
Second, we want to enhance investor certainty by reducing red tape, duplication and unnecessary delays in the decision-making process. We would do so by ensuring more decisions reside with the regulator’s commissioners or the Minister of Natural Resources. To make the process more efficient, we propose giving the regulator more authority to make final decisions on issues such as suspensions of certificates and licences. The bill also proposes to empower the Minister of Natural Resources with final decisions on export licences, which were previously a cabinet decision. We also want to provide companies with a clear understanding of what factors will be taken into account in any review of a project’s impact.
Third, the new Canadian energy regulator would enhance public trust in the review process by making it more inclusive, transparent and meaningful. That is why the CER act proposes to do away with the NEB’s standing test, which was only added to the legislation in 2012 and has damaged public trust by polarizing Canadians on major energy projects. By clarifying the factors considered in this public interest determination, enhancing the public participation program and ensuring reviews incorporate the views of Canadians, we get to better decisions. Just as this committee opted to tour the country to hear from Canadians, we believe the new regulator must respect the rights of Canadians to be heard.
Fourth, the new Canadian energy regulator would support Indigenous participation and ensure meaningful engagement throughout the review process by recognizing Indigenous rights up front, enhancing the consideration and protection of Indigenous knowledge and establishing an Indigenous advisory committee.
Fifth and finally, we want to make sure the new federal energy regulator has the tools it needs to safeguard the public and protect the environment. Through all of these measures, we can better support Canada’s energy sector, one that is globally competitive, attracts investments and ensures we can protect the environment for future generations.
Madam Chair, I will now pass things over to my colleague Minister Garneau.
The Honourable Marc Garneau, P.C., M.P., Minister of Transport: Thank you, Madam Chair. I too would like to acknowledge that we are on the traditional lands of the Algonquin and Anishinaabe peoples.
I appreciate the opportunity to speak with you today about the new Canadian Navigable Waters Act, which would be established under Bill C-69. With this act, our government is delivering on its promise to restore protections and put in place modern safeguards. This promise will protect the public right of navigation on all navigable waters in Canada.
Navigable waters have defined our country. The indigenous peoples of Canada have a long history of using these waters as a means of travel, to hunt and fish, and also to travel to ceremonies, meetings and exchanges with other indigenous groups.
And today, one only needs to look at how many communities now stand where our rivers flow and merge, or where they narrow, or where they meet our oceans, to see how our navigable waters have shaped Canada. For example, just beyond the windows of Parliament here in Ottawa, we have the confluence of the Ottawa, Rideau and Gatineau Rivers.
These particular waterways have been instrumental in the history of the national capital region—as a logging community, and, of course, dating back much earlier, when travelling by river facilitated trade among first nations.
And this is only one example of many across Canada. From our big, cosmopolitan cities to innumerable villages and hamlets, much of our history and culture has been written with the ink of our navigable waters. The new Canadian Navigable Waters Act aims to recognize and protect the use of these waterways.
With the Canadian navigable waters act, we are restoring lost protections so that Indigenous peoples and recreational boaters can continue to travel Canada’s vast network of rivers, lakes and canals for years to come. This legislation would restore and better protect the right to travel on all navigable waters in Canada. It would support a new, world-leading environmental and regulatory system under which important projects are allowed to proceed in a sustainable manner with a framework that provides for predictable and timely decisions.
The new Canadian navigable waters act is the result of extensive consultation, and consultation is, indeed, firmly entrenched at the heart of this new legislation. Our government launched a review of the Navigation Protection Act in June 2016. There were public consultations over the course of more than a year. We heard from recreational boaters. We heard from other levels of government. We heard from Indigenous communities. We heard from industries. We heard from environmental organizations. The study conducted by the House of Commons Standing Committee on Transport, Infrastructure and Communities was also extremely useful.
The new legislation would advance reconciliation with Indigenous peoples, safeguard their rights and give them the opportunity to partner with the government to manage the navigable waterways that are important to them.
It would give communities—and recreational boaters—more chances to have their say on infrastructure and resource projects that could affect their right to navigation. ln addition to protecting the public right of navigation on all navigable waters in Canada, the new Canadian Navigable Waters Act would maintain a schedule of waters. The schedule is a useful tool for identifying navigable waterways that are most important to Canadians and indigenous peoples, and most vulnerable to development.
The new legislation would make it easier for anyone to request additions to the schedule, and quicker for the government to make them. It would also broaden the factors the government would consider when deciding whether a navigable water should be added to the schedule.
With the new legislation, the public would be better informed about the new process for adding navigable waters to the schedule, as well as the criteria used in decision-making. This legislation also includes a comprehensive definition of “navigable water” that would expand oversight to waterways that are not currently considered navigable.
The new definition better captures waterways used for boating, or used as a means of travel for indigenous peoples to exercise their rights. New protections in the legislation would also require consideration of the cumulative impact on navigation of multiple projects on a waterway.
There would also be a new notification and resolution process, making information available on works constructed on non-scheduled navigable waters so that navigation concerns can be addressed before construction begins.
The new Canadian navigable waters act would also play an important role in the proposed new impact assessment system as outlined in Bill C-69. Under the new legislation, the impact assessment agency of Canada would lead all federal reviews on major projects, and for those major projects, any navigable waters permits would be informed by the results of the impact assessment process.
I am confident that under the new system out lined in Bill C-69, projects would be built in a way that protects our environment while creating jobs and growing our economy. My department has met and will continue to meet with stakeholders to address concerns and provide clarification on Part 3 of the bill, and we remain open to amendments that this committee may propose as a result of concerns heard.
Our intention with this legislation is to restore lost protections that are important to Canadians and, particularly, to improve transparency around the entire process. It is not to introduce unnecessary red tape that will hamper projects and impede economic growth.
Thank you, and I welcome any questions. Thank you, madam chair.
The Chair: Thank you very much for your statements. We will now have our question period.
Senator Cordy: Thank you very much to all three ministers for being flexible and changing your schedules at the last minute.
I will begin with Minister McKenna. I agree with your comments that the current system has let projects languish for long periods of time in uncertainty. Some would blame this on Bill C-69, which is pretty recent, but we know, as Minister Sohi said, TMX was submitted to the National Energy Board in 2013 and languished there for quite a while.
My question actually relates to the Atlantic Accord. It is very important to the people of Atlantic Canada, and it is particularly important to my province of Nova Scotia and to the province and people of Newfoundland and Labrador. We certainly discovered the importance of the Atlantic Accord when it was tampered with in Budget 2007, where Atlantic Canadians — the people of Nova Scotia, Newfoundland and Labrador — were told they could only keep 100 per cent of their offshore revenues if they stuck with the old, less-general equalization formula.
Minister, you will understand my concern when I heard Minister Siobhan Coady from Newfoundland and Dr. Locke when they spoke about the need to respect the Atlantic Accord, which would raise a red flag for anyone from Nova Scotia in light of what happened in 2007 when we had been promised something and yet the budget undid that promise. Could you respond to the concerns raised by Minister Coady and Dr. Locke that we have to respect? They didn’t raise a concern specifically about the bill, but they did make note that the Atlantic Accord had to be respected. Can you allay some of my concern and that of the people of Nova Scotia, Newfoundland and Labrador related to that?
Ms. McKenna: Thank you very much, senator. I would be remiss if I didn’t introduce two very important people who have worked hard on this file — my deputy, Stephen Lucas; and the President of the Canadian Environmental Assessment Agency, Ron Hallman.
It is extremely important that we respect provincial jurisdiction, and, in the context of Nova Scotia, Newfoundland and Labrador, the Atlantic Accord. We are certainly committed to joint management of the offshore and to upholding the principles of the Atlantic Accord. I worked closely with my colleagues from Nova Scotia, Newfoundland and Labrador, as well as the Governments of Newfoundland and Labrador and Nova Scotia.
One of the issues that was of concern was with respect to designated offshore oil and gas projects. They will be assessed by a review panel with two of the five panel members coming from the offshore board. This design ensures a continued reliance on the knowledge and expertise of the boards.
It is really important to note that under the current legislation — and there has been some confusion. Bill C-69 is not in effect, so it can’t be impeding any projects from going ahead because we are under the system that was designed under the previous Conservative government. Under the current system designed by the previous Conservative government, offshore petroleum boards have no formal or legal role in environmental assessments. So no formal role or legal role under CEAA 2012.
The way we designed the new system under Bill C-69 would ensure continued reliance on the knowledge and expertise of the board but recognizing the boards themselves. We are committed to joint management and have full confidence in the offshore boards. As I say, this legislation provides the offshore boards with a greater role in project reviews.
We certainly agree with you that the provinces of Nova Scotia, Newfoundland and Labrador are integral partners in the joint management of Canada’s offshore resources. That’s a general comment that we believe we need to be working with provinces and that it is extremely important that we get our good projects to go ahead in a sustainable way. That’s why our focus is quite squarely on projects that have an environmental impact in areas of federal jurisdiction.
The Chair: Thank you. I’ve just been informed that the three ministers have to leave at 10:15 because there is a vote, but Minister McKenna will come back. Maybe you would prefer to make your first questions to Minister Garneau and Minister Sohi.
Senator Carignan: My question is about the sharing of constitutional jurisdictions. We heard from the Government of Quebec that this bill intrudes on provincial fields of jurisdiction defined in the Constitution. We heard the same thing earlier, clearly stated by the Premier of Alberta, Mr. Kenney. I would tend to agree with them, especially when I see local projects in the designated projects list. One gets the impression that the federal government is using the back door, the regulations on migratory birds, for instance, or on fishing, to intrude on provincial areas of jurisdiction such as mines, quarries and sand pits.
I will give you an example. In the list of designated projects we received yesterday, it says that when there is an increase in rare earth excavation of 2,500 tonnes a day or more, this becomes a designated project. In the case of a gravel quarry or sandpit, production that could expand to 3.5 million tonnes becomes a project that is designated for an environmental assessment.
In Saint-Eustache, we probably have the second largest quarry in Quebec, and I’m having trouble seeing what the link is with fishing and migratory birds.
Could you explain the constitutional basis of your approach, and assure us that you are not using the Species at Risk Act or the act concerning migratory birds to get into a provincial area of jurisdiction?
Ms. McKenna: Thank you, Senator. I want to be really clear. What are we doing here? We are examining the possibility that there may be adverse effects on federal areas of jurisdiction. I want to be very clear on this topic. You spoke about migratory birds and it is clear that that is under federal jurisdiction. The environment is under the joint jurisdiction of the federal government and the provinces. As I said, we will not only examine major projects that may have detrimental effects in areas of federal jurisdiction.
It is important to insist on the fact that this is the state of the law now in Canada. Supreme Court decisions have recognized that the environment is a joint field of jurisdiction between the provinces and the federal government, such as in the Crown Zellerbach, Churchill Falls v. Hydro-Québec, Interprovincial Co-operatives, Northwest Falling and Westcoast Energy rulings. I was very clear with the Premier of Quebec when I had the opportunity to speak with him. I reassured him and confirmed that we are examining the impacts in federal fields of jurisdiction. I think that is really important.
I will ask my deputy minister. He will be able to address your specific concern.
Senator Carignan: I don’t want to interrupt you. Already in your list of designated projects, you identify quarries and sandpits without necessarily making a link with migratory birds. You automatically insert them in the list. If only it were at least optional, if you said: “If I see that a wild goose is settling into the quarry, I will examine that case”, but you are not even waiting for that stage. You already include them specifically in the designated projects. That is what I don’t understand.
Ms. McKenna: Thank you very much for your question. I think it’s important to understand this. We held consultations with the industry, and now, because of the system that was put in place by the former Conservative government, the projects you speak about are already on the list. So, what we have done is nothing new. As I said, we are examining the projects that have impacts on federal fields of jurisdiction, and the former Conservative government had already recognized that.
Senator Carignan: That does not justify an intrusion into provincial areas of jurisdiction.
The Chair: I am sorry, but we have to move on.
Senator Simons: I have questions arising from Premier Kenney’s testimony earlier today, which I am sure you heard. These questions I will direct to Minister Sohi and Minister McKenna.
The draft project list discussion paper came out yesterday. It adds in situ facilities, which have never been on the project list before, including the expansion of in situ facilities. It also includes — it says “technical amendments,” but I’m not entirely sure what the difference is — larger-scale gas plants, including the expansion of gas-fired electrical generation.
I thought the premier raised some very valid points about what is and what is not a matter of federal jurisdiction. I’m curious to know on what basis — and I would like to hear from each of you — in situ and the expansion of existing in situ — on what basis you feel that falls into federal jurisdiction, as well as construction of large natural gas power plants.
Ms. McKenna: Thank you, senator. That’s an important question. I want to be accurate here, and it is extremely important that senators understand that, categorically, greenhouse gas is an area, inherently, of shared jurisdiction and responsibility between the federal and provincial governments.
In terms of in situ, first of all, we should be clear in what we are talking about. It is a cap on emissions, on pollution, not on production. That is also extremely important to understand.
Our proposed approach for in situ oil sand projects respects our commitment that any proposed facilities in Alberta subject to Alberta’s Oil Sands Emissions Limit Act, as was committed to by Alberta under the Pan-Canadian Framework on Clean Growth and Climate Change, fall within the exemption eligibility proposed that would not require a full federal review. If we go back to the time when this was announced in Alberta, it was industry, Indigenous peoples and environmentalists who supported the 100-megatonne cap on oil sands emissions, which is consistent with Canada’s national climate plan.
I would like to explain the rationale. I’ve spoken with major energy companies, and they’ve expressed support for the cap on emissions, saying that it sends a signal to international investors that the sector is serious about reducing the emission intensity of its operations. That’s very important. We want to get our resources to market, we want to do it in a sustainable way and, now, when people are looking and when investment decisions are being made, it is just the reality that folks are looking to see if countries are serious about tackling climate change. This is a very important signal to markets. I want us to get our resources to market.
I believe that we are doing what we need to do to move to a cleaner economy, and I think this reflects that. It is a recognition by the sector that we are all in this together. By demonstrating strong leadership in this regard, it will help get these resource projects to market. It will be better, create more jobs and demonstrate Canada’s leadership. I will be at the G7 later this week, and I am quite happy to make that case to the international media.
Mr. Sohi: Yes. It is important for us to stress the point that Minister McKenna made earlier that the agreement that the previous provincial government put in place to have a cap on oil sands emissions is a larger part of the Pan-Canadian Framework on Clean Growth and Climate Change. It is also very important for us to continue to stress that it is not a cap on curtailing development. It is not a cap on production. It is a cap on emissions only. As more investment is made into new technologies and reducing the per capita intensity of oil sands emissions, the sector will continue to grow. There is a lot of room to grow for the sector. It is very important to make that distinction. Some people do try to mix it up — that somehow the cap will stop the production in the energy sector. That is not the case. There is a lot of room to grow.
The Chair: Minister McKenna and Minister Sohi, Part 5 of the Canadian energy regulatory act establishes a regulatory framework for offshore renewable energy projects and offshore power lines. You can explain to me how this will establish this new industry? Are you expecting that it will create or attract new investment?
Mr. Sohi: I will ask my DM to go more into the technical aspects of that, but as Minister McKenna mentioned earlier on, the offshore boards under the current legislation actually have very little influence on how the projects are assessed, reviewed and evaluated. We are giving enhanced authority to the offshore boards by having two members of the boards be part of the review process. Also, in terms of the aspect of regional assessments, it’s about ensuring that every project that comes the way — small projects — are not assessed individually once you have regional assessment. I will ask my DM to explain more.
Christyne Tremblay, Deputy Minister, Natural Resources Canada: Thank you very much, Madam Chair. In fact, I think your question touched on offshore renewable resource projects. This bill seeks to fill a regulatory gap. Currently, there is no framework that regulates those projects. So, Bill C-69 gives that authority to the new energy regulator, but that will not prevent future delegation of that authority to offshore boards which could take over this regulatory area if they wish to, under agreements concluded in the oil and gas sectors.
The Chair: Thank you.
Senator LaBoucane-Benson: Everybody around this table is interested in increasing certainty and decreasing litigation in this process. One of the best ways to do that is to ensure the federal government completely discharges its duty to consult with First Nations people, as that’s the primary cause of litigation.
We heard from one witness from FCM who had a really compelling amendment for us. They called it a backstop. They said that this bill provides an opportunity for pre-planning, which I think is the codification of something that best practice proponents do already. In that pre-planning, the consultation plan is put in place and everything that the proponent has to accomplish is set down and agreed upon. The idea of this backstop is that if the proponent crosses every “t,” dots ever “i” and does all of the things it was supposed to do, and then the federal government does not discharge its duty to consult fully and litigation occurs, then the federal government will reimburse both the First Nations’ costs in this entire process as well as the proponent’s costs. This would increase the certainty of the proponent, because if the proponent does everything they are supposed to do and the First Nations participate in good faith in the process, it would be interesting to have a guarantee that their good work would not be for naught because the federal government has not done its duty to consult.
Minister Sohi and Minister McKenna, could you comment on that idea?
Mr. Sohi: The issues that I’m dealing with currently relating to the TMX project are absolutely what you have talked about, senator. They could easily have been avoided. The litigation could have been avoided. There were 17 challenges to the Trans Mountain Pipeline Expansion Project. They mainly came about because the early engagement involved cutting corners on consultation with Indigenous communities or trying to get these projects moved forward as quickly as possible without having a proper process or regard for such a process. Early engagement, for me as an Albertan and as a federal minister, is so fundamentally important for good projects to move forward. On the other question on backstop, compensation and all that, I have not given any thought to that aspect. But I think Bill C-69 and the early engagement aspect give more certainty for people. When you can define the scope of the project earlier on, then investors know what risks exist and what risks they need to overcome. That gives a lot of certainty for them to move forward on projects.
Ms. McKenna: To add to that, we are happy to consider any amendments, and we’ve been very clear about that.
I agree with you in the sense that when I speak with Indigenous peoples and communities, they want to be part of the process. The idea that they are all against resource development is just not true. They want to be part of the process. They want their rights to be respected. They want Indigenous knowledge to be included. They want to be engaged from the very beginning, and I think this is really the opportunity that we have to get this right.
I was very proud that we have their support, that there was a resolution passed by the Assembly of First Nations supporting Bill C-69, feeling this is a much better place, not just meeting the bare minimum of what we are required to do but actually figuring out a way so we can move forward. As Minister Sohi, my colleague, just said, unfortunately, under the current legislation, what we end up with is polarization. We end up in court, and good projects are not able to go ahead.
Senator Mitchell: Thanks to all of you. It is very refreshing to have you here. I have two questions to begin with. One is somewhat general, but it’s a red herring that I would really like to have addressed. We keep hearing it. We heard it this morning from the premier.
It is that somehow — I’m always struck by this — the energy industry, one of the wealthiest and most powerful industries in the Western world and in the history of the world, I might say, somehow has been out-communicated by environmental groups that by no means are vastly funded. The only example the premier could actually use or did use to defend his position on that this morning was an example from 2008, 11 years ago, which I know was $1.4 million.
So is it not at least possible that this kind of communication or the momentum is driven by the power of the argument, which is people are concerned by the resonance of this environmental argument, and in fact, that raises the question of public trust that underlines this bill? And/or is it not possible that there are just competitive interests in the U.S. that want to inhibit the ability of Canadian oil to be marketed through the U.S. and elsewhere? It is somewhat of a rhetorical question, but I think it’s an issue that needs to be addressed, at least, because it seems to pervade this debate to some extent.
Ms. McKenna: Well, that’s a good question. Maybe I’ll go to process, which is maybe a little bit boring, but I think it’s really important.
We started this in January 2016. We announced interim principles. Why did we do that? Because unfortunately, under the system we’re under right now developed by the previous government, there was a lack of public trust. It was harder, not easier, for good projects to go ahead. We were ending up in court. There was polarization. So that’s why we took the time to do the hard work that is needed to listen to Canadians.
That work was not done by the previous government. The previous government passed CEAA 2012 through an omnibus budget bill without consultation. What we have done is consult with everyone because we have heard from Canadians that they care about the environment and they care about the economy. They want good projects to go ahead in a sustainable way. They understand the importance of science and evidence in decision-making, and transparency, and they want us to respect our obligations to Indigenous peoples but also advance reconciliation.
So we had, since January 2016, when the interim principles were announced by myself and the then Minister of Natural Resources, two expert panels and two parliamentary committees. We received advice directly from Indigenous peoples and from industry. Industry voices were certainly well heard. I know you all heard them very well. They spent a lot of time speaking with you, as well as environmental groups, provinces and territories, academics and the public. Over 14 months, the government held hundreds of meetings, received hundreds of written submissions and thousands of comments from Canadians. They also heard from expert panels and parliamentary committees, held meetings and received presentations and public comments.
While there seems to be this view that there is a huge divide between what people want, let me tell you what I heard. I think we have to come together as a country. I think we have to make sure that instead of polarizing, instead of dividing ourselves into our own little areas, whether it’s sectors or provinces, we need to look at what brings us together.
What is the common thread that I heard? That folks want early planning. Early planning is important. Early planning is important for Indigenous peoples to hear their voices, but industry said they wanted early planning. Why? Because they wanted one project, one review. They wanted to make sure we got our act together and we were able to work with provinces. They wanted guidelines that would provide more clarity about what was going to be required by them. Ideally, if they were in this situation, they would provide the necessary information and we would provide a permitting plan. If you’re going to go to your board and ask for investment decisions to be made, you need to be able to show that you’re making progress. That was extremely important to them. That transparency of the process was extremely important to them, and that decisions were made based on science, evidence and Indigenous knowledge. We also heard that. That the process should be timely, and you should manage the timelines and get good projects to go ahead in a timely way. That is what this legislation does.
I worry about some of the rhetoric, which unfortunately I think causes polarization within our own country, which is a bigger challenge. But I want these good projects to go ahead. We have a $500 billion or more opportunity over the next decade. That’s incredible. We are extremely lucky to live in a country that is blessed with natural resources. We’ve got to get our act together. This is the intent of Bill C-69.
We listened to folks. As I say, there is more that unites than divides us in this, and I think that we are very interested in hearing comments and suggestions from senators to improve the bill because better rules are better for everyone. It’s better for the environment. It’s better for the economy.
Mr. Sohi: The only thing I would add, senators, is that as an Albertan, I really want to make this appeal to all of you. There is a lot of anxiety in Alberta among workers and families because, over the last four years, the downturn in the energy sector has hurt many families. There are thousands of workers who have been laid off and are out of work. We have not been able to build a single pipeline to tidewater for the last number of decades, and it’s really holding us back.
For us to help the energy sector in Alberta, we need to ensure that we are expanding our global market and that we are getting our resources to countries beyond the United States. But in order to build a pipeline, we can’t just ram it through. We need to have the process work. That process must look after the environment and must include a meaningful way for Indigenous peoples to participate. We need to fix that process, otherwise we will be in the same position that we have been in the last number of decades. Northern Gateway failed because process failed. We are in TMX because process failed. We need to figure it out, and we need to fix the process.
I urge you to please clearly expect all of us to work together. Look at this bill. We are open to appropriate amendments, as Minister McKenna has said. We want to work with you to fix the process so we can actually get good projects built on behalf of Canadians, particularly on behalf of my province.
Senator Frum: Minister, on February 6, Senator McCoy asked Mr. Lucas if he would be prepared to tell the committee that you will not — not that you don’t intend to not — include downstream emissions on an energy project in an environmental assessment. He responded that the government has a clearly articulated view that, as presented in its discussion paper this summer, it does not intend to look at downstream emissions. Since you are here, I would like to invite you to give us clarity on this point of whether or not downstream emissions tests will be imposed on pipeline projects under Bill C-69.
Ms. McKenna: No, it will not. We have our strategic assessment on climate change. It will not.
But let’s be clear. Just in general, we have a climate plan. It’s not a Government of Canada climate plan. It’s a climate plan for all Canadians because we negotiated with the provinces and territories, Indigenous peoples, and Canadians, and that addresses climate change. But I want to be 100 per cent clear. There was some confusion from the National Energy Board, not from us, but downstream emissions will not be considered.
Senator Frum: Was it a mistake that this test was imposed on Energy East under your government?
Ms. McKenna: It was the National Energy Board that made decisions in that regard. We have been clear, and I am being clear right here today, that we are not considering downstream emissions.
Senator Massicotte: My question is to Minister Sohi. The bill, as you know, in the preamble, refers to the UN declaration of Indigenous rights. You earlier declared in the Senate Chamber that the projects will not be subject to veto by the Indigenous people. You were very clear. But how do you square that with the provision I think in article 32, where it makes it very clear that no project or any decision affecting — the word is affecting — Indigenous rights or properties or interest will be approved — the word “approved” is clear — re prior and informed consent by the Aboriginal people. Everybody interprets it differently. I heard a lot of stories. I met a lot of people. I read a lot of materials. But approval is very clear. It’s an English word. Look at Webster. Consent means approval. Approval means yes or no. It seems to me a no means a veto. How do you square the assurances that everybody tries to tell us, yet that’s not what it said, that’s not what the papers said, and that’s probably not what future judges will decide on what it means to make reference to that bill?
Mr. Sohi: Again, senator, coming back to the engagement we have undertaken now on Indigenous communities on the Trans Mountain Expansion Project, it is quite a learning exercise to understand the real issues that Indigenous communities are facing. What is required from the government is that we have a constitutional obligation to engage with impacted Indigenous communities in a serious, two-way, meaningful dialogue, which means that we listen sincerely, we hear their concerns and we make serious efforts and attempts to accommodate those concerns. Right? And in cases where we are unable to accommodate those concerns, to be very transparent and open with those Indigenous communities saying why those concerns cannot be accommodated. That’s the test that the Federal Court of Appeal wanted us to apply as we move forward. So my understanding of UNDRIP is that as a government, as the Crown, we need to make serious efforts to strive to seek consent. Right? That’s the test.
Senator Massicotte: What you have just said is exactly what the Supreme Court has ruled in several key rulings, and what you describe there is what they told us is our responsibility. But this goes beyond that in my mind. That’s my concern. I’m not anti-Aboriginal — I think I’m in favour of it — but I don’t like the confusion that it causes, where the Supreme Court has often used “meaningful consultation” and “accommodation.” Now we have the word “consent,” and consent is consent. You need to approve, yes or no. No means veto to me. People are saying no, there is no veto.
Mr. Sohi: That is not our understanding of UNDRIP. Our understanding is that the Crown has to make serious attempts to strive to seek consent.
Senator Massicotte: Maybe I can get a copy of your dictionary.
Senator Eaton: Minister, in your speech, you talked about ministerial discretion. Do you have to go for your vote?
Ms. McKenna: I think we do, because it’s 10:16. I think we said 10:15. I would love to keep my colleagues here.
Senator Eaton: I look forward to seeing you when you come back.
Ms. McKenna: We will be back.
The Chair: We will continue with the officials.
Senator Eaton: Can I ask that of the minister when she comes back?
The Chair: Okay. Senator Woo was next.
Senator Woo: Can we reboot? My question was really for the minister.
The Chair: Can we start a new list? Who wants to go first in this list? Senator Simons?
Senator Patterson: Let’s start with people who haven’t had questions.
The Chair: Senator Patterson, do you want to go next?
Senator Patterson: Yes, if it’s possible. I had intended to ask this of the ministers, but I’m sure the officials will answer. I was astonished at both ministers talking about all the resource projects planned for the next decade. Minister Sohi said 400 resource projects, $585 billion. We have heard quite the opposite. We have heard that $100 billion worth of energy projects have been shelved. Al Monaco, president and CEO of Enbridge, for example, said any company that prudently assesses risk will not invest capital under this framework. Very specific question: Minister Sohi referred to an inventory of over 400 resource projects. Can we see that inventory? We’re in the final stages of looking at this bill, so can we see that inventory as soon as possible?
Ms. Tremblay: Thank you very much. Every year, the ministers responsible for the energy and mining sectors compile all of the investment projects within Canada. That inventory is available and could be shared with all of the senators at this table. It would show the potential of projects in both sectors over a 10-year period.
The Chair: Can you please send these to the clerk?
Ms. Tremblay: Yes.
Senator Patterson: I had hoped to ask this of Minister Sohi. Talking about Indigenous participation in the regulatory process, as I understand it, there are three advisory bodies with the guaranteed representation of Aboriginal people Minister Sohi referred to. There is a ministerial advisory council. I’m quoting from the bill, clause 117. That’s advisory council to the minister. There is an advisory committee under clause 158, advisory to the assessment agency. There is yet a third, clause 57, advisory committee to the energy regulator. They are all advisory bodies with no authority. Why did the minister describe these token advisory positions as a board of directors, implying that they have authority? I’m quoting from his prepared remarks, page 7. Why would he describe that as a board of directors when the bill itself says they are advisory in three different places?
Ms. Tremblay: The minister said that we are going to modernize the governance of the National Energy Board. We are going to modernize that governance and divide up the management role by creating a board of directors, but also by giving the chief executive officer a specific function with respect to operations. As of now, the board of directors must include indigenous representation. So, there is really a direct power to influence, and this is also true with respect to commissioners. There will be a group made up of seven commissioners who will be appointed and will be responsible for conducting assessments. There will also be an obligation to include an indigenous representative. In addition, there will be an indigenous advisory committee that will provide general advice to the organization.
Senator Patterson: When you folks were before our committee in January, I asked about the project list. I was told there was going to be a discussion paper. Then I was told there was going to be draft regulations. Now, yesterday, however many months later, we understand that there is a consultation paper that proposes draft guidelines that is available for 30 days. I’m just wondering why it’s taken the ministry so long to tell us definitively what is on the list. We won’t find out until at least the 30-day consultation period is over. We pressed on this in January. Why are we still in the dark about the project list and consulting at this late stage, on the eve of finalization of the bill? I would say the same about the guidelines on GBA+ and the other announcements that were made yesterday.
Stephen Lucas, Deputy Minister, Environment and Climate Change Canada: Thank you, senator. As the minister indicated, the project list was developed following the initial discussion paper released in February 2018, based on extensive consultation that continued through until recently and in consideration of the criteria outlined in the paper that was the subject of the first consultation, namely, that the project list is based on those projects with the greatest potential for significant adverse environmental effects in areas of federal jurisdiction.
That paper enumerates all of the entries in the proposed project list, and it includes in its annex a comparison of those entries in the current project list under CEAA 2012 with those proposed for the new regime. In that context, it provides full transparency both on the criteria outlined through extensive consultation to form the basis for what would be the entries on the list as well as the proposed entries on the list. It also enables public stakeholder consideration and consideration by this committee as it reflects on the legislation in discharging its responsibilities over the course of the next month.
Ron Hallman, President, Canadian Environmental Assessment Agency: The senator’s question touches on a pointed question we’ve had from a number of stakeholders, including from industry. By way of background, senators will be aware, I’m sure, that we cannot normally begin the work of regulations until Royal Assent of legislation has been achieved. Indeed, that is how it worked with CEAA 2012 where the updated project list to bring CEAA 2012 to life did not actually come into force until well after CEAA 2012 did.
Having lived the experience of implementing CEAA 2012 and the delay in having a project list, the minister sought and was granted authority to begin that regulatory work and the associated consultations concurrent with the development of the bill, and that’s what has been happening.
The first discussion paper that came out last June was about the criteria for developing the project list, with a commitment of coming back with a proposed project list. That is what yesterday’s paper does. Annex 2 provides that draft project list, subject to the public consultation that is required. Then the government will need to make a decision on that project list after Royal Assent, assuming Royal Assent of Bill C-69 at some point in the future.
Senator McCoy: I wanted to talk about the Crown obligation to consult with Indigenous communities. By way of preamble, on TMX, the Federal Court of Appeal found that one of the two flaws in the process was the failure on the part of the federal government to properly consult, and it laid out what needed to be done. The opinion of the court was that it could be concluded in four months. That was October last year. It’s now May. There has been an announcement recently that the federal government does not anticipate finishing that process until June.
The other outstanding fact was that the only flaw in the end for Northern Gateway was the failure of the federal Crown to properly consult First Nations. The federal government, on November 27, 2016, simply walked away from the project, again, without consulting with the Aboriginal equity partners — 31 communities that had a one-third equity stake. That meant $2 billion a year for those communities.
This question is probably going to go to Mr. Hallman, because I think you’re the agent of the Crown responsible for this aspect, at least under the agency-led assessments. What assurances can you give us that your performance in this regard is going to be better henceforth, keeping in mind that the statute, C-69, has not changed your obligation one wit from before? Your obligation is not reliant on an environment assessment act.
Mr. Hallman: Bill C-69 lays out a process that supports reconciliation and supports the principle of working to achieve consent throughout the process, recognizing that ministers and cabinet make a decision at the end of the process. It ensures that the government will engage proponents, provinces and potentially impacted Indigenous groups right up front at the beginning to make sure that the project description is abundantly understood and to make sure that all of the issues of concern, including to Indigenous groups, are identified right up front and that the proponent has an opportunity to express how they plan to respond to those issues of concern when they develop their impact statement; and that we have an ability to identify how we are going to work with the province through a cooperation agreement, and how Indigenous groups want to be engaged and the role that they will play, including on working groups, and the public, so that when the proponent goes off to do their impact statement, they address those concerns. When they come back, we will work with them and Indigenous groups again to look at whether the concerns have been addressed. If not, how not? We then look to fix them.
Once that is done, the agency does its report to the minister, taking everything into account, saying, “Here is how we understand the impacts. Here is how Indigenous groups understood them and told us. Here is how we are mitigating them, and here is how we propose to put conditions on the proponent,” or, “Here is how the government is going to have some complementary measures that address those in order to make sure that we are being respectful of our Indigenous responsibilities.”
Then we take another step, and we go back to the Indigenous groups in the post-assessment phase, and we say, “Here is everything. Have we got it right? Did we miss anything? Here is what we are doing in terms of accommodations, and why or why not.” By the way, all of this is going to go to decision-makers. They are going to take it into account in their decision, and then they are going to account publicly for the rationale of their decision. By doing that, Indigenous groups and others, whether they like the ultimate decision that decision-makers make under the law, will see their views reflected, they will understand how it was considered and they will know that they have been heard.
Senator McCoy: I appreciate your answer, but —
The Chair: Senator McCoy, now the floor is with Senator Simons.
Senator McCoy: — in the current process. Senator Simons, I’m sorry to interrupt —
Senator Simons: If you would like to answer Senator McCoy’s question, that’s fine.
Ms. Tremblay: Thank you, Madam Senator. I will answer.
I think it’s difficult to obtain a consensus or to consult indigenous peoples at the end of the process and ask them to be comfortable with a project. They absolutely have to be involved from the beginning and we have to be able to involve them at every step. Like my colleague Mr. Hallman said throughout the process, it’s important that they be stakeholders in the regulatory agency and on the board of directors, so that they may follow and monitor activities up to the end.
So, this is a process whereby we are transforming our method of working with them. Currently, things are not working because people go and consult them once the environmental assessment is done, and they are brought in at the very end of the process. That does not work.
Senator Simons: I have questions for the Transport staff. Since we last saw you before this committee, we have heard testimony from everyone from the cable ferry operators to local mayors who are concerned about the major and minor work distinctions within the third portion of this bill. The cable ferry operators are very concerned that they are captured as a major work, and they say to us that every time they change a cable, they will have to be considered a major work all over again. Local mayors told us they are very concerned that anything they do for flood mitigation could be captured as a major work. One witness even suggested to us that you need a third category of medium works in between the binary of the major and the minor. I want to hear from you about that.
Conversely, when we were in Atlantic Canada last week, we heard a lot of passionate testimony from people concerned about the environmental impacts of seismic testing in the offshore and about the environmental impacts of aquaculture. Neither of those seem to have made it to the project list. Why had they been excluded from consideration?
Thao Pham, Associate Deputy Minister, Transport Canada: With respect to CNWA, the Canadian Navigable Waters Act, the intent is to really restore protective laws; however, the intent is not to add administrative burdens to either private proponents or municipalities. In the last more than month or so, we’ve been engaged very intensively, and also hearing the testimonies to this committee but also in the meetings we’ve had with them. We are certainly open to look at ways to clarify the concerns.
For example, from the ferry cable operators’ perspective, we need to clarify what is considered a major work and a minor work. Not all ferry cable operators will necessarily be subject to a permit if it does not interfere with navigation. That is really the key of this bill here, as part of CNWA, and whether or not it interferes with navigation. If you think there are ways for us to clarify those definitions, we would be open to consider them, as Minister Garneau indicated.
Senator Simons: You can certainly imagine a situation where they would be impeding the navigation for a few hours to effect a repair, but if it is urgent, to have to go through a whole permitting process would be terribly onerous.
Ms. Pham: With respect to the emergency provision, it is certainly not intended to stop any work if there are emergency repairs needed, either for commercial activities or for social reasons or for security, obviously. That is what is meant in the emergency provision we have now.
Senator Simons: And then about the other things on the project list or not on the project list?
Mr. Lucas: In regard to aquaculture, it is well regulated under other federal regulations under the Fisheries Act. One of the entries in the project list concerns potential works within national wildlife areas, for example, and it is noted as a potential work that would result in an impact assessment should it be proposed within a national wildlife area.
Senator Simons: That would be in a national park, a marine protected area?
Mr. Lucas: The entry specifically that I am referring to is a national wildlife area under the authority of the Canada Wildlife Act. In addition, if it is not consistent with the plan for a marine protected area, or a national park, it would need to be assessed in that context.
Senator Simons: And seismic?
Ms. Tremblay: Seismic is already covered. It is assessed by the offshore board in Newfoundland and Labrador and by the NEB for other sectors.
Senator Mitchell: GBA has received a great deal of attention. A paper was released yesterday, which I think is helpful. Could you comment on how that will be clarified, applied — it has already been applied — so that we can give some clarity to committee members and others about all of that and its importance?
Mr. Hallman: Madam Chair, under Bill C-69, we are shifting from environmental assessment to impact assessment with focus on environment, economic, social and health. Into that comes the gender-based analysis, which really at its core allows us to consider whether some of the potential effects or impacts of a project may disproportionately affect certain groups, such as in the area of housing. If a big project comes into a small town and all of the affordable housing is taken up, what will we do about that? Because some groups will be disproportionately affected by that.
For unemployed or underemployed, there may be impacts that would disproportionately affect them. There may be activities that the province or proponent could undertake or activities that the federal government could undertake as complementary measures.
Gender-based analysis provides a lens through which we look at the effects of some of those other factors to see if some groups may be disproportionately affected, and, therefore, can they be mitigated so that everyone can benefit from the benefits of a project.
Senator Mitchell: It seems no one is disputing the fact we should be considering the social impacts of these projects, and GBA would be a subset of social impacts, in any event; is that not right?
Mr. Hallman: Potentially. Again, it is a lens through which we can look specifically at disproportionate effects. In fact, many provinces and proponents already look at these as well, and Canada has looked at these elements for a long time in terms of policy and projects, including under CEAA 2012. The difference here is that Bill C-69 puts it out in the light of day transparently versus considerations that cabinet ministers may discuss under their cabinet confidence.
Ms. Tremblay: Maybe I could give you a concrete example on how we applied GBA+ in TMX. And, of course, the committee is concerned about the impact of the project on women and children. The fact is that we did this analysis, and the NEB came with very specific conditions for the proponents to mitigate that. The Crown took some more commitment to train Indigenous women, for example, making sure they can have access to the economic benefit of that type of project. In the money that we gave to the Indigenous and monitoring and advisory committee, they formed a subcommittee working specifically on work camps. They will have five work camps, and all the communities involved in this work camp are together with the proponents well in advance, making sure we mitigate all the impacts and making sure that we can have the good and avoid the bad of having a massive entry of workers at the same time in small communities. It is one example of doing this analysis and what can be done.
Mr. Lucas: I would note that it was a consideration in the work undertaken by the Government of Newfoundland and Labrador and the Government of Canada in assessing and ultimately approving the Voisey’s Bay project in the 1990s. They heard the voices of Indigenous women and considered that in taking the relevant decisions under federal and provincial jurisdiction. It has been in place as part of the assessment approach in Newfoundland and Labrador for over a decade, with the antecedents back to Voisey’s Bay, and leading companies build it into their practices, for example, Rio Tinto.
Senator Cordy: Thank you very much for agreeing to fill in the spot here. In Nova Scotia, I met with representatives from the offshore petroleum boards. I am wondering whether or not your department has consulted with the governments of Nova Scotia and Newfoundland as you develop regulations for offshore exploration. I’m not asking for the regulations, just asking whether or not you have done consultations. Because in speaking with them, I heard that under the current system, the assessment for offshore exploration is taking up to two years, and that’s significantly longer than what’s happening in Norway. I think I heard in Norway it is three months.
I wonder how we balance the exploration and the environmental concerns but that we are able to do it in a more timely way. I’m not suggesting that we skip any steps, but is there a way do this faster while ensuring that the interests of environment and industry are taken into account? I’m wondering if you’ve had discussions or consultation with Nova Scotia and Newfoundland for offshore development?
Ms. Tremblay: Thank you for the question, senator. We’ve consulted with the offshore boards numerous times, as well as the provinces. Since this is an area of shared jurisdiction, the federal government, the offshore boards and the provinces have a legal obligation to work together to come up with joint recommendations to expedite the process.
The agency is also working on a regional impact assessment with the agreement of the province and the proponents of a project in Bay du Nord. That means the first activity will be subject to assessment, with the others being exempted from the impact assessment. That will speed up the process so that things can move more quickly and investments can be made.
Mr. Hallman: As my colleague indicated, we are working with Newfoundland and NRCan right now on a regional assessment for the Newfoundland offshore. We are interested in doing the same with Nova Scotia. The project list discussion paper that came out yesterday, as hinted at in the discussion paper of a year ago, proposes that offshore exploratory projects for which there is a regional assessment in place and for which that project meets the conditions in the regional assessment would be excluded from the need to be assessed under the Impact Assessment Act.
Senator Woo: Thank you, officials. We know you’ve been working hard on this, and we appreciate your diligence.
Since your last appearance at this committee, there has been a lot of sometimes conflicting testimony on the nature of clock-stopping. I wonder if Mr. Hallman could reprise for us again the differences in clock-stopping between the current regime and as proposed under Bill C-69.
Mr. Hallman: Under CEEA 2012, the legislated timeline that officials have to do their work, independent of whatever time a proponent may need to do theirs, the 365-day clock for us, gets paused when we have an information request of the proponent, and it starts again when they provide that information. What we are proposing in our approach going forward under the new regime is that we would not do that anymore. We would limit the ability to suspend the legal timeline to three cases, all of which are proponent-driven, not driven by officials.
Senator Woo: Okay.
Mr. Hallman: The first case where a timeline could be suspended is if the proponent asks for it, for whatever reason. Market prices have changed, so we are not proceeding right now, whatever.
The second one is if the proponent does a major design change to their project midstream and needs to regroup, and we need to regroup and engage people on what that means and whether there are issues that need to be contemplated.
The third is if they have not paid their bill for recoverable debts owed to the Crown.
Those are the only three criteria going forward that we would intend and be authorized under our policies and regulations to suspend the timeline.
Senator Woo: Could I ask for your opinion, to the extent that the proponent does not ask for these extensions, all proponent-driven as you’ve described, would you expect that the timeline under the current bill would be shorter or longer than under the current regime?
Mr. Hallman: There are two parts to that, senator. One is that the legislated timeline will be shorter, as prescribed in the legislation, and 365 days goes down to 300 for an agency-led EA. Review panel timelines would be shortened as well. But I believe you are probably talking about overall calendar days, and that’s what proponents often ask for as well. Fair enough. We expect that would be shorter and here is why.
First of all, if we do early planning right and respond to the things that proponents have told us over the last number of years: Tell us what you need us to do and we will do it. Get to the table with us and Indigenous groups so we can all work together. Get your act together, Canada, and align with the provinces so we don’t have to have multiple processes. Get a permitting plan so that once the single window of EA closes, all the regulatory windows don’t open up and we are back to square one. Early planning is intended to do that. If we do that well — and we believe it is in proponents’ best interests to work well with us — then we expect much fewer information requests and less complex information requests in the assessment phase, and the overall timeline will be reduced.
Senator Woo: I have a question for Mr. Lucas. If there is not enough time, we can do a second round. I would like to understand the operation of clause 17 and how you envisage it happening. This is where a minister exercises his or her right to say that a project is not going to be subject to review. Some proponents actually like having this provision because it allows them to take something off the table early on, but only if it is done early on. Can you give us a sense of how you think this might be operational?
Mr. Lucas: Certainly. I will first just comment on the question that President Hallman responded to. One of the critical aspects of the proposed new act is that, in addition to the agency, federal authorities or, in the case of a project that involves a life cycle regulator such as Canadian energy regulator, they are involved are the start. Those officials will need to be involved, working closely with the agency to ensure that their considerations both insofar as it touches on the review and, subsequently, permitting are brought to light and are considered in the work of early planning, manifested in the tailored guidelines and the other products of early planning that Ron referred to.
In that regard, clause 17 indicates that the federal authorities, such as my department, Environment and Climate Change Canada, have an obligation to inform the minister if they will not be able to issue a permit or some other fundamental reason that would ultimately stop a project, for example, going through an area of critical protected habitat. This additional step creates upfront clarity that there are no fundamental issues that would preclude a project going ahead such that it may in one case get positive outcome in an environmental assessment decision only to be blocked by a permitting decision subsequently.
In the house, the bill was amended to remove the minister’s ability to stop a project. So clause 17 just requires the minister to inform a proponent in writing if there are any reasons why the project could not proceed under areas of federal jurisdiction.
Senator Woo: Thank you.
Senator LaBoucane-Benson: I want to go back to GBA analysis, if I could. I’ve been waiting for this document for quite a while. I spent a bit of time in January meeting with proponents, particularly people like Cenovus and those kinds of organizations, and we were talking about GBA. Most of the time I heard that they already do that and it is part of their practice already. We were talking about work camps. I am from Alberta. I have family that have lived in work camps and I have nieces and nephews who have been there or whose partners have been there. Talking about work camps can be interesting, but we know that there are some of really good work camps out there. There are some best practices that we know about, and there are some not-so-good work camps out there and things that happen in work camps that put people at risk. So the idea of GBA, especially when talking about vulnerable populations, is important. People already do it.
One of the things that I have a concern with is that I think we could get into the same issue as a duty to consult, where if there isn’t a good consultation plan with First Nations people in the pre-planning phase, it’s kind of left up in the air and nobody really knows if they are going to accomplish what they need to do at the end. I love the pre-planning phase. It makes a lot of sense. Will you get that granular with the GBA? We’ve been asked, “Will there will be a checklist so that we know we have done our analysis to the best of our ability and to the expectations of the Crown so that this isn’t something where, at the very last moment, the rug can be pulled out from underneath us?” They really want to know what it is. This document helps, but I’m not sure it is the checklist they are looking for. Can you comment on that?
Mr. Hallman: Thank you. Madam Chair, first of all, yes, we do want to get those issues on the table early. We want them on the table in the early planning as identified by the relevant communities so that we can have a more complete and rigorous assessment of those potential effects and create the right opportunities early on for effective engagement, either with Indigenous groups or with the local community through the public consultation. The benefit of doing that early is that whether it is the proponent, the province, Canada or whoever has a relevant role for a particular issue, they can identify those mitigations and we can provide relevant evidence to support decision-making about public interest.
Even if, for example, some of the potential occurrences that the senator was alluding to have nothing to do with federal jurisdiction, it is of interest to federal decision-makers to know that the province and the police force in the jurisdiction have awareness plans and contingencies in place that are built into the provincial licensing certificate. That is good for all decision-makers to know as they are forming their views on the public interests.
Senator LaBoucane-Benson: Will those checklists be measurable? This is what I am getting to. Will it be clear and measurable so that, at the end of the game, we actually know if it has been accomplished, as opposed to abstract?
Mr. Hallman: It is hard to answer that very directly without a particular case, but I will say the expectation is that there will be detailed guidance to proponents in their tailored guidelines, tailored to reflect what the communities or the potentially impacted groups have said during that early planning stage. There will be detailed guidance for the proponents saying what we need them to do. And, by the way, some of it may not be on the proponents. Some of it may be on us.
Senator LaBoucane-Benson: Oh, I know.
Mr. Hallman: Some of it may be on us to find from other jurisdictions or expert federal departments. That will be in the tailored guidelines so that everybody knows what is planned, and those guidelines will be consulted on.
Senator LaBoucane-Benson: Thank you.
Senator Carignan: My question has to do with emergencies. I’m trying to figure out the process so that projects aren’t delayed when an emergency arises. Sections 84 and 91 of the Impact Assessment Act are quite clear about that. Sections 82 and 83 do not apply to an authority in respect of a project in certain cases, including when national security is involved. In addition, further to paragraph 91(c), the sections do not apply in respect of a project that is to be carried out in response to an emergency, and the carrying out of the project without delays is in the interest of preventing damage to property or the environment or is in the interest of public health or safety.
An emergency covers only the cases set out in sections 82 and 83. I found another spot in the act, section 115, that refers to the issuing of an order in an emergency. However, it’s not always practical to wait for an order to be issued in an emergency. Take, for example, the current floods and the dike that gave way in Sainte-Marthe-sur-le-Lac. That is certainly an emergency. Is there a way to avoid having to go through the usual channels to obtain approval in an emergency for projects not carried out on federal lands? Section 91 applies only to federal lands and airports. It doesn’t necessarily cover situations like the dike giving way in Sainte-Marthe-sur-le-Lac.
Christine Loth-Bown, Vice-President, External Relations and Strategic Policy, Canadian Environmental Assessment Agency: With respect to the ability to exempt projects for reasons of national security, that exists currently under CEAA 2012 as well. Examples of that would be with respect to the Department of National Defence and certain project areas that, for site reasons, needed to be protected for security, would not be able to publicly undergo any type of assessment process.
Exemptions also need to exist for things like natural disasters and things that happen where action needs to be taken quickly and environmental impact assessment would impede the ability to take action quickly in order to be able to construct certain things that would respond to said natural disaster.
That’s why that exemption exists. It is rarely used. I can think of examples prior to CEEA 2012 when it was used, but in those days we actually covered a lot more projects. They were used in Newfoundland and Labrador, for example during floods.
Senator Carignan: It’s not included in this bill.
Ms. Loth-Bown: It’s included in the existing legislation, yes.
Senator Carignan: What is there in the bill?
Ms. Loth-Bown: There is section 115 of the act.
Senator Carignan: It’s in section 115, then?
Ms. Loth-Bown: Yes.
Senator Carignan: It says that the minister may, by order, exclude a designated project from the application of the act. Isn’t that a bit cumbersome?
Ms. Loth-Bown: Sorry, I didn’t quite get that.
Senator Carignan: Isn’t it cumbersome to obtain an order in council, or does it happen fairly quickly, within a few hours?
The Chair: I understood them to say it is already there and has been since 2012.
Senator Carignan: I know. I just want to make sure that the process to obtain this authorization is fast and not something complicated with publication and the type of procedure that will take time. I want to make sure it is something that’s very quick.
Mr. Hallman: An OIC can be done fairly quickly. It does not have to be cumbersome.
Ms. Pham: Part 3 of the bill, which deals with the Act respecting the protection of navigation in Canadian navigable waters, also contains a provision that addresses emergencies. Further to that provision, the Minister of Transport may issue an order orally. Of course, all the paperwork has to be done in an orderly manner, but an oral order is acceptable for this part of the bill.
Senator Carignan: Thank you.
Senator Saint-Germain: I’d like to follow up on the matter of the order, because it’s important. Would you mind briefly explaining the process to convene the required decision-makers? A ministerial order can be issued under the authority of the minister fairly quickly, but when cabinet is involved, how does it work? Could you tell us what the time frames are for emergency cabinet meetings and how many ministers are necessary for quorum? How many ministers are needed for the government to issue an order in an emergency and how long does it take? Can it be done in less than 24 hours, or does it take longer?
Mr. Lucas: I believe two ministers have to sign the order, and it can be done almost immediately. It doesn’t necessarily require a meeting. The government can respond quickly in an emergency to ensure public health and safety.
Senator Saint-Germain: It can be done via a phone call with a meeting of five ministers, if memory serves me correctly, and it can happen in under 24 hours. Thank you.
Senator Simons: When we were in Winnipeg on our hearings, we heard from the Canada West Foundation, who have done a lot of work on this bill, who raised what was then a fairly new concern. They have issued a report about it today. This refers to clause 65(2), and I’ll sort of paraphrase what they say here.
They are saying that 65(2) introduces a new wrinkle because it states that not only must the decision be based on the agency’s report, but that the Governor-in-Council must also consider and demonstrate in writing that it has considered the five public interest factors listed in clause 63. The Canada West Foundation argues that this is new, different and problematic because it obliges the Governor-in-Council to second-guess the regulator’s determination. They say that the GIC can no longer merely rely on the regulator’s report and recommendation. They raise a concern that, in so doing, the act undermines previous jurisprudence. They point to the Federal Court of Appeal’s decisions in Northern Gateway and Trans Mountain, which determined that a GIC decision wasn’t challengeable because the GIC was relying on the regulator’s report. Their argument is that if you now ask of GIC that they prepare their own report in response to the public interest factors, they would no longer be able to say they decided based on what SERA said. Now they have to do our own analysis, and that would be more challengeable in litigation. I wondered what you think of the Canada West Foundation’s argument on 65(2).
Ms. Tremblay: On the jurisprudence issue, we believe that all administrative law principles established by the court will continue to apply to relevant institutions, including the Canadian Energy Regulator, and under —
Senator Simons: This is a different argument though.
Ms. Tremblay: We believe there is jurisprudence, and all that has been established under the NEB and the different kinds of cases will continue to apply in the new energy regulator.
Senator Simons: This is a different issue. Martha Hall Findlay raised a concern that if you changed the NEB to SERA, the NEB jurisprudence doesn’t apply. This is a subtle but importantly different issue. This has to do with the Governor-in-Council’s decision at the end of a process. They are arguing that in the previous regime, the cabinet could rely on the regulator’s assessment and say that based on the regulator’s assessment, a decision was made. They are now arguing that 65(2) introduces an entirely new test, which is that the Governor-in-Council must prepare their own written report about whether or not the project meets the public interest tests as set out in clause 63. Now, I’m not a lawyer, but I need to understand whether there is any validity to their concern specifically about that clause.
Mr. Lucas: I would note that clause 63, as well as in, I think, clause 60, specifically indicates that the decision that the Governor-in-Council — or in the earlier section, the minister — would take is based on the report.
Senator Simons: Right.
Mr. Lucas: Unequivocal. In 65(2), it again enumerates that it must be based on the determination of the report. The purpose of this clause here is to provide transparency on how they consider the report. It’s not to generate a new report. It’s just to provide those reasons for a decision, which right now is a black box in terms of how the government considered it. It provides for transparency, but it is clearly based on the report provided to the minister or through the minister and provided to the Governor-in-Council as the fundamental basis for the decision.
Senator Mitchell: I’ll make one brief statement in response to Mr. Hallman’s response to Senator Woo. It’s interesting that you discussed the issue of the three reasons why something could be delayed or suspended, all in control by the proponent. It used to be four, in the first paper. It’s a direct response to pressure and concern that it was reduced to three.
Mr. Hallman: That is correct. Thank you for mentioning that, senator. The initial discussion paper that came out a year ago suggested that there would be a fourth criteria, if there is critical information missing, which is something that we do right now, but proponents asked what that meant. A lot of people asked what that meant. If it’s that critical, why didn’t you get it in the early planning? We thought that was a fair question. If we’re going to put the onus on expert federal departments, life cycle regulators, proponents, Indigenous peoples, communities, to participate and work intensely in that 180-day period up front, then the grand bargain for that is we expect that all of the critical information requirements will have been identified early, and yes, we will hold proponents to account to provide that information and it will be in their best interest to do so, but we don’t think we will need to stop the clock for that.
Senator Mitchell: So evidence of response, streamlining and clarification. Thank you.
My next question is to Ms. Pham from transport. I would like to pursue a specific question about navigable waters, I’m literally getting into the weeds like those in some of those navigable waters. That’s the question of the change to emergency provisions that have concerned some, in particular municipal authorities, where it’s gone from being broad to including social issues that might arise because of an emergency to more national security issues, which are important, of course, but are more specific and might exclude other things that should be viewed as an emergency, making for a quicker response.
Ms. Pham: Thank you very much, senator. The reason why, under CNWA, we changed the wording for emergency situations was to align with the definition of what is considered an emergency under the national security bills and legislation. It is certainly not meant to exclude certain situations around the necessity, for example, to move some critical goods to market, or for social reasons or for public security reasons. Therefore, we will clarify that, but it is certainly not the intent under CNWA to be excluding and restricting what is considered emergency. It was purely that the definition of emergency can be aligned with what is defined as an emergency in national security bills as well.
Senator Mitchell: Thank you.
Senator McCoy: Am I substituted now for Senator LaBoucane-Benson?
The Chair: No. She is coming back.
Senator McCoy: All right. I thought she had asked me to substitute for her in the event that she didn’t come back, Madam Chair, so if she doesn’t come back, I would be appreciative of being a substitute.
The Chair: Senator McCoy, ask your question.
Senator McCoy: I am substituted for Senator McCallum, I am told, so I am a member of the committee today.
The Chair: Could you ask your question?
Senator McCoy: Yes, but I was hoping to encourage you to recognize me as a member.
The Chair: Okay. Just to clarify, Senator LaBoucane-Benson has come back, and Senator Saint-Germain is replacing Senator McCallum.
Senator McCoy: I’m sorry, I was misinformed, or my staff was.
Senator Seidman: That’s my fault.
The Chair: Senator McCoy, you can proceed.
Senator McCoy: I can still ask a question. It’s all very complicated. I have two questions. One was a follow-up, and I would have asked it as supplementary to Senator Woo’s earlier question about suspension of timelines. When you said suspension of timelines, is that a synonym for extension of timelines?
Mr. Hallman: No, there is a distinction between the two. That is a good question. Suspension of the timeline refers to what some people put in air quotes as “pausing the clock” on the legislated timeline, which is 365 days for agency-led ones under the current legislation. An extension means a minister or cabinet could extend the timeline beyond the 365 days.
Senator McCoy: I’m sorry. I did not stay up later than midnight, so I didn’t read your new discussion document on timelines last night, so forgive me for that. Are there guidelines for cabinet and ministerial exercise of their discretion to extend timelines?
Mr. Hallman: For any extension by the minister or the cabinet, there would be a requirement to publicly post on the agency’s registry the reason for that extension and how long the extension is.
Senator McCoy: But there are no criteria restricting that exercise?
Mr. Hallman: It would generally be, in previous examples, Chair, if we were working with a province to align on approaches to mitigation, et cetera. That would be the type of reason.
Senator McCoy: I have a second question just for clarity. One tends to forget. It is so easy to say we will only focus on matters within federal jurisdiction. It is a succinct phrase, and so often we fall into the habit of thinking we know what that means. For the record, perhaps you could just rhyme off all the reasons. What is the list of reasons why there is federal jurisdiction? There are migratory birds and we understand that, and there are fisheries, but there are more. Could you just give us the list?
Mr. Hallman: The areas of federal jurisdiction of interest would include fish and fish habitat, aquatic species at risk, migratory birds, changes to the environment on federal lands, including First Nation reserve lands, trans-boundary effects such as GHGs and air quality, and environmental effects arising from federally regulated project types like nuclear, rail, ports, airports, interprovincial pipelines and offshore energy.
Senator McCoy: Air pollution would be regulated in the federal jurisdiction as well? And hazardous materials would be? Are there other categories? It is quite broad.
Mr. Lucas: I was just going to note the Canadian Environmental Protection Act does address a number of areas, from toxic substances, for example, to air and greenhouse gases. Through Supreme Court decisions, as the minister noted, the federal role in there, often shared with provinces, has been upheld.
Senator McCoy: Yes, so you really do have quite a broad arena, if I can, in effect, call it that, in which federal jurisdiction has been upheld and you would exercise. It is not a narrow definition.
Mr. Lucas: But it is an enumerated area as defined by the statutes and subsequent interpretation and clarification by the courts.
Senator McCoy: Thank you.
The Chair: We will now continue with the list of senators wanting to ask questions of the minister.
Senator Eaton: Welcome back, minister. In your brief to us today, you talked about ministerial discretion and it allowed for a clear and direct line of sight. Are you the only minister involved in that, or is it a bit like the way we do military procurement where there are five ministers that are very much involved in any major military procurement?
Ms. McKenna: Thank you very much for the question.
I apologize. Unfortunately, the opposition triggered another vote that was unexpected, so that is why I was late.
I noted in my opening remarks there are concerns about ministerial discretion. Let me explain. First of all, we are not making significant changes to the system as enacted by the previous Conservative government in terms of decision-making and discretionary powers. We did hear that the final decisions should rest with elected, accountable ministers.
Right now, let’s be clear that the big distinction on discretion, which I think is extremely important to understand, is that under Bill C-69, when the minister exercises a power, or cabinet, as it may be, the rationale must be made public and posted online for the decision. That’s extremely important, because I’ve lived these decisions where you make a decision and then you are trying to explain how you made the decision under the current regime by the previous government through a press release. That’s not transparent. It is extremely challenging.
Senator Eaton: You have set up this wonderful mechanism with these very important consultations with Indigenous people, who will be involved and who will feel the impact. At the same time, you have politicized it, because no matter what comes back from these consultations, you yourself— and not a board — will have the power to say yes, no or delay.
Ms. McKenna: The discretionary power was much broader under the current regime and, to the extent I believe it was politicized by the previous government, there was no transparency of decision-making and decisions were simply announced.
Senator Eaton: What does that have to do with this bill?
Ms. McKenna: In this bill, we have addressed that concern. We do believe, at the end of the day, after hearing from Canadians, that we were elected and the final decision should be made by elected, accountable ministers. That’s consistent with the way provinces have approached environmental assessments. The decisions now have to be based on the factors and the impact assessment report, and they need to be made in a transparent way so that the public can actually see the basis for the decisions.
Senator Eaton: Thank you.
Senator Woo: Chair, I want to give my time to colleagues from the opposition. There is not much time for the minister to appear here, so I would like others to take that time.
Senator Patterson: Thank you, minister. Mick Dilger, President and CEO of Pembina Pipelines, told this committee in a recent hearing that no new major pipelines will be built in Canada under Bill C-69. He said it will make us the laughing stock of the world. Al Monaco, the President and CEO of Enbridge, told this committee recently that any company that prudently assesses risk will not invest capital under this framework. These are the leaders of two of Canada’s largest pipeline companies. We have heard similar comments from ATCO and TransCanada.
Regardless of your claims on investment, this is what actual investors are saying. They are the ones with the money. I guess I would like to ask you if you are concerned by these comments and others we’ve heard that no new major pipelines will be built under Bill C-69 as drafted.
Ms. McKenna: Thank you for the question. I am concerned about the current situation. We have not been able to build pipelines because the current process does not work. The current process does not properly consult with folks or allow for consultation. The current process does not bring people together at the beginning with an early engagement process.
Look at where we are with the Trans Mountain expansion. Let’s be clear — the Trans Mountain expansion is not under Bill C-69. I often hear some link with Bill C-69 and the Trans Mountain expansion. The Trans Mountain expansion and the challenges we have — which would have been addressed, I feel confident, under Bill C-69 and we would be in a different situation — were under the previous legislation and the previous government.
I hear you. We listened for three years to folks from across the country, from Canadians, from Indigenous peoples, from industry, from the mining association, from all sorts of people. As I say, what did people want? They wanted certainty. I get it.
I don’t know if many of you know this, but I worked in Indonesia and I worked in oil and gas law at a corporate law firm. I worked in East Timor with the United Nations where I worked on oil and gas projects. I understand that we are competing with the world for investment dollars. I also understand the need for certainty in a system and I understand that it is really bad if we end up in court every single time and we are in a situation where we can’t get our resources to market.
As I say, we are very happy to hear amendments that will build a better system. I totally agree. As for our government, we need a better system. But we believe we have responded to the concerns we’ve heard across the board. We need to respond to concerns of everyone, not just the pipeline association and others. We need to respond to concerns.
Look at what we’ve done. Early engagement is going to make things a lot better. We will have tailored impact statement guidelines, providing more certainty about what is required. We will have an Indigenous consultation plan. I heard from industry. They said they need to understand what we are going to do in terms of Indigenous consultation. Cooperation with provinces — one project, one review, which we sometimes don’t have the ability to do right now, which makes no sense. We need to be working with provinces. A permitting plan so that you can show your investors we know what we need to do. If there are any red flags, there are flags that are there initially so we can figure out how to do better. A public participation plan.
These are all good things that will get us to a better spot, which will ensure that good projects can go ahead in a sustainable way, that Canadians can have confidence in our system, that international investors who are looking at Canada right now and thinking we are a great country but we need to have a system. That’s why I think it is so important that we get this right, but we also need to get this legislation passed to provide the certainty that business wants. That’s what business wants. They want certainty of process. They want predictable timelines. They want to know that we are bringing people together, and they want to know that they will not always end up in court and not able to get good projects to go ahead.
Senator Patterson: Minister, putting aside the spokespersons for industry, we heard from Jason Kenney today, and the Legislative Assembly of Saskatchewan voted unanimously to call in your government to withdraw the bill. The premier of New Brunswick said it is a no-pipeline bill. The governments of Manitoba, Ontario, Quebec and Newfoundland are asking for substantial amendments. Would you accept that there is a cross-party consensus from provincial governments that there are major problems with Bill C-69?
You know, we are on a very tight timeframe to work on amendments within the next couple of weeks. Do you agree that the Senate should make major amendments to Bill C-69 to address the serious concerns of our provinces?
Ms. McKenna: As we’ve been repeating, we are happy to consider amendments that establish better rules and that ensure that good projects can go ahead in a timely way while protecting the environment. That’s our hope. Our hope is to work with the Senate. We believe in this process. I think it is really important that the Senate understand that the world is watching, and we need to have some certainty to this. We need to have new legislation that is better and that enables good projects to go ahead.
I’m very hopeful, but I think it is also really important that it is now three years in. We brought in interim principles in 2016. This was a key commitment of our government to introduce better rules for all Canadians so that we could attract investments, protect our environment, make decisions based on science and evidence, and so that good projects can go ahead in a timely way. I certainly appreciate the effort of the Senate, listening to a number of folks that we’ve also heard from, and I hope we can move forward together. We are happy to consider amendments that will improve Bill C-69.
Senator Mockler: Minister, I have two quick questions, and I hope you won’t respond with the rhetoric-driven line “under the previous Conservative government” and that you will take certain things into account when looking at your objectives.
When you say that the world is watching. I can tell you, we went across Canada, from coast to coast, and believe you me, with my 36 years in politics, I can tell you that Canadians are watching too. I want to bring to your attention that I was at a union’s — my question is coming, if you permit me, and it is not a laughable matter. The moderator was Mr. Frank McKenna, ambassador — I guess we all know him, he is very credible — and he said as he travels the world and people tell him and I quote: Canada is being seen not to put money in because of uncertainty and because of Bill C-69. Mr. Sohi was present, and I will quote him. He said he acknowledged that we have a lack of pipeline capacity in Canada.
Now, my question to you is, with the Trans Mountain — and I hope that we succeed as a nation-building project. My question to you, minister, is with Trans Mountain, ministers have told us that the government has gone — and you alluded to it — through extensive consultation process and efforts on Trans Mountain. Will this process that is now with Trans Mountain become the new norm for all future projects across Canada?
Ms. McKenna: Thank you for your question. In terms of the Trans Mountain expansion, we are following exactly what the court requires in terms of accommodating and mitigating. That is the law. We are following what the law of the land says.
In terms of investment, maybe I will just repeat what I said. I have great respect for Frank McKenna, and he has a really good last name, especially. We need to attract investment, but the challenge right now — and I’ve said this previously — is that the bill that was brought in previously, not by our government, that we are working under right now is not able to get good projects to go ahead in many cases because of a number of different factors, including the lack of early engagement with Indigenous peoples. It sets up a binary place where you have people fighting each other. That is not a recipe for success, for certainty or for attracting investment. We are squarely focused on having a system that works and that does what it is intended to do. Of course, looking at the impacts on the environment and what we are required by law in terms of consultation and accommodation with Indigenous peoples, but going beyond because we want Indigenous peoples to be part of good projects and to benefit and to succeed. That’s good for our country.
That’s why we believe the process that we have is achieving that, to the extent there are ways that we can all work together to do a better job, while meeting our constitutional requirements and our aim to foster reconciliation and get to a better spot. We are certainly willing to consider that.
Senator Mockler: Minister, we’ve heard that there is an inventory that indicates there are more than 400 resource projects either already started or planned over the next decade in Canada, with a combined value — and Senator Patterson alluded to it and it was said by the ministers — worth $585 billion. Could you give us the breakdown of that, and what is the breakdown of those projects for Atlantic Canada?
Ms. McKenna: Those are projects that are not in the system. Those are projects that are proposed, based on estimates. I would love it to be more. I think it is good that we have opportunities —
Senator Mockler: I am asking you for specifics.
Ms. McKenna: Maybe I will ask the deputy from NRCan. She can probably give you a better answer on that.
The Chair: Earlier, you promised that you would send that list, so I think, in the interests of time, we need to move on.
Senator D. Black: Minister, thank you for being here. Let me say initially that I certainly do not question the good-natured intent of this legislation or you or your officials. I clearly question the execution.
I want to just take a little walk down memory lane. I was a member of the Finance Committee when your colleague Minister Morneau proposed sweeping small business tax changes, and we know how that all kind of worked out. I had the opportunity to ask him the very question two years ago that I am going to ask you. It is funny about that. I said to him, “Minister, how is it possible that after you say three years of consultations, your officials outlined yesterday thousands of consultations, we’re in a situation where eight governments and three territories, business, natural resource business and otherwise — think Dave McKay, chairman and CEO of the Royal Bank — unions, many First Nations, almost all think tanks are completely aligned against this legislation as it stands?” And this is after the consultation.
I had the privilege of chairing the Standing Senate Committee on Banking, Trade and Commerce and we had Governor Poloz before us yesterday. I will tell you what he said. He is unhappy with the economic performance of the country at this time. He has downgraded in the last two or three weeks his estimates around economic performance in the country. He said in large part that’s tied to the declining natural resource industry because there is no certainty.
So how can this consultation, which has led us to this place today — Governor Poloz’s comments, the hollowing out of the natural resource industry, particularly the oil and gas industry — possibly be good for First Nations who are trying to break the cycle of poverty that we have heard about? How can it be good for Canada? And how can it be good for the middle class who are the very folks who are losing jobs? This is what concerns me, and this is what we want to get right.
Ms. McKenna: I absolutely agree with you. We need to get this right. I know I am repeating but, with Trans Mountain expansion, that was under the previous process. I hope we can all agree the previous process did not work in that context.
There are huge challenges in Alberta for the energy sector. I consider myself the Minister of Environment for everyone, including energy workers, and that’s why we worked so hard on this legislation. I know that there are some concerns, and let me tell you that we are trying to find the right place because we also need to protect the environment for future generations. That’s extremely important. We’ve met with many of the folks who have expressed concerns. I think there may be solutions. I know they proposed amendments.
Let’s be clear what we did, because I think it is really important. The changes that were made to CEEA 2012 were made in an omnibus budget bill without any consultation. We have consulted and we’ve listened. And it is not just industry groups who were listened to. We listened to everyone. Indigenous peoples, the AFN, passed a motion at their assembly supporting this bill. We’ve had positive comments from many different stakeholders and even provinces, they’ve said, “Respect provincial jurisdiction,” and we have been very clear that we are only going to look at projects that are within federal jurisdiction. And certainty will come when we all get together, make improvements and pass this legislation so that everyone understands the rules.
I know that you have heard, because I am briefed every day. This is one of my top three priorities. Since we’ve come in, I have three priorities. One is making sure we have a made-in-Canada climate plan with everyone. We have that. We are working hard on that. Sadly, some provinces are backtracking, but we are moving forward because that’s what Canadians expect. Two is expanding parks and protected areas. And three is rebuilding trust in environmental assessments so that good projects can go ahead in a timely fashion while respecting the environment.
The supporters of this bill include many businesses, First Nations, many provinces and communities. And there have also been constructive amendments. We are extremely happy to figure out how we get better rules. We need to get those better rules because the system now is not working.
Senator Wetston: I will be brief. I was not here earlier so I didn’t hear all of your testimony but, minister, one of the areas I’ve been thinking a bit about and you may be able to help us with is that independent regulatory tribunals have always provided stability through long periods of change, particularly in situations where you have changing governments and changing policy direction. One of the rationales for having these independent tribunals is, despite changes in legislation, they provide that stability. As you know, in Canada, we’ve had a lot of stability more or less over 50 years of construction in pipelines, for example, including hydroelectric facilities within provinces.
So, my point is that one of the things I’ve been hearing — and I have some difficulty trying to sort out, given the importance of the issues that you raised today — is how does industry, for example, proponents of projects, address the risk and uncertainty of changes in government policy, which I think might be reflected more recently? I think that’s a very important risk factor that industry and proponents face. Not just industry, but Indigenous groups as well as environmentalists. Any thoughts about that?
Ms. McKenna: Thank you very much, Senator Wetston. I know that you played a very important role in Canada in your role as a regulator.
CEEA 2012 was a change. It was a departure. It was brought in, as I said, through an omnibus bill, and that was a big change. And now we’re looking at what is going on, and I think that we all could agree — and industry agrees with us as well. They would like more timely processes. They would like more certainty from the outset about expectations, all of those issues. We believe that’s what this bill is intended to do.
But I agree with you. Regulators play an extremely important role. That’s why the regime that we have is intended to leverage the expertise and the knowledge of federal life cycle regulators. We had a discussion before because I know a number of senators from Atlantic provinces want to make sure that the offshore petroleum boards have a role. They didn’t have a recognized formal role under CEEA 2012, so we’re reflecting that now under Bill C-69.
Life cycle regulators have a role in regulating all stages of a project, that is from the pre-application and application phase, through construction, operation and then decommissioning through the facility’s useful life. The agency will continue working very closely with the life cycle regulator from the start to ensure we have an integrated process that meets the requirements of the impact assessment act and also the applicable regulatory process. So they will be involved. They will be part of the early planning and the integrated review panels that are assessing the process.