Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue No. 68 - Evidence - April 30, 2019
OTTAWA, Tuesday, April 30, 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 5:04 p.m. to give consideration to the bill.
Senator Rosa Galvez (Chair) in the chair.
[English]
The Chair: Good evening and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Rosa Galvez. I’m a senator from Quebec and I’m the chair of this committee.
I will now ask senators around the table to introduce themselves.
Senator Patterson: Dennis Patterson, senator for Nunavut. Welcome.
Senator Plett: Don Plett, senator for Manitoba.
[Translation]
Senator Carignan: Good evening. Senator Claude Carignan from Quebec.
Senator Mockler: Percy Mockler from New Brunswick.
[English]
Senator Seidman: Judith Seidman, New Brunswick.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
[Translation]
Senator Massicotte: Senator Paul Massicotte from Quebec.
[English]
Senator Richards: David Richards, New Brunswick.
Senator McCoy: Elaine McCoy from Alberta.
Senator McCallum: Senator McCallum from the Barren Lands First Nation, Treaty 10, Manitoba region.
Senator Cordy: I’m Jane Cordy, a senator from Nova Scotia. It’s always nice to have Atlantic Canadians here. Welcome, premier.
Senator Mitchell: Grant Mitchell, Alberta, Territory of Treaty 6.
[Translation]
Senator Pratte: André Pratte from Quebec.
[English]
Senator Woo: Yuen Pau Woo, British Columbia. Welcome, premier.
The Chair: Welcome. I would like to take the opportunity to thank and introduce the Library of Parliament analysts, Sam Banks and Jesse Good, and the clerk of the committee, Maxime Fortin.
Before we officially start the meeting, exceptionally, colleagues, do you agree to authorize Senate communications staff to take pictures, to film excerpts during the meeting and to publish them?
Hon. Senators: Agreed.
The Chair: Thank you.
Colleagues, tonight 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 New Brunswick the Honourable Blaine Higgs, Premier of New Brunswick. He brings with him Louis Leger, Deputy Minister and Chief of Staff, and Nicolle Carlin, Director, Communications.
[Translation]
Thank you very much for joining us. Premier Higgs, I invite you to proceed with your opening statement, after which we will go to a question and answer session. Thank you very much.
[English]
Hon. Blaine Higgs, Premier of New Brunswick: Honourable chair, Rosa Galvez, honourable senators, thank you for this opportunity to appear before your committee tonight to share with you my province’s concerns with Bill C-69.
[Translation]
Thank you for this opportunity to appear before your committee tonight, to share with you my province’s concerns with Bill C-69.
[English]
I wish to applaud your committee for your diligence in studying this critical bill.
[Translation]
I also wish to applaud your committee for your diligence in studying this critical bill.
[English]
You have chosen to reach out in all regions of Canada, an extremely important exercise.
For me, this speaks to the seriousness of the situation and of your appreciation for the real consequences that Bill C-69 could have on Canada’s resource sector, which is so vital to our well-being.
[Translation]
You have chosen to reach out to all regions of Canada. I’m here to affirm my province’s views and share with you my concern for the detrimental impact this bill, as it is now written, could have on New Brunswick’s economy, the Atlantic economy, and on our entire nation’s economy.
[English]
Before proceeding, allow me to say that New Brunswick is dealing with very high water levels, as many of you visited and know firsthand. But that’s not unique to New Brunswick, as we’re seeing in Ontario and Quebec, and it’s causing serious hardship throughout our country and to many of my fellow New Brunswickers as well.
I hope you understand I felt my focus last week was to be there and to be around the province dealing directly with the situation, and I appreciate your diligence and offering me the opportunity here tonight. That is why I wasn’t able to participate last week.
Having said that, my concerns with Bill C-69 remain real and very much a focus. That’s what’s motivating me to be before you today, and I thank you for that accommodation.
I would also like to say that I’m incredibly comforted to know that as senators you are truly fulfilling your responsibilities to study the impact of Bill C-69 on all regions of Canada. I’m sure your understanding of the intricacies of this bill are superior to mine. However, I understand this bill for you and for me is very concerning.
Let me begin by sharing some of the elements and the substance of a formal letter sent under the signature of former Premier Wade MacLauchlan of P.E.I., and on behalf of the Council of Atlantic Premiers to Prime Minister Trudeau on February 27, 2019.
[Translation]
Let me begin by sharing some of the elements and the substance of a formal letter, sent under the signature of former Premier Wade MacLauchlan of PEI and on behalf of the Council of Atlantic Premiers to Prime Minister Trudeau back on February 27, 2019.
[English]
The concerns expressed at the time remain unanswered and troubling because, to my knowledge, the Prime Minister has not yet responded to our collective letter, which I must admit is a concern.
On one hand, there is a view expressed that Bill C-69 would present a real opportunity to improve assessments of resource development projects. There is also a view that Bill C-69, as it stands, represents an unacceptable risk, an unacceptable impediment to Atlantic Canada’s and New Brunswicker’s future prosperity.
I believe Bill C-69 potentially leaves New Brunswick and Atlantic Canada out of the economic opportunities already enjoyed by the rest of Canada, not because of economics, but because of rules. I find this unacceptable.
Regulations, rules and laws of Canada have made it possible to build a complex system of pipelines which have served the interests of Central Canada very well for decades.
However, in Atlantic Canada, we continue to lose by making the approval process for all new projects cumbersome, uncompetitive and unlikely to proceed, thus continuing to render our Atlantic region unconnected. Now, more than ever, we truly need leadership in building a national critical infrastructure in Canada. Unfortunately, we are leaning the other way and making it more difficult.
Canada has extensive pipelines throughout the nation, almost. As a matter of interest, the National Energy Board of Canada regulates over 73,000 kilometres of transmission pipelines throughout Canada. It’s estimated that the entire Canadian pipeline system is over 840,000 kilometres and runs very well and has proven to be safe, reliable and efficient in delivering oil and gas to millions of Canadians.
So why am I raising this? Because there’s one very troubling factor that seems not to be acknowledged. Atlantic Canada is not part of the Canadian pipeline system. Atlantic Canada has no connection to any Canadian pipeline system. All systems stop at our neighbouring province of Quebec. We have one natural gas connection to the United States, so we at least have a connection for natural gas from our neighbour to the south. Thankfully, Americans are very willing to allow pipelines to supply our residents, our companies and our industries because Atlantic Canada cannot access it through our own country.
How can this be?
[Translation]
We have one natural gas connection to the United States. So we at least have a connection for natural gas from our good neighbour to the south.
[English]
As senators, one of your central responsibilities is to defend, protect and advocate for the regions of our great country. I must say, I can’t think of a more relevant subject than national economic interest and the justification to be fair and equitable for all. It’s just not acceptable for the Canadian pipeline system to stop in Quebec. It’s not acceptable for the Parliament of Canada to now adopt a law which will create an impediment that could render any connections with Atlantic Canada practically impossible.
Honourable senators, as I said earlier, back in February in our communication with the Prime Minister, the Council of Atlantic Premiers expressed its shared concerns on Bill C-69. Let me quote elements from our letter to the Prime Minister:
. . . Bill C-69 as it is currently drafted . . . will not meet the dual objectives of environmental protection and economic growth. The Bill is also inconsistent with the joint management principles of the Atlantic Accord Acts and introduces considerable discretion into decision-making processes that should be predictable and science-based.
A particular concern to be addressed is that the Bill as drafted places final decision-making power in the hands of the Minister or Governor in Council and provides the opportunity to veto the results of thorough scientific assessment and review of evidence.
In Atlantic Canada, we have all negatively experienced the political weight of vote-rich Quebec and Ontario in the federal decision-making process.
This will have a significant negative impact for major projects and investment confidence, and this approach should certainly be amended.
We also urge you to adopt the amendments that are proposed by industry and stakeholder groups and governments that are collectively intended to ensure that key items in an assessment are well defined at early stages in the process, and that processes under the act are given appropriate deference.
Ensure that the assessment process is calibrated to exclude short-term projects and activities with proven mitigation strategies, such as offshore exploration wells.
Ensure that the nature and scope of public participation can be clearly established in the assessment process and not left ambiguous and open to challenge.
Ensure that the discretion in the act to extend process timelines is used only in limited circumstances and that reasons are provided for doing so.
Allow positive impacts of projects, including economic impacts, to be considered in assessments. And require cooperation between the impact assessment agency and lifecycle regulators, the Offshore Petroleum Board, the Canadian Energy Regulator and the Canadian Nuclear Safety Commission, in assessment for projects regulated by those regulators, and allow those projects to proceed under any of the process options in the act.
Senators, as you can see, the Council of Atlantic Premiers were united in their concerns. There’s one element that I would like to re-emphasize. It’s the notion that at the end of a process for a major project, the minister or the federal cabinet can decide to override the process simply because they don’t like the conclusion.
I realize it may be an oversimplification, but tell me, what will the power of a minister or federal cabinet be? On what basis can they decide that they don’t like a project? The uncertainty this causes is very significant.
As you know, New Brunswick would have been a terminus of the Energy East pipeline. It’s also clear to me that the immense regulatory uncertainty contributed to ending that nation-building project.
Fundamentally, I believe we need to work together as a country to develop a national utility-energy corridor which is in our nation’s best interest. This will help Western Canada and would take Canada off this road which is only leading to a devaluation of our natural resources and is leaving Western Canada with stranded assets. It’s a lost opportunity and represents a loss of jobs and a negative impact on our prosperity.
In addition, we have the immense loss in tax revenue which pays for services our citizens expect. Bill C-69 would make already stringent processes even more burdensome.
The committee has a tremendous opportunity to ensure that Canadians have a framework that provides environmental sustainability along with economic progress. The two concepts are not mutually exclusive.
Let me be frank: This bill, in its current form, is an impediment to investment in New Brunswick, in Atlantic Canada and in Canada’s energy sector. I have spent months hearing from community leaders, business leaders and individuals from all walks of life. It’s very hard not to conclude that this bill is a no-pipeline bill.
Another key sector in New Brunswick that could be impacted is the aquaculture sector. There is a concern that the new impact assessment act would go beyond environmental considerations. Aquaculture industry participants are worried that any aquaculture project would trigger an impact assessment, thereby increasing regulatory burdens and costs.
Another key component is to do with Indigenous consultation and traditional knowledge. The lack of clarity is beneficial for no one, including Indigenous communities and private sector proponents.
New Brunswick needs clear processes that address our concerns, while accelerating important projects and providing appropriate assurances to project proponents that they will be treated fairly.
Last week, you also heard from Brett Plummer, Vice President Nuclear and Chief Nuclear Officer for NB Power. Mr. Plummer rightly pointed out that nuclear, renewables, hydrogen generation and smart grid will continue to play an essential role in meeting New Brunswick’s commitment and energy needs. Small modular reactors represent a unique opportunity for our province’s economy but also to contributing to decarbonization.
But the unpredictability of timelines, coupled with the phaseout of the highly capable Canadian Nuclear Safety Commission, represents a double threat, a missed economic opportunity and a missed environmental opportunity.
I was also made aware of the presentation made to you by Arlene Dunn, Director of Canada’s Building Trade Unions, and I noted the following:
Proponents need to know what the rules are going in. Any rational assessment process needs to define at the earliest possible stage what is essential to the assessment and proper consideration be given the processes. Political and policy decisions should be taken away from the review process.
Again, I share their views fully. My government’s reservations about this bill, as I’ve outlined, are obviously not unique and, indeed, there is enough well-founded criticism of this bill to compel you to either change it dramatically or not to proceed.
To close, a well-known bank robber was once asked why he was targeting banks. His answer was simple: That’s where the money is.
[Translation]
Which leads to the next question: Why were some of Canada’s current largest banks founded in the Maritimes? Because that is where the money was before Confederation. We supported the building of the St. Lawrence Seaway at the disadvantage of Atlantic Canada.
[English]
Imagine the kind of booming ports we would have if the only way out was our Maritime ports. How would other provinces feel if we took a position that you can’t send your resources through them?
[Translation]
It would never have happened because as Maritimers, we simply don’t think that way. It was the right thing to do then to strengthen our nation.
[English]
And it’s the right thing to do now to consider the implications of something that will continue to strengthen our nation.
[Translation]
Atlantic Canada and New Brunswick want to participate fully in the Canadian economy.
[English]
And as the head of Canada’s largest bank, Royal Bank of Canada CEO Dave McKay, recently said at their annual general meeting in Halifax, where they were founded in 1864:
. . . we’re at a critical time in our country’s history. . . . Our competitiveness is challenged. Our capacity to grow and advance our economy is stalling. . . . We need a new approach.
He also said:
Investment in energy is critical to ensuring Canada remains prosperous for now, and generations to come. . . . Canada has lost $100 billion in energy projects in the last two years alone. We simply can’t afford to lose any more.
So what does all this mean? I put forward that what matters here is what is at stake, and if we get this bill wrong it will magnify the problem. I appeal to all of you, as senators from Atlantic Canada, to join forces with senators from Western and Central Canada to speak against this bill, which will hurt the Atlantic region.
[Translation]
Honourable senators, thank you for your consideration.
[English]
Thank you, also, for the time you have afforded me. You have a very unique opportunity to do what you are here to do as senators, which is to protect all regions of Canada as the Fathers of Confederation intended in the BNA Act. Without you, it has been proven that we have no other voice. This is indeed a time for senators to be senators.
[Translation]
I implore you to either substantially amend or delay this bill. I appreciate the opportunity to convey New Brunswick’s position.
[English]
I welcome any questions and an opportunity to explain my position further. Thank you very much.
[Translation]
The Chair: Thank you, Premier Higgs. Let’s move on to questions.
[English]
Senator Cordy: Thank you. Premier, do you think Bill C-69 should be gutted and killed, or do you think it should be amended and changed?
Mr. Higgs: Given the uncertainty and ambiguity in the entire bill, I think it needs to be sent back to the drawing board. There are so many unknowns that leave it to subjectivity and, ultimately, uncertainty for any investors. Right now, we need to have a period of certainty in our country. We need to have investors look at us as a place they want to be involved with.
I think we’ve gotten ourselves to a point where investors are, as was quoted here earlier in my talk, looking elsewhere. We’ve seen it in New Brunswick. We’ve seen it across the country. I think it needs to be sent back to the drawing board and we shouldn’t be concerned about a timeline of an election. We should be concerned about a timeline to get it right.
Senator Cordy: Do you think it’s better than CEAA 2012, which was part of an omnibus bill that had no consultation? There was no consultation because it was part of the budget bill. I know that you spoke in your remarks today about the power of the minister to delay or to halt things. This is a change from CEAA 2012. In CEAA 2012, the budget bill, the minister could stop a project for 180 days. In this new bill, the project can be stopped for 90 days and the minister must make public the rationale for the delay, which was not in the previous legislation.
Is that not an improvement? The delay is shorter and the minister still has responsibility. Actually, the minister didn’t have that responsibility until 2012. It’s a shorter period of time and the rationale must be public.
Mr. Higgs: I guess in the true sense of the word one can argue there is an improvement, but if we look at our history of big projects in the country, we’ve been having great difficulty. Here this has been touted as a bill of certainty that will really allow investors to look at Canada and say that this is what’s required for investment. It doesn’t do that.
If we’re trying to make an effort here to lay out the ground rules in which New Brunswick or any province in the country can accept investment, then it should be clear. When I mentioned about talking to investors or industry leaders, what I’m gathering from the theme of many of the presentations, the clarity is not there. Why not go the next step? If we’re establishing the right criteria around the decision-making process, why does it need a built-in political discretion if all of the criteria are defined in advance? It’s something like in the discussion around a corridor. If the criteria on which you can build and work in a corridor across the country was clear, then we could get from one province to another and provinces would take over in their own right after you’re there.
I think that in the clarity and how it’s being portrayed, at least politically, as a bill of certainty to allow investment to go forward, I think it misses the mark.
Senator Cordy: You spoke about delay or uncertainty, and we’ve heard about uncertainty before for the investment sector. If we send the bill back to the drawing board and it’s another two years before it comes back to us — realistically speaking, it wouldn’t start until 2020 — would that not create a much longer period of uncertainty rather than trying to amend the bill and make it acceptable?
Mr. Higgs: If you’re getting enough clarity through this process to actually define what would change in a meaningful way, I know the conditions we talked about in the Atlantic submission, and if those were addressed specifically and you could get those amendments in place and that could be shared with many of the proponents that have put forward changes, I think there needs to be some kind of mechanism. If we can do that in a short while, that would be great.
I appreciate what you’re saying, if it goes back and it takes another few years before it gets done. I’m an engineer by profession, so projects, timelines and ownership of results was kind of second nature to me. If you put real timelines on how and when it needs to be completed and what items need to be addressed, you should expect that to happen in a timeline much less than two years. Someone needs to be accountable to make it happen.
[Translation]
Senator Mockler: I have three or four questions, but I will only ask one. I will ask the others if we have a second round.
First, Mr. Premier, I would like to congratulate you for explaining the vision of people from New Brunswick and Atlantic Canada.
[English]
This morning, I was at a meeting, honourable senators. The moderator was Mr. Frank McKenna, a former Premier of New Brunswick. He was moderating a panel of the trade union convention here in Ottawa. Minister Sohi, Deputy Commissioner David Paul from the First Nations Tax Commission, and Premier Blaine Higgs participated.
[Translation]
Mr. Premier, New Brunswick is a leader in many areas.
[English]
And there is one domain we’re a leader in: New Brunswick Power is world leader with technology to produce safe, reliable emission-free electricity generation under the name of small modular reactors. Before I ask a question, Mr. McKenna said that the world was looking at Canada and “Canada is being seen as a place not to put money in.”
Premier, with the small modular reactor and with your experience, what would be the impact of Bill C-69, if it doesn’t have the proper amendments on the small modular reactor that could be produced here in Canada, specifically in Atlantic Canada, in New Brunswick?
Mr. Higgs: It’s extremely significant in delaying or eliminating the potential. The small nuclear reactor technology is one that would be a clean environmental path forward for clean energy. We have operated the nuclear facility for many years successfully. It is known as highly rated in its capability and operational abilities, and we have the technology right there; we have the location, knowledge and technology. When you are trying to rebuild and look at what opportunities exist in New Brunswick, that is indeed a potential for us.
This is another mechanism to oversee and really take the place of the nuclear regulator that exists today that monitors that industry. Why do we need to invent something here to delay that process, other than to simply be sure that the standards and the regulations we already have are followed completely with any new development?
We seem to be building more bureaucracy into this and more uncertainty by creating a separate division, rather than causing the current capabilities to work more efficiently and be accountable for the decisions they make. It will have a detrimental effect.
[Translation]
Senator Carignan: Mr. Premier, thank you for being here. One of the questions I have asked elsewhere in the rest of Canada is one I also asked the Quebec Minister of Environment. I’m going to ask you the same question. It concerns a concept for the creation of an energy corridor in which the parties and the provinces could transport energy from east to west, whether gas or hydro. This would at least allow us to reach all provinces with the same footprint at ground level, which would avoid multiplying the various environmental elements or risks in several places on the territory rather than confining it to a corridor that could be more judiciously chosen to respect the environment and Aboriginal groups. Do you think this is a desirable avenue?
Second, do you think that this bill should take this process into account, so that the corridor can be authorized or evaluated so that the pipes or power lines that are located within the corridor can undergo a quicker evaluation process?
[English]
Mr. Higgs: Absolutely. It’s a way to proceed. I think it is a solution to us moving forward as a nation and as a nation of provinces working toward a common goal. The benefit is to have the criteria defined around what goes into such a corridor, what assessment is required environmentally, community involvement and First Nations involvement so it’s very clear that any connection we are making through our country have to follow these standards. They don’t have to be invented all along the way. It helps remove the political process, which has often stymied our country. We have not been able to move a project one way or the other because one province is not on side. Then there is an election, and it all goes south and we start all over again.
It’s time, like we haven’t seen for a long time, to wonder how we build a coalition of concerned provinces that basically want to have their resources get to market. Quebec is in the same situation with the tremendous resource of hydro power to move throughout the country. We buy hydroelectricity from Quebec today, but that can be expanded significantly.
Recognizing the issues in other provinces — and with Alberta, what came as a shock to me was my very first ministers’ meeting. The Premier of Alberta at the time — the devaluation of the oil was 70 per cent. I couldn’t believe that it was not the number one issue on the table. I felt a sense of guilt, really, because I was a province that has received transfer payments for generations. Our families in the province have been recipients over the years — and in the Atlantic region — and yet there was not a sense of urgency. At the end of day, it could have impact on all of our well-being.
Getting something like this established — something that would create clarity of movement of resources through our country — is key. This may be a prime opportunity to make it happen.
Senator Richards: Thank you for being here, premier, Mr. Leger and Ms. Carlin.
One of people who voted in the Alberta election said that she voted against oil because she was voting for culture, education, research and medicine. I thought, “Well, what do you think is going to buy education, medicine and culture except a good infrastructure and a good economy?” They are not going to come without that; you can’t have one without the other. I think that’s the big miss here in a lot of ways.
Certainly, we know that in New Brunswick. My son was out working in the oil field when his wife was home in New Brunswick five months pregnant, so we know that.
I would like to know about Energy East. I felt it was a betrayal when it happened. I was not in the Senate then, but I felt it was a betrayal then as well as now. How much revenue do you think was potentially lost by that decision?
Mr. Higgs: If I might start, we did have a number — about $38.7 billion for Canada.
But to reference where we are, politically, I think, in the narrative, I inherently believe we can have both: We can have an economic future, and we can have a greener, cleaner future. There seems to be the dividing line that we can’t do both, but we can’t pay for the things we want to move forward on.
I have a book in my library that’s from 1998, and it’s entitled The End of Oil. It was not about stopping using oil; it was about us running out. There is a panic. We will have no energy, and what are we going to do?
So 20 years later, we are not worried about running out we are trying to figure out when it stops. We are all on side with the same program to reduce emissions. There will be the narrative that if I don’t want to charge people more taxes at the gas pumps I’m against a cleaner climate. Absolutely not. That’s not true. I am saying we can get there and propose a carbon plan without taxing people more.
Why do I feel like this is the opportunity? As a kid I was at the New York World’s Fair, which kind of dates me, and they had cars there that basically had no steering wheel — autonomous vehicles. I was 10 years old at the time and I thought, “Oh great, by the time I get my driver’s licence there will be no cars to drive.” Now I wish they were there, but they are closer now.
Think about what we are charging on our carbon plan to industry. In New Brunswick alone, when it’s fully implemented under the current regulations, when we move forward with a plan to the federal government, it will be about $12 to $14 million a year. If you take that across the country, how much money is coming into from industry today? You take the industries that are doing this, and I will use the refinery in Saint John, and paying a significant tariff as they should in relation to being a major emitter in the province. If that money is focused on technological advancement, we are going to have a Kodak moment. We will have a moment when the electrical storage capabilities through batteries are going to be at the point where all of a sudden we don’t have film cameras anymore because it changed overnight with digital photography. Storage will be competitive and it is moving that way all the time. All of a sudden, people will then say they can afford an electric car and have more renewables around their home. But right now we are at a point that the cost to do that is a serious impediment to the ability for people to pay and it’s a serious impediment for us to encourage investment.
Senator Stewart Olsen: Thank you for being here. I’m very heartened to hear from a premier not the divisive ranting of “my province before everyone,” but as a part of nation building and thinking about the rest of Canada. I really think that was a very good thing to hear in this country right now. I look at this bill and I see the one of the most divisive pieces of legislation I think I’ve ever seen.
My question is about your energy corridor proposal in two parts. For instance, the St. Lawrence Seaway is silting over. Pretty soon I can see a tanker ban and then where will we be? Because this government really loves tanker bans. If we have an energy corridor, I think if you can just tell me about how it would work, would you mean all energy or just the pipeline? What are you seeing there as part of your grand vision for the country?
Mr. Higgs: It has to be a consideration for what is needed in each province. If I were to say in Quebec, for example, they need a transportation system to get out to market and it needs to have that ability to have a transportation system. If you go to the other end of the country and want to get oil to market from Saskatchewan or Alberta, they need a pipeline. I’m hoping to have a natural gas development in New Brunswick. I want the ability to get the gas out to supply, and Quebec and other parts of the country could be a supply point for gas distribution. We have had a struggle in New Brunswick trying to get to a point of funding it, but it’s supposed to be there so we’re looking.
In our own country we talk about free trade between provinces, but free trade between provinces has to be fair and equitable. It includes more than just a corridor, it includes regulations for movement of labour back and forth across borders because certification levels are the same and people can say they are part of a country and we have a passport to move around in our country. This corridor would be defined as a minimum with electrical capabilities, transmission systems, gas, oil and communication systems. The usage and the requirements of how it would be developed would be well-defined.
It has taken the focus off of the individual issues and saying it’s time for a project that pulls us together because we’ve got some challenges. I’ve said more than once I feel like a stranded asset in New Brunswick. For years, Atlantic Canada has been here, give you $100 million, go build and road and we’ll vote for you. I kind of changed that tune in the last six months because I don’t need more roads. I need to create a vibrant economy the way it started many years ago as a nation-building area of our country.
The Chair: Thank you.
Senator Woo: Thank you, premier, for coming out. We really enjoyed visiting Saint John and hearing from your fellow New Brunswickers. We heard many diverse views on Bill C-69, including some people who are very supportive of the bill and a few who wanted us to go even further, which gets me to the point of amendments and how we improve the bill. I really take to heart many of the suggestions you and the other Atlantic premiers have offered us and I think if you stick around for a bit you will be heartened to know that many of us are working on amendments, in precisely the areas you flagged. It gets to the challenge of making amendments that preserve a delicate balance.
This bill didn’t come out of the sky or appear overnight, it was the product of years of consultation, including with experts and colleagues from Atlantic Canada. It involved many experts and we are hearing from many expert groups who feel that the bill perhaps does not go far enough. All of us here are taking our roles as senators seriously in the way you describe, representing regions, representing other interests and trying to find ways to improve the bill without upsetting a very delicate balance.
This gets me to the question for you. You’ve said to us, either amend this substantially — and you put a lot of emphasis on that — or defeat the bill. I’m a bit worried that what we do isn’t substantial enough and you are tilting us in a direction of defeating the bill. Is that really what you want to see? What advice would you give to us as senators who are really trying hard to balance the variety of interests that are out there, not just economic interests, which are very important, but many other interests that are prevailing on us?
Mr. Higgs: First, I’m not here to try to just defeat the bill and that’s it, I would like to clarify that. That’s not why I’m here.
Senator Woo: Thank you.
Mr. Higgs: We have had trouble with projects. I was in Ottawa in 2013 making a presentation on the projects, a project that was supposed to be completed in five years’ time, by 2017. We were voted as most likely to succeed, but that was before the new rule came into place about emissions upstream and downstream being considered. Those are the uncertainties that have caused problems. Those types of changes in regulation have caused uncertainty in the investment.
What I would like to see most is that in the amendments made you would feel you could give those to investors — be it companies, be it banks — and ask if this opens the door in a fair and equitable way so that it’s reasonable on all counts to encourage investment into our country. Those are the people who have been driving our economy — private sector investment. They have been helping us to pay the bills and provide services. There is a connection and your job is making that connection. If you can do that in a way that doesn’t shut the door on development in our country, you’ve done your job admirably.
Senator Seidman: Thank you very much, premier, for being with us today. You mentioned in your presentation that one of the points you made in your letter to the Prime Minister is that the bill as drafted places final decision-making power in the hands of the minister or Governor-in-Council and provides opportunity to veto the results of scientific assessment and review of evidence. We have heard that concern expressed consistently about the ability of the minister to veto projects that are in the final stages. You say that this has a significant negative impact for major project certainty and it should be amended. Do you have something in particular in mind?
Mr. Higgs: I believe that the process should be fact-based. It should have the criteria that has enough objectivity to it that you can make a decision on go or no-go. Basically it takes the subjectivity of the political process out of it. That’s my point. Anything we leave to chance in that regard, that’s left open, is an uncertainty for investors because it just depends who happens to be in government at the time.
What I’m hoping is we are trying to create the certainty within our development model, the path forward in terms of a cleaner environment and reducing emissions, and us all being on the page to do that. And do it in a way that people say New Brunswick’s doors are not closed to investment.
If the process is objective then there is no confusion. But when you allow for the personal preferences, the political influence, we have seen it. I’ve seen it in New Brunswick and when I talk about the numbers, that’s what is important about our Constitution and the very body that I’m speaking to here today. That’s how we have representation in a small area like Eastern Canada.
When I presented here in 2013, the nature of my presentation was that almost everyone in the room said, “You think Canada ends at Montreal or Quebec.” I want to tell you the rest of the story, and then I went on and we had a graph and I showed the pipeline route at that time. And I went to the refinery. I said, “We have the largest refinery in North America.” Who knew? We have been transporting crude oil for 40 years by the largest tankers in the world. Who knew? Everyone was in shock. You have this in New Brunswick? We are trying to put New Brunswick and Atlantic Canada back on the map with objective thinking, not political thinking.
The Chair: Premier Higgs, I have a small question. You know that we have met with more than 200 witnesses. We have been studying this bill for more than three months now and I think we have heard from all the petroleum companies in Eastern and Western Canada. They have given us amendments and they have said, many of them, that the status quo is unacceptable and that, among other things, they have also said that Bill C-69 is a step in a good sense.
You said to stall it or kill the bill. I’m wondering, who exactly do you talk to? Because I cannot make the equivalence of the messages that I’m receiving.
Mr. Higgs: I think that I clarified the position with the other question in relation to my goal — and it has not worked in the past. I’m not suggesting that all was well in the previous bill because it was not. So I think the opportunity now is to get it right. And so if you have some very clear amendments that allow it to be more objective in nature and more precise in the criteria, that’s great.
The Chair: Thank you very much.
Senator Massicotte: Thank you, premier, for being with us today.
I don’t want to argue about who is responsible but empirical studies make it clear that in Canada for the last 20 years, we have had big difficulties getting projects approved whereby the lengthy process is immense. In fact, we are rated 34 out of 35 OECD countries relative to the burden of getting things approved in our country. The problem is serious, it’s real. It is not a problem that occurred yesterday. It has been going on for over 20 years. We have a significant challenge.
I’m convinced that the senators here are convinced and prepared to work hard to find resolution to the issues. The one of balance is critical. We are going to give it the best we can, and I’m optimistic we can come up with good recommendations to resolve a good part of it. Nobody will be happy, but that’s the fair test; when everybody is unhappy to the same degree, we have done our job.
Having said that, the legislation as proposed allows for substitution. We have B.C, which is a very demanding province relative to development, very finicky relative to their needs. And they have come to agreement with the federal government whereby, in the future, when they have a significant project, it will be one review undertaken by the province, per se.
Have you looked at that aspect and asked, “Why can we not do that in New Brunswick?” It would make it so much simpler and easier and avoid duplication that clients, proponents or developers have to propose; have you looked at that option?
Mr. Higgs: I haven’t looked at it in detail, but I’m familiar with the concept. And I guess the same logic would apply with regard to a province, in order to have clarity on the decision-making process would be made. We have seen tremendous volatility in positions taken because it depends on who is there in government.
I think it is conceivable to do that and gives provinces a little more control over the project. It would feed into the idea of having a corridor supply because your supply is there and you can decide in your province what you will do with it, but you have the option. I’m not suggesting you take that away from provinces but I am suggesting that you have the option because it’s there. There is merit in considering what the province would do but for me, I would want to get it well defined.
Senator Mitchell: Thanks very much, premier, for being here. I am very taken — I think we are all are — by your idea of a national energy corridor, and I know that would be a great nation-building exercise. I had a smile as I thought about it, given that for 150 years we have had difficulty getting wine and beer between borders. Could you put a sliver of that corridor for wine and beer pipelines?
Mr. Higgs: I didn’t include that. That will get it through.
Senator Mitchell: You raised some very important points. I wish I had some time to point out that many of the points you raised are addressed in the bill. For example, every single timeline is shorter than exists now, the minister is constrained and the cabinet is constrained in certain ways. I can go on, but there are good points that you make that need to be addressed. And I think you are leaving the door open, which you can tell we appreciate because going back to whatever the drawing board would be after eight years of CEAA 2012 and three years of consultation, what would be that be? Let’s do it now.
You are elected and I was elected years ago, so I’m partial to political discretion, finding that balance. You said there is too much here. I looked at your EA process in the New Brunswick and I look at the decision tree. And it comes down to the minister submits a report and recommendation to the Lieutenant-Governor in Council, which is the cabinet and the decision a by the Lieutenant-Governor in Council, which is the cabinet.
How is it that you have addressed this very issue in your own environmental impact assessment process and how could you give us some insight on how that might be done better in that process?
Mr. Higgs: There lies the problem in New Brunswick. I haven’t fixed all the legislation yet, by the way. I’ve been there six months. We’ve seen that in our natural gas development. We saw that very thing be a political football and so nothing was clear. And I guess to your point, when I think about that particular situation, it was started by one government, it was supported by another government and the same government that started it refused to put a moratorium on it.
You are asking why we do these things. There is only one reason and that’s because the attitude changed. We cannot get a line on a project that moves us forward. We ended up being directed by polls and that’s why I say that the ministerial discretion must have order to it. For me, a lot of decision making has to be public. The citizens have a right to know, are we protecting the best interests? Are we doing this not because of political reasons, in a negative way, in terms of not following the rules, to we are following the rules and here is what our monetary results have shown. So there is clarity and transparency.
That’s one the big things that is an issue. People don’t understand the process and they maybe never will, but they need confidence in this. And today, I don’t think they have confidence.
The Chair: Thank you very much. Premier, we still have three senators, with your indulgence?
Mr. Higgs: My time is yours.
The Chair: Perfect. However, we have other panels.
Senator McCallum: Thank you for your presentation, Premier Higgs. Industry has its story and Indigenous peoples have theirs as well. I think that a lot of Canadians don’t understand the problems that First Nations have had to endure with industry. You said you feel like a stranded asset, and many First Nations feel like imprisoned objects in their home territory.
Past proponents have to take some responsibility for the drafting of this bill. Even with regulation and total scientific assessments and evidence, there has been and continue to be many areas across Canada where toxic waste and devastation to land, lives and people’s health has occurred, especially near First Nation lands. When you said that our central responsibility is to defend, protect and advocate for regions in our great country, my priority is First Nations who have had very little voice, especially women. When I look at the impacts of industry — energy, forestry, mining and hydro — they have left devastation all across the North in Canada. Alberta has 150,000 orphaned wells which will now require $55 billion to clean up. A lot of these are near First Nations and Metis lands. These are serious impediments for First Nations towards their health as well as economic development within their home.
What would you recommend to counter what has happened to them? Do you have any suggestions that could help towards alleviating this situation?
Mr. Higgs: I think we all recognize that many First Nations communities are living in conditions that are completely unacceptable. We have that situation in New Brunswick as well. Any development that we have needs to be on a pattern going forward where we’re working together. The atmosphere has been kind of set that First Nations are against development. I don’t believe that at all. I think they’ve recognized, to your point, that they’ve not shared in that.
I feel that when — I do this with a lot of things in the province I’m looking at now. I look at how much money we spend in different areas and I’m determining what we are getting for results, in terms of services and things across the provincial network. What are our goals? What are we trying to accomplish here? In New Brunswick or across Canada, how do you define where we are today in the First Nations communities? What are the most critical situations? How do we put ourselves on a path to change that?
More importantly, how do we get it so it’s consistent from one election to the next and we can see it in communities, people can feel it? It doesn’t have to be a headline we read somewhere. People feel it because their lives have changed. I don’t feel like we have an appreciation for what the goal posts are, for what it is we’re trying to accomplish.
I’ve had great discussions in the last few days. I met David Paul earlier at dinner last night and we talked about opportunities for First Nations and the opportunities for economic growth, and sharing and caring. It’s real. I believe there’s a stigma that has been unfairly attached that First Nations don’t want to be part of an economic growth strategy for our country, and I don’t believe that’s true. I believe they do want to be a part of it and they want to share in the benefits that go with that.
Senator McCoy: Thank you, premier, as an Albertan, for your well expressed and pan-Canadian view and your exquisite understanding of what Alberta is enduring at the moment and your sympathy for it. It’s something that’s truly a nation-building attitude.
I too would like to pursue this thought of coming to a pan-Canadian agreement about a corridor, but it seems to me that is way beyond an impact assessment process. It seems to me that’s a much bigger policy agreement. Really it’s building a consensus among Canadians, province to province to territory, of what our goals are and what our desired outcomes are. If we had that, then we could perhaps move forward in some kind of more considered, fact-based, objective way. I would encourage you to expand a little more on that and to give us your assurance that, as premier, at first ministers’ meetings and also at the federation —
Mr. Higgs: Council of the Federation for provinces.
Senator McCoy: Yes, that you pursue that idea.
Mr. Higgs: I intend to. We have had discussions on that both in the Atlantic region and at first ministers’ meetings. I feel we have alignment provincially and across the country in many areas. I think it’s becoming stronger and stronger. I think the opportunity for us is to continue it with the federation. Outside of the federal and the political process, not to put too many targets in this, keep it on a basis that we have a higher goal here and we create that vision statement outlining what we’re trying to accomplish and we get alignment with provinces that this makes sense for us. It makes sense in so many ways, not only for energy but talking about getting beer from province to province. We’ve been talking about inter-provincial trade forever.
Senator McCoy: Ever since I was in cabinet.
Mr. Higgs: It’s been going on since I’ve been in politics as well. It’s like why can’t we get this bar? We talk about certification across provinces. We can’t seem to get that bar.
I go back again to my engineering background. Project management and project execution was kind of part of my —
Senator McCoy: Of course, you would then be putting section 36 of the Constitution Act, 1982, into play, which is a commitment among provinces and the federal government to foster opportunities without disparity across the country.
Mr. Higgs: That is absolutely correct. I mentioned earlier about the constitutional requirements and what I see is certainly the value of the Senate. That’s it.
The Chair: Thank you.
Senator Plett: Premier, thank you so much for being here. It’s been a pleasure listening to you. Let me just say, I really appreciated a few of the comments you made when you said Atlantic Canada and New Brunswick want to participate fully in the Canadian economy. Why were the largest banks founded in the Maritimes? It’s because it’s where the money was before Confederation.
A few years ago, Alberta was probably the largest contributor to the Canadian economy. So much legislation and so much of what we’ve seen here in the last few years is pitting one province against another, pitting one region against another when we need to work in unison. When we have resources in one part of the country, we need to exploit those resources for all of the country and not try to curtail those resources. Thank you very much for the comments you made.
Bill C-69 has certainly never been the intention of the loyal opposition in the House of Commons and indeed in the Senate to kill legislation but rather to improve it, to amend it. I think that’s the message you have spoken here today and that’s what we would like to see, but it’s becoming increasingly difficult.
My question is a very short question and a follow-up to something Senator Cordy said. She was the first questioner, and I’m the last. She said that if we don’t pass this bill, it could take us two years to get to something. We all agree the status quo isn’t where we want to be; we want to improve.
Is waiting two years and getting it right better than getting it wrong today?
Mr. Higgs: In my submission, I referenced that getting it wrong is critical to our country. It seems like we need to have that moment where we’re saying, okay, how are we financing the things that we have all across the country? How are we managing that, to the point that was raised earlier?
You have to decide with the input you have and the amendments being proposed whether we have it right. What’s your test of doing that? If it’s going back to maybe some of the submissions and the people who have been here and asking them if the wording is right and if it makes sense. It might be asking investors from around Canada and the world, and comparing their input with other countries so we have some benchmark to look at. We’re competing with the U.S. in many areas, so are we chasing investment to the U.S.? That really hurts, and many of our companies are competing directly with the U.S.
I would say that if you can get it right and you have some benchmark to determine you’ve done that, that’s great. We know the status quo has been a problem. But if you can’t convince yourself that you’ve got it right, take the time to do it right.
The Chair: Thank you very much, premier. Thank you, colleagues, for this important conversation.
In our second portion of our meeting, we now welcome, from the Mohawk Council of Kahnawà:ke, Ross Montour, Council Chief — thank you very much for being here — and Francis Walsh, Legal Counsel.
From York Factory First Nation, we have Leroy Constant, Chief; and Louisa Constant, Advisor.
From the Canadian Research Institute for the Advancement of Women, by video conference from Happy Valley-Goose Bay, we also welcome Leah Levac, Research Associate and Associate Professor, University of Guelph; and by video conference from Halifax, Susan Manning, Researcher and PhD Candidate, Dalhousie University.
Senator Plett: Chair, I would like to raise a point of order that has to do with committee proceedings.
This committee decided — and I believe unanimously — to ask that the committee hearings be extended for one week. That was conveyed to leadership via a letter requesting that a member of this committee who is the leader of the largest caucus in the Senate made it clear at that leader’s meeting that it was not necessary to deal with this, which I found very troubling, because I think it is very necessary to deal with this.
So we have a situation, Madam Chair, where there are suggestions being made that the premier of the almost most westerly province come here — there’s talk about him coming here for a 7 a.m. meeting — on Thursday in order that we can put three ministers into a two-hour time slot in the afternoon and rush legislation through. This is highly unacceptable.
So in light of the decision that the committee made, unanimously approved and that is not being dealt with, I have a motion that I am presenting here that I would like dealt with at this point.
Therefore, I move, Madam Chair:
That the Premier of Alberta be invited to testify at an upcoming meeting during the committee’s regular time slot;
That the Minister of Environment and Climate Change, Minister of Natural Resources and Minister of Transport be invited to appear the following week, for one hour each;
That the committee begin its clause-by-clause consideration of Bill C-69 on Tuesday, May 14, 2019.
The Chair: Can I say something before debating your motion? We are ready to receive Mr. Kenney after the three ministers on Thursday. The officials will be postponed. I was going to inform you about that at the end of this meeting. Will that change your motion?
Senator Plett: Well, if it doesn’t change the time frame, it wouldn’t change my motion. We clearly believe having the ministers coming in before Mr. Kenney and having two hours for three ministers is not acceptable. If there’s an alternative that we can have the ministers for a minimum of one hour each, that we will also hear from the officials and that Mr. Kenney will be given a reasonable time slot —
The Chair: Yes, ten o’clock for one hour.
Senator Plett: — for his time, my motion may change, but I would need to see that, Madam Chair. I am willing to suspend this motion if I have agreement from the committee that nobody will try to adjourn the meeting before this motion is dealt with in its entirety. We can suspend this discussion until all the witnesses have been heard today. If that is acceptable, if we have that agreement that no one will try to adjourn the meeting before this motion is dealt with, then I am happy to do that.
The Chair: Yes. Thank you.
Senator Plett: Do we have agreement from the committee?
The Chair: Is it agreed?
Hon. Senators: Agreed.
Senator Plett: Thank you.
The Chair: Thank you.
Sorry about that. Could you please proceed with your remarks?
Ross Montour, Council Chief, Mohawk Council of Kahnawà:ke First of all, I bring you greetings from the Mohawk community of Kahnawà:ke. I’m pleased to present here today. The Mohawks of Kahnawà:ke welcome the opportunity to inform the Standing Senate Committee on Energy, the Environment and Natural Resources of its position that Bill C-69 should be adopted by the Senate. For us, the starting point in all of our dealings with the Crown is to advance based on the Two Row Wampum nation-to-nation relationship. While Bill C-69 does not fully reflect the nation-to-nation relationship, it is a step in the right direction. If this bill were to die on the Order Paper or be amended in a manner that undermines its purpose, it will be a missed opportunity to significantly improve impact assessments and advance the potential for reconciliation with Indigenous peoples.
The current legislative and regulatory frameworks, including CEAA 2012 and the National Energy Board Act, fail to appropriately consider Indigenous rights and the significant contributions that Indigenous people can make to protect the environment and optimize projects that take place on our lands.
The current process is deeply flawed and fails to serve the interests of Canadians, the environment and, most decidedly, that of Indigenous nations. The Mohawk Council of Kahnawà:ke has significant experience with CEAA 2012 and the National Energy Board Act. The conflicts of interests, limitations on a list of issues assessed and disregard for Indigenous knowledge and rights are some of the issues we’ve encountered during these processes. It should come as no surprise then that the review processes and the decisions that resulted have no credibility within our communities.
It must also be remembered that the current impasse in major project approvals is occurring under the existing CEAA 2012 regime. In light of these concerns, we have participated from the early stages of Environment Canada’s legislative review process. We were pleased with certain aspects of the government’s direction and disappointed with other areas as we felt they did not go far enough. As such, we have commented on positive aspects of the bill but also put forward recommendations on how the bill could be further enhanced.
Our recommendations did not result in significant additional enhancements to Bill C-69. It should also be noted that many of the recommendations of the expert panel reports were not retained. As such, our view is that Bill C-69 cannot be considered as catering to environmental groups and Indigenous nations. Rather, it is already a compromise that takes into account the views of various stakeholders.
As stated before, the starting point in all our dealings with the Crown is to advance based on nation-to-nation relationships. While Bill C-69 does not fully reflect this relationship, there are several features that will enable the Crown to carry out early and respectful engagement. For example, Bill C-69 includes the need for an early engagement period of up to 180 days with Indigenous nations. MCK believes this is extremely important as it gives the nations an opportunity to provide critical information concerning their traditional knowledge of the local area and the potential impacts associated with the proposed project, including assistance with scoping project and study areas. Project modifications can be discussed at an early stage prior to large investments of time and capital by proponents to improve project acceptability.
Partnership opportunities may also be discussed at this stage as well as impact assessment criteria that may be unique to the Indigenous world view. The necessity to explicitly consider impacts to Indigenous rights and project evaluation is another significant advancement in the impact assessment process included in Bill C-69. Requiring that impacts to Indigenous rights be considered in the impact assessment and by the minister in decision making will help Canada meet its legal consultation obligations and will remove uncertainty and jurisprudence about who must consider these impacts and when.
This will improve impact assessments and, if carried out properly, may also limit potential legal challenges to decisions. Incorporating Indigenous knowledge in addition to scientific investigation will assist in the true determination of project impacts. In the current process, environmental assessments typically conclude that there are “no significant impacts” from all project activities when it is evident to us that that is not the case.
By ensuring Indigenous knowledge is heard, a realistic assessment of project impacts may be possible, and suitable mitigation and a combination of measures may be advanced. The formalization of the importance of regional and strategic impact assessments in the bill is also a key advancement. While the MCK has recommended and continues to recommend that triggers be included in the bill to mandate regional and strategic impact assessments, their inclusion is a start to recognizing the importance of advanced planning if sustainable development is to be achieved.
The ecosystem approach offered by regional impact assessment will facilitate project-level development by determining appropriate threshold levels of impact and appropriately measuring and managing cumulative effects.
Taken as a whole, Bill C-69 is a compromise. Nevertheless, it will significantly improve environmental assessments and will provide the Crown with opportunities to act on a nation-to-nation basis with Indigenous nations. While the MCK has made numerous suggestions on how the bill could be improved, at this late stage the MCK’s primary recommendation would be that the bill should include triggers to mandate regional and strategic impact assessments.
The MCK firmly believes this bill will not be detrimental to the economy in the advancement of projects. Given the legislative calendar, further delays to the passage of the bill are not appropriate. The Senate must pass Bill C-69 without suggesting any amendments that would further reduce or eliminate the improvements contained in the bill thus reducing the nation-to-nation relationship and the constitutional duty to consult, which is carried out within the context of impact assessments, to nothing more than a sham.
The Chair: Thank you. Chief Constant?
Leroy Constant, Chief, York Factory First Nation: Good evening, senators. My name is Leroy Constant. I am the chief of the York Factory First Nation. I’m here along with Louisa Constant. She is an adviser to our council and a community member who has been working very closely on the issues. She’s also a former chief and a council member of our First Nation.
We also have in the room with us our elder Flora Beardy whom I want to acknowledge for the long trek we made here, all the way from northern Manitoba, over 3,000 kilometres, literally by planes, trains and automobiles. Also with us is a member of council Evan Beardy. Member Martina Saunders is also present. Our friends from Amnesty International have also joined us here today.
We are glad to be here with all of you today on the unceded Algonquin territory to express our support for Bill C-69, as drafted, including its strong provisions on Indigenous and gender rights. We had requested to speak during the committee’s hearing in Winnipeg. We did not get the opportunity at that time so we had to make our trek here. We’re very thankful and we appreciate the chair’s arrangements for us to speak here.
We are Cree from the Treaty 5 territory and I want to acknowledge Senator McCallum. She is in the same territory as us. The traditional territories and ancestral homelands of our people that cover the Hudson Bay coastal lowlands between the Churchill and Kettle Rivers, and include the Nelson and Hayes Rivers. These lands and waters have sustained us for time beyond memory.
Our community of York Factory was forcibly relocated by Canada and in the mid-1950s from our homelands and York Factory on the Hudson Bay to a new location, which we call York Landing. Over 250 kilometres away from the coast, we were made to leave our homes with the promise of a new community with homes, and all our belongings arrived to only a location marker in the ground. We are now only able to access our traditional ancestral homelands by helicopter or take a ferry and drive 200 kilometres or with an expensive charter boat, but we continue to actively exercise our treaty rights to use our traditional territory through the 1910 adhesion to Treaty 5.
York Factory First Nation is now located along the Nelson River which Manitoba Hydro has been damming and regulating since the late 1950s. There are now nine dams and control structures on the Nelson River system. The most recent, a 695-megawatt dam called Keeyask, is under construction as we speak.
So hydro development has had real impacts on our people and it has brought discrimination, racism, harassment, racial and sexual violence. Our community is by no means anti-development. Our First Nation entered into a partnership with Manitoba Hydro on the current Keeyask project. We were guarded from a long history of experience on the impacts of hydro projects on our people and our land, but also hopeful that the project can bring some long-term benefit to our community, at least to outweigh the negative effects that would come with the dam that was already approved.
Since the project began, we have been struggling both as a project owner and also as an affected community with the racial and gender-based violence that comes with resource development. Consistently, our members have experienced human rights abuses. There have been numerous and ongoing sexual assaults at the work camp. Families experience strain and struggle with the extended separation that the work schedule demands.
There is a stark increase in the substance use and addictions and introduction of hard drugs into our community that correlates with the Keeyask camp. Our leaders have tried to make decisions in the best interests of our community. We wish for prosperity, independence, well-being and economic stability. But we are also unwilling to sacrifice our people and the lands and waters that we are responsible for.
I will turn it over to my colleague Louisa Constant, and I will have additional comments after her presentation.
Louisa Constant, Advisor, York Factory First Nation: Good evening, senators. I want to speak to the issues regarding social, cultural, health and economic impacts from hydro on our community. Hydro development projects in northern Manitoba have had many impacts on our women, especially, two-spirited people and on our girls. And we’re here to say to the committee that these impacts need to be part of the assessment process of any project.
Sexual and gender-based violence directly related to hydro development is a burden that gets inflicted on our community every time there is a project. And it has been like that since the beginning of hydro project camps that have been in our territory since the 1950s.
Our people are now starting to speak up, the women are speaking up. They are becoming more vocal and our community has been actively working to support our members and we have been trying to get to supports to address the root causes of these issues.
We are working through our individual and our collective traumas and coming forward to tell our stories, so that’s what is happening in our community of York Factory First Nation. Women are speaking their truth about being sexually assaulted at hydro project work camps. And women are talking about being sexually violated from the 1970s working at a hydro camp that’s right next to our community, which is Kelsey generating station, right up until now with a new dam at Keeyask.
Our members are also speaking about incidents at the new Keeyask camp over the last five years. There was a report recently in the Winnipeg Free Press that hydro’s numbers were that there were about 241 complaints filed regarding racism, violence, sexual misconduct, bullying and inappropriate language. But we believe those numbers are low. A lot of our own members do not make official reports regarding those kinds of incidents because they don’t believe in the mechanisms that are there at the camp.
Our members are also enduring racist comments like “dirty Indians,” “squaws,” “savages” to this day. You would not think that occurs anymore, but it is happening to our young workers at the camps. We hear from our women working at Keeyask consistently about sexual assaults, harassment and even gang rapes. Our two-spirited community members have faced homophobia, transphobia that have made them and their families fear for their safety while working at Keeyask.
Assaults have gone unreported because they don’t trust the authorities, because it’s hydro that’s handling the complaints processes at the camp. And these are the processes that are supposed to protect them. They are supposed to protect our people. And others that were reported saw no police investigation, no medical support for the women.
We’re here to say that it has happened right from the 1970s on. It has happened in the past, it is occurring now at Keeyask and we are trying to understand just how deeply our people have been hurt by the impacts from the work camps and development. Our women, our girls, the two-spirited people, and there are children who have been conceived in violence. Families and our loved ones are impacted. And we’re here to say that these are the impacts that have to be clearly understood, and they have to be addressed as well. We are supportive of the requirement of a gender-based analysis to be part of the impact assessment process of any project.
Mr. Constant: Again, we support Bill C-69 because we know that we must protect our community members. We must protect our children, our women, our men, our two-spirited people. We must protect the land, the water, the animals that sustain us and that are currently threatened by development, which in turn threaten our own cultural practices.
All of this must be considered and analyzed when the next project is proposed in our territory. The environmental impacts are incredibly important but not the sole consideration for analysis. We know it is in the best interests of everyone, not only our own community members, to proceed with projects when we have full awareness about the extent of environmental, social, health, cultural, economic and gender-based impacts. I have seen destruction by the flood waters here in Ottawa and across the country. It is an undeniable reminder of our changing climate and emphasizes why we must continue to work toward responsible resource use.
I’m here to tell that you that York Factory First Nation supports Bill C-69’s changes to the Canadian Environmental Assessment Act. We support the inclusion of requiring gender-based analysis as part of the impact assessment process. These impacts have to be understood and addressed, and we recognize it is imperative to consider social and cultural impacts on Indigenous communities and, in particular, how these projects will affect Indigenous women, girls and two-spirited people.
We support Bill C-69 in mandating strong consideration of Indigenous traditional knowledge in project planning and creating advisory roles for Indigenous people and giving weight to Indigenous approaches to the environmental assessment. We need to be included in these processes from the very beginning, not after it is a done deal and all the plans are already laid, which is a common practice.
We believe that some very key aspects are also missing from the bill; namely, a consent-based process that adheres to the United Nations Declaration on the Rights of Indigenous Peoples. There is also a lack of recognition on the traditional territory and the treaty lands. We do hope that Bill C-69 can improve on the existing Canadian Environmental Assessment Act to create more holistic analysis that includes recognition of Indigenous jurisdiction and more engagement avenues in the co-governance processes.
We now know that that the social and environmental impacts of these projects, if governments and industry are choosing not to pay attention to the costs to our people, culture, livelihoods, lands and waters, it is wilful ignorance.
We respectfully urge the Senate Committee to look toward the future of people and our planet in making these decisions. We hope you will recognize the part you have to play both in terms of reconciliation and responsible resource use.
Thank you very much for the opportunity.
The Chair: Thank you very much.
Leah Levac, Research Associate and Associate Professor, University of Guelph, The Canadian Research Institute for the Advancement of Women: Thank you for the invitation, and thank you to the previous witnesses for their important comments.
We are pleased to be here to speak to you on behalf of The Canadian Research Institute for the Advancement of Women about our support for Bill C-69.
I would like to begin by acknowledging our presence and work on Indigenous territories, including on unceded Algonquin territory where the hearings are being held. We recognize the effects of colonization on Indigenous people and on all Canadians.
My name is Leah Levac. My ancestors settled in Ontario in Anishinaabe territory. I’m a research associate with CRIAW-ICREF and an associate professor of political science at the University of Guelph.
CRIAW-ICREF has used research to document and advance economic and social rights and well-being of women for over 40 years. Several of the projects we are drawing on today come from research that has been supported by CRIAW-ICREF and also by SSHRC.
This is my colleague Susan Manning. Her ancestors settled in Newfoundland in the territory of the Mi’kmaq and Beothuk peoples. She is a PhD candidate in the Department of Political Science at Dalhousie University.
We have been working with community and university research teams on questions related to northern and Indigenous women’s well-being and participation in policy decisions for the past decade. We work in several territories and in collaboration with Northern and Indigenous women, community organizations and representatives from municipal, First Nation and Inuit governments.
This evening, we want to offer three key points that underpin our support of Bill C-69. These points align with the three points we have detailed in the written submission that you have received from us.
The first is that our research strongly supports the expanded focus of the Impact Assessment Act through the mandatory factors for consideration in impact assessment, but particularly the intersection of sex and gender with other identity factors. Applying a gender-based analysis plus framework is critical because, as you have just heard, there is a significant body of evidence demonstrating how Northern and Indigenous women are uniquely affected by resource development projects.
For instance, women often report experiencing increased rates of gendered and racialized violence, compromised food and water security and challenges accessing affordable housing. Further, the often-celebrated economic benefits from resource development do not necessarily accrue for women in the same way. For example, a lack of child care in many northern communities is a barrier to employment. When women do work directly in resource-related jobs, they are most often employed in typically feminine roles, such as in cafeterias and housekeeping, which typically have lower wages than the more lucrative trades positions.
Second, our research demonstrates the importance of giving Indigenous women’s voices and experiences explicit attention in the configuration of consultation mechanisms and supporting structures within the act. Specifically, we think it is critical to include Indigenous women in the constitution of the minister’s advisory council, in other committees constituted through the act and during consultation associated with specific projects.
The main point we want to highlight here is it is simply not possible to attend fully to the mandatory factors for consideration under the act without being guided by and hearing from women.
At the same time, our research also demonstrates that Indigenous women face unique barriers to participation in the process more generally, including, for instance, that the location of hearings can be inaccessible and that the format for hearings can be intimidating. Recommendations for improving consultation processes include ensuring Indigenous women play a leadership role in the process and working with Indigenous women’s organizations in developing and implementing consultation processes.
Third, our research highlights possibilities for ensuring more genuine efforts to link western science and Indigenous knowledge for the purpose of informing impact assessments. This point relates to several references to Indigenous knowledge in the act, including that one of main purposes of the act is to ensure that impact assessments take into account scientific information and Indigenous and community knowledge.
We see the potential for Bill C-69 to offer a meaningful way forward in impact assessment that does honour the principles of free, prior and informed consent and is attentive and responsive to the experiences of Indigenous women. In order for this point to be realized, we have to recognize how Indigenous knowledge is often marginalized in current environmental assessments and shift how we think about the relationship between Indigenous knowledge and western science.
Through our research, we find several ways of linking Indigenous knowledge and western science without marginalizing Indigenous knowledge.
In conclusion, we see this as an important moment in time given the federal government’s commitment to undertaking gender-based analysis plus and its commitment to honouring the United Nations Declaration on the Rights of Indigenous Peoples. Bill C-69 is certainly not perfect. However, it represents an important step forward in addressing the persistence of colonialism and an opportunity for more effectively considering the experiences and knowledge of Northern and Indigenous women in impact assessments. Thank you.
The Chair: Thank you very much. We are going to proceed with the question period.
Senator Cordy: Thank you all so much. This was a very impressive panel of witnesses here today, and we have heard things we have not heard a lot about before.
I’ll start with Chief Montour. You talked about Bill C-69 being a compromise. Many people look at the bill and think it is an oil and gas bill, but it is not, and your presentation clarified that extremely well. We are looking at the environment and industry together and this bill is a compromise. I know that yours was one of the groups that took part in consultations before the bill was developed.
Will the changes in Bill C-69, in comparison to what was already in the legislation from 2012, make it better for First Nations in relation to protecting the environment while, at the same time, optimizing projects on Indigenous lands?
Mr. Montour: In a word, yes. The thing is that what exists now is insufficient to the cause, from our perspective. It’s not perfect. We hold the view that this is not perfect. However, it is much better than what currently exists. Our position is to encourage this as a step forward, and this needs to be a continuing process in terms of engagement.
We don’t have an anti-approach to any kind of development, per se. What we have is a profound sense of responsibility for the environment in which we all live — our people and everybody else in Canada, in our territories and in our areas. That’s something we take very seriously, as I said.
Moving forward, there is one thing that I have to confess always confounds me in my short time on council. I hold a portfolio for consultation, Indigenous rights and research. More and more, I find that when we come into contact with proponents or ministry officials, DFO, Minister of Transport, the question always comes up: Are we engaged in just a check-box affair? Is consultation real? Is it something that really matters or not?
Sometimes, frankly, we have felt — and we see — that our consultation has not really been included and infused into projects. We have talked about the need to have the triggering of regional assessments. We may be far removed from the mouth of the St. Lawrence, and yet we see cumulative effects — not on a per-project basis; we see it as being cumulative all the way down the line.
We talk about things like this. I realize we are talking about energy here, but if we talk about the environment in terms of fish species, oftentimes there is a focus on specific targeted species of fish, which form only part of the environment.
Chief Constant spoke about Indigenous knowledge. I come from a world view where we start our meetings and conversations based on something called the Ohen:ton Karihwatehkwen, which are the words that come before all others. It is an acknowledgement and recitation of all the elements of creation that we can name. It is an acknowledgement that all these things perform and function in the way they were intended, but as humans we need to bring ourselves into harmony with those things, or else we threaten them; and when we threaten them, we threaten our own existence.
I don’t know if that answers your question, but that is our position. So it is better.
Senator Cordy: I probably don’t have time for a question, but I just want to say, Chief Constant, Ms. Constant, Ms. Levac and Ms. Manning, this is the best description of why we need clause 2 in the bill on gender-based analysis. I had read in articles in the paper about why is gender-based analysis in this bill. Listening to you today, you have given the best description I have heard of the necessity for it. When you are in the North and see the challenges and the effects that major projects have on girls — younger girls particularly — it has to be part of the impact assessment. You made your points extremely well.
The Chair: I cannot agree more with Senator Cordy.
Senator LaBoucane-Benson: My question for Chief Montour was answered in his last answer. Everybody on this panel is interested in increasing certainty and decreasing litigation risk. It seems to me one of the best ways to do that is to ensure the federal government discharges its duty to consult. That’s one of the key drivers in this. I thank you for your answer.
I apologize; this is a very quick, yes or no answer. But do you think Bill C-69 compels the federal government enough to discharge its duty to consult? Do you think the framework is there?
Mr. Montour: As I said before, it’s a start.
Francis Walsh, Legal Counsel, Mohawk Council of Kahnawà:ke If I may add some elements to that. We feel strongly that all the elements outlined in clause 22 for the impact assessment will definitely help the Crown to discharge the duty to consult in a more efficient and effective way through impact assessment. I think that will actually end up shielding a lot of decisions from judicial review applications — if it is done properly, of course. If it’s not done properly, then of course that is off the table. If all the factors outlined in clause 22 are properly assessed, I think that will limit litigation risk for project approval.
I think where we may have been less satisfied with Bill C-69 is at the end of that process, the decision-making aspect. We echoed some of the comments made by Chief Constant about final decision-making approval authority and consent and FPIC not being quite reflected in Bill C-69. But, as we mentioned, it is a big improvement. We do feel that a rigorous assessment under clause 22 will help provide the certainty that people are looking for.
Senator LaBoucane-Benson: Chief Constant, I’m very grateful for your presentation. My colleague has talked about devastation in Indigenous communities. I had not heard a lot about this, and you gave us a clear picture. If I had a magic wand and could wave it, and we could go back in time and the government actually did their duty to consult and accommodate for your community, what would you have negotiated for a different outcome for your community, to protect your community? I think a lot of the people on the panel get worried and concerned: What does this mean for proponents? Will we never have a project?
I hear you say you are not anti-development or anti-resource. What would you have negotiated to protect your community?
Mr. Constant: I think the biggest thing that was lacking was the law enforcement aspect of it. You put these major projects in the territories. We have a camp right now that has 2,500 people, and there is no law enforcement. I think that would be key in preventive measures when it comes to the impacts we see on the women. Right now our women are really vulnerable. They are scared. There is a fear inside of our women in the North when a project comes into play: Are they going to be protected? That’s why we are here today, to advocate for those women who have that fear. I think that would be the biggest key in eliminating a lot of the concern around that.
Senator LaBoucane-Benson: That’s a very measured and reasonable accommodation to request. You are not saying a veto on this; you are saying: Can we really protect our citizens? I think that’s really measured. Sometimes I feel like we’re just talking about this as if First Nations are going to absolutely say no, but they are just asking for very reasonable accommodation to protect and to ensure the environment is protected as well. I thank you for that answer.
Senator Mitchell: Thanks very much to all of you. These have been excellent presentations.
I am very interested in GBA, which a number of you commented on. It has been controversial, but it’s essential, from my point of view.
Early on in the discussion, the focus on GBA has been violence against women. That is, of course, the priority issue, I would expect. Certainly we have heard that from your presentations. Senator McCallum and others have been persistent in their advocacy of the importance of GBA because of that.
I’m also interested in something that has not been as prominent, but the point was made by Professor Levac, and that’s the question of food and water security and housing. Could you explain the dynamic that differentiates those issues as a greater pressure and challenge for women surrounding these projects than perhaps for men?
Ms. Levac: Sure. I can try to offer a few key points.
One idea that we can think about in this regard is that often we find in our projects that women and men hold different responsibilities around food provision in their communities and so the impacts on food security can be different depending on which kinds of food sources are disrupted.
Another way of thinking about factors related to housing is to say that, as in much of the country, we see high incidence of low income with one-parent families and a significant issue in northern communities with the arrival of extraction projects is increase in costs of living because housing prices increase. When lone parents, who are disproportionately women, are responsible for trying to maintain housing in increasingly cost-restrictive environments, it can have a different kind of impact on women and their children. Those are a couple of ways that I can characterize some of the nuances and differences that we see.
Susan Manning, Researcher and PhD Candidate, Dalhousie University, The Canadian Research Institute for the Advancement of Women: I think I would just add that it is especially women who are experiencing intergenerational trauma, who are struggling with addictions or mental health crises or who may have low levels of education would be especially vulnerable to becoming hard-to-house — some community organizations use that terminology — or even homeless in that context.
Women we work with in Happy Valley—Goose Bay, Labrador, have noticed very high increases in the rates of homelessness in that community as a result of the Muskrat Falls development and the higher costs of living that has come with that. That’s another way that different groups of women might be affected.
Senator Mitchell: Ms. Constant, you mentioned violence against women as a prominent issue, and it is, of course, but it’s also true that probably to some extent the economics of housing and food and food security are an issue. I wonder if you can reflect on your experience and your knowledge of that issue to give some more context to the committee.
Ms. Constant: What I’ll say is that right now I sit on the board of the Keeyask partnership board. I’m also in the community, so we hear from our women how they’re impacted, particularly being sexually harassed and violated either at the camp or outside of the camp with the men who are in the camp.
What I would say here is we need awareness, we need public education and tools for the young women who are going to work at these camps. We need more appropriate tools for them to know what to do should these things happen to them in future projects. Those are the kinds of things that we’re starting to look at and trying to address for our community. We’re having a gathering of women to talk about those kinds of strategies for women, because we know that Keeyask is not going to be the last development project. There will be future projects that will continue to affect our women.
Those are the kinds of things that we need. We’re trying to impress upon hydro developments, which is the only industry proponent that’s in northern Manitoba at this time, because the processes that hydro is undertaking at Keeyask, even though we push at the board level, we’re saying it’s not adequate yet. They’re not hearing us a lot of time. We feel they’re not doing things fast enough for us to be able to protect the young workers at the camps, like I said.
We’ve said that our women, including myself, have been impacted since the 1970s in terms of being sexually assaulted at the camps. We’ve asked hydro to establish some healing programs, establish a healing centre in northern Manitoba for women. We’ve also asked for a public inquiry because we know that we’re not the only community in northern Manitoba that has been impacted. We’re not the only community with women who have been impacted. There are other communities in northern Manitoba, including our neighbour communities like Fox Lake, Grand Rapids and South Indian Lake. Those communities are working on different strategies as well. That’s what we’re trying to push for, some healing strategies, a healing centre, some public awareness. We wanted, like I said, resources and tools for our young people.
[Translation]
Senator Carignan: My question is for Ms. Manning and Ms. Levac, and it deals with Indigenous knowledge. We all recognize the importance of Indigenous knowledge. Section 84 states that this must be taken into account in the factors when a decision is made. However, the legislation will also apply abroad. Subclause 84(2) states:
However, if the project is to be carried out outside Canada, the authority’s determination need not include a consideration of the factors set out in paragraphs (1)(a) and (b).
Paragraph 84(1)(a) is self-evident because it is section 35 of the Constitution Act, 1982, but paragraph (b) refers to the Indigenous knowledge provided with respect to the bill. So it is as if indigenous knowledge is of less importance abroad than in Canada, when we know very well that Indigenous knowledge, regardless of the country, in Mexico, for example, is just as important.
Do you think the bill should be amended to take into account Indigenous knowledge outside Canada as well?
[English]
Ms. Levac: Yes, senator. Thank you for the question. My sense is that all around the world, in order for us to uphold and honour the United Nations Declaration on the Rights of Indigenous People, we will need to think carefully about what that means in terms of our international collaborations. In terms of a specific amendment to this bill in that regard, it seems to me that my colleagues from Kahnawà:ke or York Factory have done more thinking about the way their nations interface with Indigenous knowledge in other countries and might have more specific reflections on the matter. My general reflection would be that in thinking about how we meaningfully respect Indigenous knowledge we will need to think more broadly in terms of what that means in our international relationships as well.
Mr. Montour: The United Nations Declaration on the Rights of Indigenous Peoples was co-authored by a friend and relation of mine, Mr. Kenneth Deer, who has functioned at the United Nations level throughout its development and before.
One of the things we want to stress is that it is important for us as Indigenous people to define the United Nations declaration, its impact and how it should be respected within the states that surround us. Canada is a state, and it impinges in many ways on our traditional territories. It has impacts on our right historically. It’s a continuous kind of a struggle. I think that’s the starting point.
As far as the Indigenous people from other parts of the world — because there are Indigenous people all around the world — sooner or later, everybody is Indigenous to some place. I would say that’s important.
How it ends up being defined and how it functions in Canada is something that will have to be looked at over time. Here in Canada alone, in terms of Indigenous knowledge and the right to intellectual property over Indigenous knowledge, those are things that have to be wrestled with within this framework and country. Wherever we have Indigenous people in Canada, we need to look and see how they define those things for themselves in their own territories. That’s certainly how we look at it. We embrace all of our Indigenous brothers and sisters, wherever they may be, in terms of that. This is a worldwide process.
How it moves forward is key. The current Government of Canada started out stating that it had the intent to fully implement the United Nations declaration. There are questions as to whether that has been modified on the part of the current government. Certainly, the previous government voted against it, along with the United States and, I believe, Russia, of all places. We see the relationship as something that needs to be built and worked upon.
As a Mohawk, from our perspective, we are always thinking in terms of a way of framing our relationships with others in terms of a Two Row Wampum relation, which is always the best hope for the kind of relationship to have. Even that has never been perfect. Early on, we say that our ancestors met your ancestors, or many of you in this room, and we realized early on that the newcomers were here and we had to live side by side. We had to decide how we could accommodate that. There were things in terms of trade at the time that were and became necessary for us. Therefore, the relationship became necessary.
We needed to create that paradigm, if you will, of two vessels moving down the river of life, each in their own vessel, ours in our canoe. The Dutch referred to it as their ship.
Sooner or later, we came to realize there would be some movement back and forth, and there would be a need to work on a relationship. So we then came forward with an approach to dealing with that, which we call the silver covenant chain, which needs to be constantly polished. The first link in that chain is friendship. That’s our relationship, hopefully — friendship. And it’s coming into it with a good mind. Then you end up in peace.
Senator McCoy: Thank you all for being here. It’s been very helpful. My question is really Senator LaBoucane-Benson’s question, I think. Many of us are not familiar with the process of consultation with Indigenous people. It just hasn’t been part of our personal or professional experience, so it’s a mystery tour. Your response from Manitoba was very helpful.
I’d like to ask Chief Montour — perhaps this is a bit too abstract way of asking, so perhaps you can make it more concrete in your reply so we can understand. You talked about meaningful or proper consultation, and my brain wonders what that looks like. What are the indicators of that? What are the hallmarks of proper consultation?
Mr. Montour: If I could, I tend to be a storyteller.
Senator McCoy: Yes, that would be very helpful.
Mr. Montour: One of the senators mentioned in passing — I didn’t hear all of the comments — the St. Lawrence Seaway. At the time the St. Lawrence Seaway came to impact Kahnawà:ke, my grandfather was one of the chiefs there; he had been chief. At that point in time in our history in our relationship with what we’ll call the “settler people,” the Canadian state, it was one where there was really no consultation. There was none. There was an assumption on the part of the governments that spearheaded that project that it was going to take place.
So expropriation was used and the creation of certain land-holding constructs were used to divide people. I recall hearing from my mother that my grandfather said, “You can’t take this land, because it doesn’t belong to this person or that person; it belongs to all of us in common.” So they came up with a process of individual lands-holding to individual property called certificates of possession, and that was used to divide people. That was in my lifetime, as a result of the St. Lawrence Seaway and the absence of consultation.
Just a presumption. To me, this is the doctrine of discover 101. Just by right of whatever, whether it’s the royal proclamation or anything like that, it’s just decided you could do that. You could say, “Take our land.” Because of that, within my own family history, we were impoverished. My mother was a single mother. She lost my grandfather’s house, which was to be hers. So that had dire impacts on us.
So when you talk about what would be proper consultation, proper consultation takes the process seriously. If we engage to say we are going to give input on the impact of projects that may have an impact on us now and in the future on our rights at any level, to exercise our rights within our territory, and also have concern for the environment, which extends beyond the current boundaries of the postage stamp we now call Kahnawà:ke, that’s our responsibility as Mohawk people and as Indigenous people in our territory.
Proper consultation is one that takes us seriously, that listens with respect, takes into account our traditional knowledge and then arrives at a point we can all live with.
One of the concerns that we have discussed prior to coming is that some of the questions have been asked: Are we looking for a veto? Are we looking to control the energy agenda in Canada — no projects? My answer to that is, no, that’s not what it’s about. But I would also ask the question: At what point do you look at whether a project should not go forward? I think that’s something that needs to be entertained.
I don’t know if that answers your question.
The Chair: Thank you so much. We need to move on, I’m sorry.
Senator Stewart Olsen: Thank you for being here. My questions will be for Chief Constant and Ms. Constant.
I have some second-hand experience, but I know when Churchill Falls was being built in Quebec, band after band were relocating to various areas. Particularly one that I know of had very limited contact with civilization as it was then. My dad saw them coming down to Schefferville, and he told me the first-hand experience of what the people really suffered, the women and the men, actually. So I have a great deal of sympathy for what you’re expressing because I know that it happens.
I don’t like gender-based analysis, per se, because it has no teeth. In fact, if we really ask was a gender-based analysis done, rarely do we get that gender-based analysis presented to us for review. It’s appalling that companies are not expected to enforce a code of conduct with their workers. If these instances of abuse are happening — and I agree with you, Chief Constant, it’s the enforcement that really makes a difference. I’d like to see what you might think of what kind of teeth we could put into gender-based analysis to make sure that it’s not just there and it’s pretty on the paper and looks good. What can we do to make sure that the abuses don’t actually happen in expectation?
Mr. Constant: You can speak to that one.
Ms. Constant: Not only are we saying there should be police enforcement in the camps, but the camp at Keeyask in the last three or four years, the population at that camp is 2,500. That’s a large camp. There’s no police presence there.
The other thing that we talked about is there should be child abuse and criminal record checks of workers, and there isn’t right now, not at Keeyask, anyway. We were trying to find out if the other camps up north, like there is a Keewatinohk converter station that Douglas recently built that had a camp too. We were trying to find out if that camp — it’s closer to Gillam — we were trying to find out if that camp had those requirements for workers at their camp. I’m not really certain at this point what size that camp is but it’s large too. Those are some of the things that we would require this committee to look at, those kinds of requirements for corporations or industry.
Senator Stewart Olsen: So the gender-based analysis should have some real set down principles, criteria and agreements, if you go ahead with this project, then you have to monitor this, this and this. I’m not just saying for Indigenous people but for all workers that should be happening as well. It’s kind of appalling that you have industries or whatever setting up in our country where workers are abused.
Ms. Constant: I want to add a bit of my own personal experience. I was 18 years old when I went to work at that hydro project that’s right beside our community of York Factory where it is right now at York Landing. I was 18 years old when I went to work there, and I was sexually assaulted by a worker there. I did report it to my camp supervisor, and they removed the man. I don’t know where. I was only 18 years old. I didn’t really know anything. I don’t ever recall being taken to the police to file a report but also to be seen by a doctor as well. Those are some of the things that are real that are happening or have happened.
The Chair: Do you want to add something? Go ahead.
Mr. Constant: Thank you. I want to add an additional comment to that. We look at the law enforcement side more so as a security for projects moving forward, but, like I said, in the past we haven’t had a process involved like that where as she mentioned about the criminal record checks and child abuse registry checks, that is not a requirement to come and work at these camps. They go through Manitoba on a job referral service and that’s how they’re screened into work. Obviously being a partner in the project we have preference to employment. That was negotiated through the agreement.
We get a lot of workers from out of country. We get people from all over the world coming to work in this camp. I think that’s where the line is crossed where you don’t understand the territory. I think some of the terminology is a lot different than what they’re used to where they come from. Educating them on where they are is a piece we really had to advocate for.
They do cultural awareness training when they come into the camp, which is mandatory when they enter. I think that does help in a sense. It’s an attempt to educate people who come from all over the country to work in our territory, and we feel it’s a tool. Is it an effective tool? Do we really get our message across? We don’t know. But just saying we made an attempt is good enough for our First Nations.
There’s a major history with all the development in the hydro. Like I said, you talk about consultation. There was nothing done until within the past 20 years, when we finally started being consulted. There’s development that occurred without Indigenous consultation. I just wanted to add that for the record.
Senator McCallum: First of all, I wanted to apologize that you had to wait to make your presentation. As our guest, you have travelled a long way to tell your stories, and I’m very sorry.
I wanted to say that with the gender-based analysis, when we were in Winnipeg, Amnesty International, and Connie Greyeyes spoke about the framework they have, and they presented it to industry. When the proponent looked at it, he said, “This makes sense and yes we’re going to use it.” I think they were going to submit it.
I wanted to add the comment that all of what’s happening to First Nations is an issue of consent and human rights and the displacement that keeps occurring. This is an issue that I’ve seen my ancestors go from birth to grave with this issue of consent and human rights violations in our lives. It’s unacceptable in Canada. This is our home. I don’t know if you have any recommendations for that so that things change and proponents don’t just walk in and feel that they own the territory and they can do whatever they want without asking for your consent. Because if we look at the issue of consent and people don’t want a United Nations declaration to go through, it’s actually a reverse form of veto on First Nations human rights.
The Chair: Do you want to comment, Mr. Walsh?
Mr. Walsh: If I could make a brief comment, I think part of the way to achieve consent, especially for large projects, when we are talking about land use and displacement, is really highlighting the need for these regional and strategic assessments because that’s where the high-level issues about land use need to be made. It’s not at the project-specific level when the proponent decides we’re going to use this corridor to develop this project, and there’s no consultation and there’s no strategic or regional assessment to support the identification of that geographic location.
I think if we do these high-level assessments properly, I think that could be one of the ways in which we could address this problem.
The Chair: Thank you very much for your presence, and thank you very much for your testimony.
For the third portion of this meeting, we now welcome as individuals Brenda Kenny, as an individual, and Wade Locke, Professor and Head, Department of Economics, Memorial University of Newfoundland.
Thank you for joining us. You can proceed with your statement.
Brenda Kenny, as an individual: Thank you very much for this opportunity to appear at a very crucial time. I hope you’ve received my bio; I sent it in. I won’t go over that, but I will say my experience spans many sectors, regions and roles, and I’m appearing as an individual but I will be drawing from an array of experiences in my remarks today.
You have been tasked with reviewing a very specific piece of legislation and as you consider this bill and amendments, you know that the issues raised cannot be solved in a single lens or a single piece of legislation. And the result of your leadership will impact Canada’s success in the 21st century. I applaud you in your efforts going forward.
I want to begin with simply saying: What is the intent for Canada? What is our intent? And I hope that the following statements will ring true as real, not simply some aspiration or well, maybe. These words may be something to consider in terms of preamble.
I would say — and I hope you agree — we have to be very intentional. Canada will excel. Canada will achieve both environmental conservation and economic strength. We will leverage our deep know-how and history of striving for excellence to innovate and deploy new technologies to make Canada better and to build a diverse and global economic base for the next century. And we will start where we are, responsibly leveraging the resources we have — human, financial and natural — to make Canada stronger, more secure and sustainable.
And as you consider Bill C-69, please ask yourself if you believe these statements and please consider whether the way forward builds toward that intent.
The objectives of any regulatory renewal must fundamentally be about delivering policy objectives within that intent for Canada front and centre. I think you’ve heard from many stakeholders and largely, as I look at the testimony, the basic public interest expressed, the basic objectives are in fairly close alignment, be that environmental protection, Crown consultation, support for economic growth and the like. But we must also be honest and clear and that is where policy frameworks are absent or opaque, no assessment can solve the gap. I would suggest that that is a critical underbelly of why trust has been eroded.
We have challenges coming to terms with economy wide response to global climate change; Crown consultation, which we’ve heard of today; ocean protection as an aspiring trading nation with the intention to reach out beyond a captive audience of the United States, we are stewards of three oceans; and a vision and action to restore Canada’s competitiveness in the world.
These are difficult and they need to have resolve and foresight.
So that brings me to the focus on this bill and regulation in general, which I’ve spend much of my life around. I’ve always said you can regulate to compliance but you cannot regulate to excellence. Excellence requires a full life-cycle expectation that drives responsible development, where we are aiming at fears if we look at assessment from that lens, or are we renewing a system to drive to excellence?
In my experience, one project one assessment, informed conditions that flow into oversight, flow into operations and deeply connect to overall systems of pursuit of excellence drives superb results. That’s not always relevant, I realize, in what you are addressing because not all sectors have full life cycle regulators. But where they are strong, many of the issues we look at in a front-end project assessment are addressed through a robust foundation of standards, things like emergency response, third party verification and the like. One of the key things I’m concerned about is the risk of severing of deep regulatory expert knowledge and expertise from project assessment.
Also, the scope of early assessment should focus on areas of interest that are truly unique and determinative about a project going forward so that a well-informed design can be accomplished. Making conditions, therefore, too political is also very high risk and should be eliminated. Condition-making should be rested on evidence and he who hears decides.
Are there specific areas of improvement and risk? Of course there are, and that’s where one wants to look not only at that one project but the system of governance.
So back to that. We need to be able to ensure — and there may be ways in this act to reinforce it — that foresight and leadership on a systems level is what makes for great project planning and, ultimately, appropriate assessment going forward. For example, our concerns about tanker traffic should never have been a surprise to anyone. We have said through many stripes of politics that we expect to trade beyond the United States. And yet, somehow, when we come to do that, it’s a shock. I think we could have seen that 10 and 20 years ago, we could have had robust mechanisms in place, good deep science. I can share examples of what was done from the industry side leading into that in some small measure.
On the subject of integrated knowledge, I would commend to you the report released last week by the Council of Canadian Academies chaired by Cassie Doyle regarding integrated natural resource management. It speaks very much to the importance as you have in Bill C-69, the importance of regional and strategic assessment. But it goes further and indicates the importance of wedding those things, again full life cycle.
The third thing I want to point to is to recognize how crucial it is to have active engagement around environmental, social and governance issues in both regulators and industries. You may be surprised to learn that Canada, in oil and gas, has been ranked the best in the world. We are spending more on innovation in Canada than anywhere else. About 70 per cent of the clean tech investment in Canada stems from oil and gas. That’s high impact here and globally, with spinoff benefits and know how that go well beyond just fossil fuels. I sat for 10 years on the board of Emissions Reduction Alberta. In that one enterprise — I currently chair Alberta Innovates — but in ERA, we have committed $572 million to reduce GHGs over 164 projects. But that’s been leveraged to a total value of $4.3 billion.
My central point here is that when we look at assessing projects it’s crucial that we don’t undermine competitiveness. The reason I’m here to say it is not only from what you have heard from other stakeholders but centrally if we care about progressing this nation, if we care about innovation, the partnership with the private sector is where the bang for the buck comes and where the deployment, use and piloting enhancement of those technologies come from. That is how we get next generation companies. Next generation companies are not born from Crown money going as a subsidy. They are born from people actively engaged in business.
In closing, briefly, I want to leave you with a couple of key messages. First, when you are looking at those amendments please aim at excellence rather than fear. We deserve that as Canada and that should be a key lens.
Keep life cycle regulators strong and accountable for system-wide results, including impact assessment, and make sure there is an integration of that knowledge and expertise. That means when you look at the project list only pull up projects that are truly unique, significant and different from that known of existing projects, particularly where life cycle regulators exist. Then scope that review, please, to tightly focus on those remarkably distinct components.
As we heard from the last panel, build on best practices that are in place. Don’t recreate the wheel with conditions that spin off in all directions. Leverage that best practice and make sure that, as we look at those systems of governance, that impact assessment rolls forward, the learning from that is open and finally that we leverage the data and information in this great country. The advancement in digital technology, big data analytics, predictive technologies, remote sensors, et cetera, many of the things we are concerned about on environment in Canada, we have fantastic skills and knowledge that can revolutionize how we look at integrated resource management and ultimately how we look at project assessment.
We have to make sure Bill C-69 does not unwittingly kill off investment, kill off innovation and ultimately undermine the objective we are most seized with. Thank you.
Wade Locke, Professor and Head, Department of Economics, Memorial University of Newfoundland, as an individual: I must say the previous panel was pretty strong and your job is not easy.
I’m going to make it a little easier on you. I will speak only about Newfoundland and the application of the bill for Newfoundland.
My name is Wade Locke. I am currently the Head for the Department of Economics at Memorial University. I specialize in public economics, specifically the fiscal situation for the Province of Newfoundland and Labrador. I also specialize in natural resources, with particular focus on offshore oil and gas and mining activities. As well, I look at the general circumstances of the economy of Newfoundland and Labrador.
I have been engaged by all levels of government: federal, provincial, municipal, Aboriginal groups, research groups, Crown corporations, local, national and international businesses and corporations. I have undertaken work in all three territories and all provinces except Quebec and Prince Edward Island.
I want to thank the committee for allowing me to come and share my views here on Bill C-69.
When considering Bill C-69, I want to encourage your committee to consider the potential negative consequences that the unamended bill may have on the economic well-being of Canadians in general, and Newfoundlanders and Labradorians in particular.
Before I raise my specific concerns, I want to emphasize the importance of oil and gas activities to the Province of Newfoundland and Labrador. According to the most recent information available on the Canada-Newfoundland and Labrador Offshore Petroleum Board website, nearly $60 billion has been invested in exploration and development and production activities associated with Newfoundland offshore oil and gas activities. There have been 1.85 billion barrels of oil produced and 470 wells drilled in Newfoundland and Labrador offshore, 171 exploration wells, 57 delineation wells and 240 development wells. No major environmental problems have been linked to these activities, indicating the environmental oversight of the Canada-Newfoundland and Labrador Offshore Petroleum Board has been working.
At its peak, oil and gas accounted for 36 per cent of Newfoundland and Labrador’s gross domestic product, and over 5,000 jobs. During the same period, the fishing industry accounted for 1.7 per cent of GDP and about 7,600 jobs.
Currently, the offshore industry accounts for 15.6 per cent of the provincial GDP, which compares to 2.5 per cent for the fish harvesting and processing industry.
Oil and gas has accounted for nearly 30 per cent of provincial government revenues at the peak and this fell to 13.6 per cent due to low oil prices.
Finally, at the peak, nearly 5 per cent of Newfoundlanders and Labradorians worked in the oil and gas industry in Alberta. Oil and gas is very important for the provincial economy. It has transformed Newfoundland and Labrador from an equalization-receiving province to a non-receiving province since 2008-09.
This summary should help your committee appreciate that oil and gas activities are important to Newfoundland and Labrador. Without the employment and economic activity, and government revenues, the residents of the province will have significantly diminished material standards of living. When combined with high per capita debt, high tax rates and lower services, this will have significant and negative implications for the residents of the province, making it difficult for young people to stay and be productive within the province.
It is imperative that your committee appreciate that oil and gas activities are important economic generators for the country as a whole and for Newfoundland and Labrador in particular. Oil and gas activities are not evil enterprises that need to be stopped at all costs or delayed to the point where they cannot be feasibly continued.
This brings me to my concern about Bill C-69. While all Canadians can accept that the environment needs to be protected and the impacts on the environment need to be taken into account when considering how best to exploit our natural resources, if as a result of Bill C-69 the approval process is significantly slowed down and uncertainty is added to the approval process, then we will have negative implications for offshore oil and gas investment and for the future prosperity of Newfoundland and Labrador. It is important to appreciate that oil and gas activity, at least for now, are important activities that contribute to the well-being of Canadians.
The Canada-Newfoundland and Labrador Offshore Petroleum Board has done a good job ensuring that the offshore oil and gas developments are undertaken in an environmentally responsible manner. There have been no major environmental problems associated with the 171 developed wells drilled today. It is a routine exercise to undertake offshore oil and gas drilling activities so that any potential environmental damage can be mitigated. Given this experience, it is important that exploration drilling and associated geophysical programs be specifically removed from the designated projects list or be exempted from that list.
Finally, it is important that the Atlantic Accord be respected so that Newfoundland and Labrador remains a primary beneficiary and the Canada-Newfoundland and Labrador Offshore Petroleum Board continues to be responsible for all environmental assessment processes pertaining to offshore oil and gas activities in offshore Newfoundland and Labrador.
Thank you for the opportunity to present my views on Bill C-69 and its potential impact on Newfoundland and Labrador.
The Chair: Thank you very much. We will start with the question period.
Senator Cordy: Thank you to both witnesses for being here. It’s getting later into the evening, and certainly late in Newfoundland and Labrador.
Dr. Locke, I’m from Nova Scotia, so I’m very familiar with the Atlantic Accord. In fact, even people in Nova Scotia who didn’t know about the Atlantic Accord learned very quickly what it was in the budget of December 2007, as they did in Newfoundland, because at that time there was less money given to Newfoundland and Labrador and Nova Scotia.
You’ve said that the Atlantic Accord should be respected. I wonder if you could expand on that, because you make some people a little nervous with that comment. It’s not mentioned in the legislation, but I’m just wondering.
Mr. Locke: The accord was recently renegotiated by the federal government and the Government of Newfoundland and Labrador. The things they didn’t negotiate were things like regulatory efficiency, which Bill C-69 would cover off. Right now, in my understanding, Bill C-69 would allow the minister — if there were environmental issues associated with it — to override issues around the ability of the provincial government, for example, through the offshore board, to regulate mode and pace of development.
For example, if you were too close to a slope or something like that, you might be able to argue that a GBS, gravity-based structure, might not be the appropriate one, or a floating production storage, off-loading system or a ship might not be appropriate.
The accord has made a difference to the province’s ability to be transformed into a significant economic generator for the country as a whole. It would be unfortunate if, as a result of this particular bill, things that are occurring and that are reasonable to occur, which allow Newfoundlanders and Canadians to earn a reasonable standard of living doing something that is perfectly legal and appropriate to do, is significantly affected by this bill.
Senator Cordy: I have not heard that even from the Premier of Newfoundland when he appeared, but it is a good question to ask the minister when she is here next week. Thank you for raising that concern.
Ms. Kenny, you spoke about being able to achieve economic strength while caring for the environment at the same time. I think that’s the balance this bill has tried to strike — that we can have economic development and we can care for the environment at the same time. Caring for one does not negate the other. Caring for the environment does not negate economic development. Caring for economic development does not negate being responsible for the environment. Thank you for that.
You mentioned that amendments should be excellent and shouldn’t be based on fear. What kinds of amendments were you looking at with this bill?
Ms. Kenny: I think the most important focus is the risk of overreach, number one, unnecessary degrees of scope, for example. When I’ve looked at this, I ask: Where and how do you need to look at that information?
If I can use an example from pipelines, you would typically, in crossing territory, have many, probably hundreds, of stream crossings, some of which are seasonal and others might be throughout the year. The temptation, if I’m concerned about water, is to look at infinite detail in each and every stream crossing. Unless the scope is clear that the fundamental question in the early stages — we should ask: Is there anything in that landscape that is unusual? If the answer is no, then you would ask the question: Is there anything about current practice that you’re concerned about? If the answer is no, then you would say: If we proceed with the project, best practice will apply.
It’s really a question of scope to focus on that and avoid the temptation of the minutiae that tends to become unwieldy in these large projects. I have lived as a senior regulatory executive and as a student of this as well. It can be very problematic unless you’re clear about scope and why you are looking at that front-end assessment.
Senator Woo: Thank you, Ms. Kenny and Professor Locke. I want to draw on Ms. Kenny’s admonition that we take a systems approach and maybe allude a bit to Professor Locke’s background in economics, particularly public economics, and the importance of institutional design in coming up with appropriate regulation for major projects.
My understanding of one of the cardinal principles of institutional design when it comes to impact assessment is that you need to create some separation between the agency that does the assessment of a project and the agency that does the regulation, compliance and enforcement of the licensing, rules and other requirements that govern the project.
This bill tries to do that. For some, it doesn’t go far enough. As you know, the new NEB will still have a role and the offshore boards will still have a role in the review panels and so on.
I’d like your view on this idea, which we have heard from experts all over, that the proper institutional design in terms of how we go about impact assessment is to create some separation between an impact assessment agency — let’s call it that — and the life-cycle regulator that does its job. As I say, the bill does not actually go all the way there, but can you please comment on the principle?
Ms. Kenny: I am going to be perhaps the outlier. Personally, in my lived experience of 40 years, I would disagree with that principle. I think you have to ask yourself where, how and why is separation important? If you are concerned that there is some overarching question about, say, a regional environmental assessment that needs to be taken into account to inform how a project should proceed, then that separation is fine.
However, when you are talking about the assessment of a project ultimately resulting in either a “no” or a “proceed and make sure these concerns are addressed,” in my experience that works best when the individuals who are seized with really understanding those risks are both extremely well informed about what those risks mean — not learning it as they go, but really know it; second, can see it through; and, third, can deploy through that whole life cycle the results people said at the beginning they were looking for. Extricating that and severing it is, I think, a major flaw that we need to cover over.
I would love to know what the policy intent is of that alleged —
Senator Woo: Well, that’s in the expert panel report, and we can send it to you if you like.
Ms. Kenny: I was on the NEB expert panel. As you know, we took a different view.
Senator Woo: Yes. I suspect that what the so-called expert panel would say are two things. First is the risk of regulatory capture, and the second is that impact assessment is much more than just the technicalities of, say, a hydro facility or a pipeline.
I would like to get Professor Locke’s comment. There is a huge amount of economic literature on this issue, and we want your wisdom from that literature.
Mr. Locke: In theory you are correct, but in practice you might not be. What would happen when you have a broad-based separate entity dealing with these kinds of issues is that they will have a tendency to treat all these kinds of things more or less the same.
For example, we have a lot of exploration activity offshore that lasts for 30 to 60 days per well. There will be an incentive, because they are on a designated project list, to go through a detailed assessment of each of those particular ones. That probably is not necessary, given that you have done it many times and your ability to mitigate is well known.
When you go into having a broad-based impact assessment agency, they will tend to use common sorts of rules because it’s fair. Some of the things that will apply in that context might not be the most effective way of dealing with it, and it can have the implication of adding uncertainty and slowing down the process.
Senator Woo: And if you could find a way to deal with these repetitive projects such as exploratory offshore dealing through regional and strategic assessments, perhaps that’s a way of ameliorating your concern.
Mr. Locke: My only suggestion for you was removing those kinds of activities that are well known and easily mitigated from the detailed assessment that’s being proposed in Bill C-69.
Senator Woo: That’s very helpful. Thank you.
Ms. Kenny: If I may, there was a suggestion from the NEB panel — I’m not here to speak for them, and I appreciate that’s water well under the bridge — but on these repeatable issues, we recommended is to recognize that there are going to be repetitive projects.
One of the ways through that, as well as the regional assessment, is to strike ongoing stakeholder groups. For example, think about Montreal. It has had four major nationally regulated transmission lines in and out of that city for decades. It would be very wise, for example, to have a stakeholder group of 20 or 30 individuals who, say twice a year, tackle what’s happened and ask, “What are we most concerned about?” Draw in those companies. Have the regulator there, too.
There are ways to avoid the risks you put on the table about regulatory capture by coming at systems governance in smarter ways. We don’t win systems governance excellence by removing expertise and knowledge of real risk from the assessment process.
Senator Patterson: Thank you for being here. Ms. Kenny, you talked about the one project, one review mantra as driving superb results, I believe you said, where the life cycle regulators have a strong role.
I have my own views about what Bill C-69 does, but I’m wondering if you could tell us how Bill C-69 measures up against that goal of simplicity — one project, one review — and the superb results you said can be achieved.
Ms. Kenny: There are some clear concerns. We talked already about project list scope. We need less political discretion, not more. We need clear action to address meaningful policy issues that get in the way of people gaining trust in the review process.
The current manifestation misses the mark. Some of your amendments may help with that.
I am a big supporter of strong and effective impact assessment. That is a central piece of what you’re trying to address, but it is about understanding the difference. Dr. Locke has been alluding to the same thing. There’s a vast different between the things we know how to do pretty well — need to get better and tested, and that’s where the excellence of one project, one review full life cycle is so important — versus what is truly exceptional that requires a deeper look and would be determinative in our public interest determination.
Senator Patterson: Thank you. You talked about the importance of the life cycle regulators. We’re fortunate to have possibly most of your lifetime experience in the energy industry.
I’m wondering if you could comment on a fundamental raison d’être for this bill, which is public confidence needing to be restored and that the National Energy Board — I think even our chair in the Senate said — had been discredited. I remember our chair saying that before we even began our hearings.
What is your view of the credibility of our regulatory processes, particularly the NEB, with which you are very familiar?
The Chair: I just want to say that it was not me saying that. I quoted it from a poll from CBC/Radio-Canada.
Ms. Kenny: Very good. I’ve read those polls as well. It’s a disturbing trend. Alongside polls you might have read, I would commend to you the Edelman Trust Barometer, which indicates a denigration across a large number of institutions. We have a serious problem, which is why I have a fixation on excellence.
There are two things. First, transparency is critical. I know this from my regulatory background and having worked in industry. I’m an engineer, and we are generally terrible communicators. We are also loathe to go and talk to people. I can say, unequivocally, that up until 10 or 15 years ago, the idea was “Get on with your job. Just keep things safe, and you don’t need to tell people,” but that’s not right.
Part of the trust is the transparency, and I think the NEB has tried hard to do that. We need more international benchmarking. I know that the oil pipelines in Canada are almost twice as safe as those in the U.S. I know the work of 60 years with the NEB of continuous improvement, driving toward zero incidents, has had amazing results in terms of our comparators on benchmarking, but that should be transparent.
I also think we need to share stories. One of my first jobs as a junior engineer at the NEB was to look at a pipeline failure. I was only one of two metallurgists on staff, and my recommendation was to the board: “As a junior engineer, looking at this, we don’t know what’s going on. You should shut this down until we do.” And they did. I learned early that people take action when it’s evidence-based. In that case, it was the right decision. And that line was replaced.
So I find it very troubling that we get sucked into this concern about trust without unpacking. We have trust about whether we have an energy plan in this country. We have trust about whether we have done Crown consultation with honour. Where do we go with that? That’s not about the logistics of a linear impact assessment; that’s about owning the big picture.
So I would say things you might consider adding. There should be an energy information office in Canada that tracks and benchmarks results, and has an annual report that has third-party verification and a stakeholder advisory group, for a start. I mentioned earlier about ongoing stakeholder groups. In Alberta, we’ve used synergy groups as a way to engage communities on an ongoing basis to ensure safety and effectiveness of operations. That also plays into transparency.
We could have in this bill a requirement that on an annual or semi-annual basis, this agency and others rally together and look at what’s on the horizon. What’s inevitably going to be a policy challenge for excellence in this country? If we had done that, the Oceans Protection Plan would have been in place for 15 years. The science that the Royal Society completed, paid for by industry but completely at arm’s length on the fate and behaviour of all crudes moving in Canada accomplished about four years ago, would have been done a decade earlier.
We need to own the fact that foresight, planning, good science and best practice are the foundations. From that, good impact assessments, project by project, have strong footings, instead of flopping around in a zone of fear, misinformation and a post-fact world, sometimes with abuses of process, with a different objective in mind.
Senator Richards: Thank you. You answered what I was going to ask, probably better than I would have imagined. You mentioned necessary levels of scope and minutiae of content, and this bill seems to be full of that. I know it’s not your job, but I would love you to give us three or four amendments that might challenge all of that, because we’re going to have a real problem coming up with amendments we’re all going to agree with here.
Professor Locke, this is more of a comment, but you said 36 per cent of Newfoundland income comes from oil and gas. We lost $36 billion because of Energy East being scrapped. That’s an awful lot of money for research for better times, infrastructure and hospitals. It just boggles my mind that this isn’t one of the major concerns of our country. Anyway, that’s all I have to say.
Ms. Kenny: I’ll give some thought to your question about amendments, but I would return again to scope and clarity.
One of the things I’ve found as an executive at the National Energy Board years ago was that you had to be extremely disciplined about how you would use that information you’re about to ask for. One of the easiest things to do as someone doing an assessment is to say I’m still not sure, let’s get more details. It’s free. It takes 10 minutes to write 20 questions. It might cost the proponent a couple million dollars. It’s the discipline around whether that information is actually going to make a difference to your job. If it isn’t then maybe you’re just kicking the can down the road and it doesn’t actually accomplish the outcome you’re looking for. That’s a key thing. I think the scope is key.
I want to return to intent. You’ve alluded to this issue about how one looks at development in Canada. A similar example, and I’m obviously involved with innovation and clean tech heavily now, when I look at the numbers of Alberta having given to the federation $230 billion over the last 10 years — which I know from my neighbours and myself, generously and without begrudging — that’s money that we chose as a country to fan out as opposed to investing in clean tech and next generation. We have choices to make there.
Finally, because it’s relevant to the intent and the scope, amendments have to make sure we don’t get caught up in someone else’s narrative. I spent three weeks in January cycling back roads in India. I know what gender issues look like when women spend their days gathering dung and sticks to cook dinner because they’re so energy impoverished. You don’t think that affects economic development and options for education and other things women would prefer to be doing? That’s partly because we have been paralyzed in getting LNG off of our coast using some of the cleanest technology on the planet and recirculating those funds for the benefit of Canada and energy poverty in India.
My point is, when you look at amendments, please try to find ways to be aspirational and manage the focus on something that’s positive for Canada.
Mr. Locke: An easy amendment is to exclude offshore wells from a designated project list that won’t affect any of the other things you’re talking about. You should be aware that Newfoundland has a plan to double daily production by 2030. It cannot happen with Bill C-69.
Senator Mockler: This morning I was at a panel and it was chaired by a former ambassador of Canada and Premier of New Brunswick, Mr. Frank McKenna. He said that he viewed worldwide — you should have been there, the sponsor of the bill. You would have loved it. He said in the eyes of the world Canada is being seen as a country not to put money in. Then I’ve had the opportunity in the last two to three months to talk to stakeholders in Atlantic Canada. I’d like to have your views on what is being proposed or asked as senators, parliamentarians, to make amendments and make changes and bring to the attention of government problems with the — I say this to the sponsor of the bill — clarity.
Bill C-69 should be amended to exempt offshore activities of short duration for which there are well understood impacts and mitigation from the designated project list. I’d like to have your comments on that.
Second, on Atlantic Canada and Newfoundland and Labrador, Bill C-69 limits the number of representatives from the Canada-Newfoundland and Labrador Offshore Petroleum Board that can be, it said, on a review panel. The limitation should be removed. What do you think of that?
Mr. Locke: Clearly, I’m in favour of removing the repetitive short duration activities such as exploration drilling from the list. With respect to the limitation of people from the board on the impact review panel, we should try to take full advantage of the knowledge that’s been generated and the expertise that’s been generated for their specific focus. They ought to be included more fully on any impact panel.
Ms. Kenny: I would add that your language about when projects are well understood and impacts and mitigation are well understood they should be excluded. I would recommend that would be something you might consider for pipelines as well, considering that you have a strong full life cycle regulator either in the National Energy Board or in key provinces such as the Alberta Energy Regulator. In Alberta today we have about $5 billion worth of natural gas projects planned to augment, streamline and renew that major natural gas infrastructure. I sat on an expert panel for that for the provincial government recently and there’s grave concern that this bill would unnecessarily and unwittingly stifle that type of development. It’s not the intention to do anything other than use existing right-of-way and improve the capacity.
Senator Mitchell: Welcome to both of you. Thanks for your presentations. I have to say it’s nice to see Dr. Kenny again. There was a period of time where she was head of CEPA that she was practically an honorary member of this committee because she appeared so frequently before it and was always as helpful as she is tonight.
You have made a point, Dr. Kenny, that it’s very important — I don’t think anybody would argue this, this is a powerful point for you to reinforce — to have an early, as you put it, scope to focus. It has kind of a nice ring to it. I believe that’s an integral and significant feature of this bill because the bill calls for five outputs and an early planning process which is now official, has requirements and obligations of government which don’t exist in the unofficial kinds of early planning processes that go on now. One of those five outputs is a tailored guideline document which will take the 20 elements in section 22 and tailor them specifically through section 18 into that package that needs to be done in this specific project. Are you aware of that and what impact it might have?
Ms. Kenny: Yes.
Senator Mitchell: So scoping to focus is a consideration in this bill?
Ms. Kenny: It is, but I think it still lacks the clarity you need.
Senator Mitchell: So if you had more clarity you’d be happy about that?
Ms. Kenny: Directionally it’s a good idea. I think you need to clarify what the project list is. I think you need to clarify what else you might add to that list. For example, do you have any degrees — what are your degrees of latitude. Finally, is it the subject of a major impact assessment to look at policy gap areas or not? How do you handle that? I would say the primary driver of the loss of trust in the regulatory system has not been in the process or the evidence-based, science-based approach but has fundamentally been that the regulatory process — and the same will happen here — is not able to address policy gaps.
Senator Mitchell: Part of the reason why you’ve made an extended list of elements, which I believe can be refined further?
Ms. Kenny: You still have to resolve policy in an impact assessment.
Senator Mitchell: I agree. I don’t think it’s policy. It needs to be tailored and that’s what the guidelines are there for. You spoke about the project. That brings me to my question for Professor Locke. Thank you for your presentation. It seems to me to be a rather half empty rather than half full presentation.
You focus on this idea that somehow Bill C-69 would do nothing but slow up the process. I can tell you there are all kinds of places where it will actually speed up the process and actually none where it will slow up the process over what we’ve got. One in particular you’ve referred to, and I would like to emphasize that and seek your reconsideration of your point.
In fact, offshore exploratory wells now require, each one, an assessment — one, after one, after one. If you look at the project list discussion paper, the first one that was produced, it’s very clear that the government’s intention is to have regional assessments, which you would umbrella over a region under offshore and it would say: If you need to do 100 exploratory wells in this region, you don’t have to do 100 different assessments.
That seems to me to be a pretty significant way to speed up the process under Bill C-69. It’s in that document, and it could certainly be firmed up as a way of off-ramping these kinds of projects for the project list.
Mr. Locke: First, current legislation, Canada offshore approval is about one quarter or four times longer than, for example, Norway, the U.K. or the Gulf of Mexico.
Senator Mitchell: That’s why we’re fixing it.
Mr. Locke: I understand that. Using the current approval rate as a benchmark is probably not the best one. Going with a regional assessment for an area seems a reasonable compromise as well.
Senator McCoy: Thank you both for your presence here tonight and your insights. A central point I’m hearing is that there are different levels and different decisions that have to be made. I think the Premier of New Brunswick was getting to the same concept, giving it some form, when he said: Let’s all decide across the country that we’re going to have an energy corridor and we’re going to add a pipeline for wine and beer, which was the best idea of all.
That is the kind of a major policy or strategic decision. Once you’ve come to that agreement, then you have other pieces that you have to put in place for the project, the life of individual projects, keeping in mind that these projects last anywhere from 30 to 50 or 60 years.
In all of that spectrum, if you were looking at this in a systemic way, the impact assessment piece — which, if there are no delays, is about a five-year exercise at the beginning of a project — that is a minor piece and it isn’t what gets you to excellence during the other 45 or 50 years of this project’s life.
Ms. Kenny: Right.
Senator McCoy: Now that you’ve agreed with it, let me go on to another question quickly, since I have Senator Dalphond’s permission.
An often-stated rationale is that we need to re-establish public confidence in our regulators. I’m going to put the question this way: Really what we are saying is that the regulator became captured by the regulated. That’s the reason given. The charge laid against the NEB was that it became captured by the proponents, the owners of the companies that deliver international and interprovincial pipelines and transmission lines. Those are their clients.
Let me ask the question, then. Do you think politicians are ever captured by their clients? Could you put that answer into words? The next question I have is this: Do you think that civil servants, as in an impact assessment agency, do you think such institutions in the civil service are ever captured by their clients?
Ms. Kenny: Would you like to start?
Senator McCoy: Please be frank in your response.
The Chair: Who’s going to take the question?
Ms. Kenny: I think all of us have to look in our own hearts at any moment in time and make sure we’re disciplined about being as objective as possible. There’s always risk, I think, of any of those actors, but I believe the institutions of working collaboratively on excellence have reduced that risk very much.
With respect to some of the amendments you may want to consider in this bill, for example — and I believe a few other stakeholders have come forward with the idea that it doesn’t go to one minister, but three, or a cabinet committee. As a scholar of sustainable development, that has a lot of appeal to me, because any one pillar is probably not the ideal situation. So that would reduce that capture.
I think it’s always a risk. Therefore, like anything else, what are you doing to mitigate the risk? If you feel that somehow you have a risk that a regulator might be captured, what are you doing in terms of stakeholder groups, third-party verification and the like? I think that largely in Canada that has been occurring.
This may also be something you want to look at, particularly given the premier’s comments and your return to the question of corridors as an example. With foresight of what Canada anticipates, there are many things that government itself could get out in front of and do its own impact assessment. Part of the problem, I think, is the dynamic that somehow some company steps forward and says: In the public interest for Canada — if I go back to the 1950s — getting natural gas to Ontario would be helpful. Should I do that as a Crown company or privately owned?
The Parliament said, “Privately owned; thank you very much,” so TransCanada was born. Were they the evil empire trying to profiteer from that, or are they the infrastructure developer trying to do something within the public interest?
The dynamic today remains that if a proponent comes forward, you assume they are not trustworthy and somehow they’re captive, as opposed to saying, “Let’s look at that corridor. Let’s do that government to government.” There should be infrastructure. Where would it go? Let’s do that assessment and then see who might come forward and actually execute with private money, if that’s what we chose as a country.
Mr. Locke: The answer is obviously yes, that there’s nothing in your legislation that would prevent the capture of any particular impact assessment group, however defined. We see that currently in politics in Ottawa right now. People do get captured in various ways, and there’s nothing you can put in legislation that will stop that.
The Chair: Thank you very much for that. That was a very interesting topic.
Colleagues, please, it’s already very late. Let’s come back to the discussion that was brought by Senator Plett, on which I said that I had news to tell you.
Colleagues, there is consensus that we want to hear Premier Kenney, but also the premier of P.E.I. There is consensus. We sent invitations to both of them. Interestingly, we have received an answer from Mr. Kenney saying he is coming on Thursday at 10 a.m. Okay. That can be, but now I also have information that he may be ready to come at 8 a.m., and if that is okay then from 9 a.m. to 11 we will have the three ministers and then we will go to clause-by-clause consideration with the presence of the officials; is that agreed?
Some Hon. Senators: Agreed.
The Chair: He will be coming on Thursday, May 2.
Senator Woo: This is excellent. I don’t know what magic you did but this is an excellent solution. It addresses what Senator Plett wants to achieve and what this committee asked for, and it preserves the three ministers being able to testify in the slot. I think they’re delaying by an hour; is that what you are saying?
The Chair: Yes.
Senator Woo: They are willing to accommodate. Everybody is being very cooperative.
Senator Plett: Let me suggest, then, that we will also try to be cooperative, and all I will do is make an amendment to that suggestion. If Premier Kenney has said he can be here at eight o’clock, because I believe we need to make some consideration for somebody coming from Alberta. He was just sworn in today. I believe he has a fairly robust agenda and he testified in front of the Transport Committee, but if he says he can be here at 8 a.m., and I believe that’s the normal starting time of the committee, I do not have an issue with that.
I do, however, have still have a serious issue with a bill of this magnitude where we have three ministers and we bring them in for two hours. Let me suggest that I would be willing and we would be willing to accommodate what you are suggesting, chair, if we simply say that the premier will be here for his one-hour panel and the ministers will be here for three hours, and I’m sure we would all agree that the committee could sit an extra hour. We typically allow a minister one hour.
If we have three ministers, I think they should each be allowed an hour. Quite frankly, I would like to see them on three individual panels. I don’t know whether that’s imperative, but we are cramming three ministers into a very tight time slot. I don’t think that is a burden for anybody. I’m sure it wouldn’t be a burden for the ministers, and if you were to take it upon yourself to see if the ministers would come for three hours and the officials would be here for clause-by-clause consideration, then we can put this to bed.
The Chair: Can I suggest that I will try, but I cannot control the agenda of three ministers. So I will try but if they say two, then it has to be two.
Senator Plett: Well, you are right, you can’t control their schedules and I can’t control their schedules, but it’s their bill and if they want their bill passed, then I think they will accommodate the committee and be here.
Senator Woo: Can I ask how it came to be that the three ministers were scheduled to testify on Thursday for this two-hour slot? This was presumably agreed on a long time ago. How did we come to that agreement, and why are we revisiting it?
Senator Cordy: That was going to be my comment. This committee decided on March 19 that we would invite the three ministers for two hours. I believe the hours were 8 to 10 a.m., correct?
The Chair: Yes.
Senator Cordy: On March 20, the letter was sent. I’m not sure if it was a letter, sorry.
All three ministers were notified and the request was made to them that they appear at the committee for two hours between the hours of 8 to 10 a.m. That was agreed to by the committee and it was sent on March 20 to all three ministers, a month-and-a-half ago. It said that they would be here for two hours. I understand today they have been willing to compromise and say that instead of being here from 8 until 10 they would be here from 9 until 11 a.m. At no time until today was it ever three hours for the ministers to be here. I think it’s a bit unfair, the day before, to tell them it’s going to be three hours and not two hours.
[Translation]
Senator Carignan: Yes, but that was before we started the testimony. We heard from 200 witnesses. There are many issues affecting natural resources. I think it is important to have time to discuss with the minister. There are also issues related to transport. The environment is another part of the bill. With the testimony we have heard, I think it would be important to discuss at least one hour with each of the ministers. If they can’t come together, they can each spend an hour with us, but we need time to cover all the issues. Otherwise, there may not be enough time to ask questions, especially about natural resources and transportation.
The Chair: As I said, I can guarantee two hours, because that was the commitment that was made. We can try to agree on three hours. They can also be asked to come back if we still have questions to ask later. They have already been asked to delay their appearance by one hour. I think we’ve already made enough compromises. We have to be cooperative. Ministers were scheduled to appear from 8 a.m. to 10 a.m. As Senator Cordy said, the commitment had already been made. That is the decision the committee made.
[English]
Senator Woo: I want to pick up on Senator Carignan’s point that things have changed. I totally agree with him. We have heard a lot of testimony and we understand what the issues are now. The one thing that strikes me with all of the recent testimony is that we need to start working on amendments. All of us need to do that. I know all my colleagues have some ideas for amendments and we need to set up a process where we can do that, I hope, collectively, before we get to clause-by-clause consideration.
I would like to add an amendment to this idea, which is that I can support the idea of trying to get the ministers for three hours sequentially or together in some combination. Try your best, but we should then quickly get it done on Thursday, set up a subcommittee involving a representative group of this committee to begin to share amendments and talk about how we can do some consolidation before clause-by-clause consideration so that we can meet our deadline of May 9.
The Chair: Before I give you the floor, I have been raising this issue in steering for more than a month-and-a-half. We need to work on amendments.
You have received the amendments CAPP, from CIPA, from NGOs, from municipalities. I think in total there must be 40 or 50 amendments that we have received, and I’m sure you are working on that. I know they are working on that, and at some point we have to share those amendments, to work collegially and in cooperation, not to have a chaotic end of our report to the Senate.
I can tell you that we are all sympathetic to amendments from industry, so I think that there will be commonalities. It is an opportunity to show that this committee is efficient and that it can deliver the work. After hearing 200 witnesses and travelling to all these places, me, myself, because people said we voted unanimously, but at the end, not everybody came, but I did.
I ask you to please be collegial, cooperative and work on the amendments. The idea of the subcommittee was a good idea. We are actually waiting for your opinion, Senator Plett, because Senator MacDonald said that it was your call, so I’m happy that you are with us tonight.
Senator Plett: The email was worded a little differently than that it’s Senator Plett’s call. I think he said the committee would decide, and that’s what the committee is doing.
I’m making a motion at the committee, and the committee will decide whether not to accept that motion, Senator Woo. That has always been our process.
Senator Galvez, I’m not going to speak to the idea of a subcommittee. This is the first that I’ve heard of that, other than the emails that I saw. I haven’t put my mind around a subcommittee.
Senator Cordy, I have the floor right now.
My mind is around getting the ministers and the premier here. I think we are very close to an agreement here, so let me just simply reword my motion. If you say Premier Kenney has already confirmed at eight o’clock on Thursday morning, and that we have the three ministers. Senator Cordy has said that they have changed their commitments, and they have all committed to two hours.
Well, we’ll make it very easy, because I think the better way is having one minister at a time instead of having three ministers on three different files. So let me make the motion this way: That Premier Kenney come at eight o’clock, one of ministers comes at nine o’clock, one at ten o’clock and one at eleven o’clock, and then they all are only here for an hour. We are not breaking any promise.
That will be my notion, and if that is acceptable, we can go on. I’ll let the committee decide what they want to do about a subcommittee.
Senator Carignan: And they could choose their hours.
Senator Plett: They could choose their hours. I think that’s being fairly flexible.
Senator Cordy: This is probably one of the most frustrating steering companies I have ever been on. We’ve made decisions; they are changed.
Senator Plett: That’s what I was told also.
Senator Cordy: I’m not surprised. He also told us that he had consulted with you on these things. Maybe you should be part of the committee.
Senator Plett: I am right now.
Senator Cordy: I know you are. It is frustrating when the committee has made decisions a month and half ago, and we are coming back less than 48 hours before the ministers are to appear. Ministers are busy, and you know that when we were trying to get ministers when you were in government. To get the three ministers to agree to change their time is a major change, and now we are saying not two hours but three hours.
Senator Plett: One hour each.
Senator Cordy: Three hours in total. I have the floor, Senator Plett.
Three hours in total for the ministers. That’s a complete change from what it was.
There is no point in planning ahead of time if all of these decisions are going to be changed two days before people are scheduled to appear. I find it very frustrating.
We can ask the ministers if they are willing to do that. That’s very gracious of them. If they are not, then I think we go back to their second change, not to what they agreed to on March 20, that we would have them from 9 to 11 a.m., which as I said earlier, is very generous.
Senator Woo: I think we should give the ministers the opportunity to come for an extra hour, but we need to give them the flexibility to arrange how they use the three hours. They had already agreed to come as a threesome for two hours. I think that is the default, but I’m prepared for you to make a best effort to ask them to consider adding an hour, and for those who can stay to do so, but otherwise, for them to arrange a schedule that best fits their busy agendas.
They have already accommodated us by moving their appearance by one hour. I don’t think we should put more straitjackets around their schedule.
Senator Plett: For the sake of being cooperative and collegial here, I will reword my motion.
The Chair: Thank you.
Senator Plett: That is that Premier Kenney come at eight o’clock, and that we slot nine o’clock, ten o’clock and eleven o’clock for the three ministers.
My preference and my motion will say that our preference is that they come individually, but if they choose not to do that, as long as we have slotted three hours with a minimum of one hour for each minister. If one minister says, “I’m going to come for part of that, but I’m only going to stay 20 minutes,” while the others stay two hours and forty minutes, is not acceptable.
The Chair: One hour each.
Senator Plett: I’m prepared to make that motion. I think that accommodates what Senator Woo was saying and partly accommodates what Senator Cordy was saying, and we are all happy, and we can go have a party.
Senator Carignan: You are so cooperative.
The Chair: No, we are not going to a party. This is finished.
The next subject is the subcommittee. Is it accepted? Agreed?
Some Hon. Senators: Agreed.
The Chair: Majority?
Some Hon. Senators: Agreed.
The Chair: Let’s talk about the subcommittee. The idea of a subcommittee is that instead of discussing all the amendments as a big group, we have a small group of senators who try to look into what are duplications of amendments and try to put them together and bring them forward as a package. Initially, we were hesitating between the three of us doing it, so we make it a subcommittee of six people.
I suggested that Senator MacDonald, Senator Cordy and I each invite someone so that we are six people looking at all these amendments. I even talked to Senator Neufeld because he is very knowledgeable and has been the chair of this committee for many years. He was ready to be part of this subcommittee. That was it, or do we keep it in steering?
[Translation]
Senator Carignan: Bill C-58 was studied recently. However, we did not necessarily share the amendments and everything went well.
Senator Dalphond: They were shared.
Senator Carignan: You shared them on your side, but we did not share them because things were evolving, which changed some of the amendments. It allowed us to adjust, and everything went very well. The report was tabled today and contains many amendments. The committee did a good job anyway. In any case, we are proceeding clause by clause, one section at a time. So, every amendment is covered in a logical way. Therefore, I don’t think we need a subcommittee. We can do this work in committee, but we must do it in a structured way.
I’m looking at the clerk. It will require a good dose of concentration to ensure that amendments are not forgotten. I think it went well with Bill C-58.
The Chair: If it were a small bill or a medium bill, but —
Senator Carignan: Bill C-58 isn’t a small bill. This is the government’s policy on transparency.
The Chair: Bill C-69 is over 300 pages long. There are many amendments. We have received the same amendments. You have received the amendments from the Canadian Association of Petroleum Producers and the Canadian Energy Pipeline Association. The other clerk would have to be asked to do twice as much work on about 40 amendments. So I think it’s —
Senator Carignan: Personally, I will have amendments to present that I haven’t received from anyone, and I’m able to do so.
The Chair: However, it doesn’t take away from working on this and introducing other amendments. Anyone can propose amendments at any time. Even when we go to the Senate, other amendments will be put forward. The idea is to try to find out which amendments were received and which ones obtained a consensus from the committee. Then there will be many other amendments. Senator Forest also wants to propose amendments.
Senator Carignan: Yes, I will present them.
The Chair: Perfect.
Senator Dalphond: If I understand correctly, a subcommittee would be responsible for the amendments that have been proposed by stakeholders.
The Chair: Yes.
Senator Dalphond: Everyone could then propose their amendments at the same time. The subcommittee only deals with amendments that have been proposed by stakeholders, which would not prevent others —
Senator Carignan: As I understand it, the subcommittee will not be presenting the amendments. It’s going to put them in order. It will classify and structure them, but it will not adapt them.
The Chair: No, we can’t adapt them in our committee. The amendments will be proposed here anyway. It’ll be faster.
[English]
Senator Cordy: One of the best ways for a major bill that I saw the amendments coming in was the Social Affairs Committee. I think, Carolyn and Judith, you were both part of that. I think what steering was trying to look at is making the amendments come in, in an organized fashion. I don’t care personally if anybody shares what their amendments are, but that we can have grouping into environment, industry, offshore, however we decided. I think the chair and the discussion we were having was that it would be organized; and this subcommittee or steering committee, whatever we decide to do, will in fact just organize and set up the packages or the way it would be done, and you can determine where yours would fit in.
What I found, as a non-member of Social Affairs, was when those amendments came before the Senate, it was much easier to follow because you knew you are doing all the offshore amendments on Tuesday afternoon at three o’clock or whatever time it happens to be. I just thought the procedure you used was excellent. I’m not sure how you did it. Did steering determine that? It’s Bill C-45, the cannabis bill.
Senator Stewart Olsen: Assisted dying, we did the same thing.
Senator Seidman: That was in chamber. She’s talking about the committee.
The steering committee of Social Affairs played no role at the outset. I think what happened was that, for committee purposes, each caucus organized their amendments among themselves thematically and then packaged them.
Senator Cordy: But who set up the themes? I don’t care how the caucuses do them, how you bring them in, and I don’t care whether you say you have 10 or 20 or what they are. I just think that from an organizational perspective is the only way we are looking at it.
Senator Seidman: But you know that you have to group them by clause. When you review them in committee, you have to group them by clause. So all the amendments that apply to the same clause deal with the same issue. When the committee members get their package, they are grouped. You could have five of the same amendments with slightly different wording, or even the same wording. They are grouped together because they apply to subclause 5.1(1) of the bill. And you look at them and deal with them one at a time. If they are the same, people might drop out and say, “Sorry; I don’t need to put forward my amendment because so-and-so has one and it’s better,” or whatever. It’s dealt with on the spot in the committee when you are doing clause-by-clause. It was in chamber that we grouped them thematically.
Senator Cordy: So after you had all your amendments at committee, then the steering committee packaged them?
Senator Seidman: No, the clerk.
Senator Woo: I think what Senator Seidman described in terms of sifting out the duplicate amendments is my vision of what the subcommittee would do. I’m almost certain there will be multiple amendments around the same issue, and probably around the same clause as well. We all know that different industry groups and stakeholders have provided amendments on the same clause, with quite radically different wording. Maybe we can deal with it at clause-by-clause consideration, but I know what happened with Bill C-58. When you got stuck on Bill C-58, you stopped clause-by-clause consideration and you asked for more expert hearings. You asked the Information Commissioner to come back.
We don’t want a situation where we go through clause-by-clause consideration, realize there are five amendments on the same clause, we don’t understand one or two of them, and we are stuck. I’m trying to clear some of the debris, if you will. It may be that we are all insistent on our amendments; we think we have the best one and we have to vote it out here. That may be the case.
On the other hand, I may look at your amendment on exactly the same clause and think: That wording is actually better. I will take mine off the table even before clause-by-clause consideration.
It is an efficiency measure. That’s all we are thinking about here. We have to be willing to share, though.
Senator Seidman: Why do we need a subcommittee? When we did that at the Social Affairs Committee, we put the package together a week in advance and we shared the full package.
Senator Woo: Because our deadline is May 9 and because we need to start clause-by-clause consideration on May 6.
Senator Seidman: Maybe we need to postpone clause-by-clause consideration.
Senator Woo: That’s a different question. The committee voted in a motion to deliver a report from the committee on May 9. It is not a leaders’ agreement; this is a motion from the committee. The committee motion stands, and the leaders simply took what we had agreed to.
The Chair: We have two agreements. We have the agreement in the committee and then we have the agreement by the leaders. We decided in the East to ask the leader to consider an extension, but we haven’t had an answer. So we still have work on May 9.
Senator Plett: We need to encourage Senator Woo to push for that answer, because he was the one that was pushing for not having the answer.
Senator Woo: Point of order, chair, because Senator Plett has just revealed some information at a meeting that I would have assumed to have been confidential, and he raised the point of privilege against me.
Senator Plett: No.
Senator Woo: I’m not going to insist on it.
Senator Plett: The meeting is not confidential.
The Chair: Senator McCoy.
Senator McCoy: Thank you. The process that Senator Seidman described I think is accurate and typical of what we went through. But I want to make two comments, based on our experience with Bill C-58. I was a member of the committee during clause-by-clause consideration, at our own ISG senators’ request. It was a deeply flawed bill. It did take time and attention to detail. It was an incredibly detailed bill. We worked through it, and I think, as Senator Carignan said, it was a collegial process. I think we did add value to the process.
But I will say that one of the reasons that it worked so well is that the chair took an absolutely neutral position, and that has to be maintained. So the chair was there more as a moderator —
The Chair: Exactly. Agreed.
Senator McCoy: — not as someone putting forward amendments or even voting on amendments. So that’s a key that I think that was assumed but I think should be made explicit.
Second, Senator Woo, when you say we got stuck, I don’t think we were stuck. What we were struggling with was the practicality of amendments that we had put forward. It was a suggestion as to find out what in real time, real practice would be the effect — the impact, if you like, of our proposal. So we asked for the Information Commissioner to give us her candid view, and she came back and she said, “Please don’t do it, not now. Could we do this in a year?” So we acceded to her request. It was something we all wanted to do. Almost all of us had a desire to do it, but the very practical question was: Could it be implemented effectively when the bill got Royal Assent if the amendment was accepted by the government? That’s not being stuck. That was being prudent.
I think we became legendary because the clause-by-clause consideration went over five or six meetings. I’m told that was very unusual. Mind you, I will say it was one of the most poorly written bills that I ever had the misfortune of reading. Second, it was one of the most detailed and complex acts that had to be sorted through. This bill is not dissimilar in its complexity and details.
The Chair: Thank you
Senator McCoy: I want to finish my comments, if I may, please.
I’m thinking that if you say you’ve got a deadline instead of a target, that you may in fact be limiting your effectiveness. It’s quite possible you find — when you start going through clause-by-clause consideration, you have to go from clause 1 to whatever it is, 400 pages later in this bill. If you limit yourself to getting it done in four hours, you’re going to start rushing and start finding yourself running out of time. You’re going to start finding yourself —
The Chair: Senator McCoy, we have other —
Senator McCoy: So you’re not giving yourself the opportunity to work through to find the consensus.
I think you might need to give yourselves an opportunity to succeed.
The Chair: Senator Seidman wants to comment.
Senator Seidman: If I might, because I think those are really wise words. I would like to bring us back to the motion that Senator Woo made here about that deadline for clause by clause. I think we were all very clear when we unanimously accepted that deadline that barring otherwise, there may be unforeseen circumstances that would require us to push that deadline forward. That was the condition with which — I remember Senator Woo himself agreeing, yes, there could be unforeseen circumstances and we may have to push the deadline forward.
I think we need to keep that in mind if we do want to be successful. Or are we just going to rush through and not do a good job? I think that senators need to see those amendments with some lead time before we sit down in this committee and try to go through clause-by-clause consideration. If we don’t have those amendments put together by now and we’re doing clause by clause next week, to me, this is so unrealistic on a major bill, that we don’t give ourselves a significant — five days for everybody to have seen those amendments and decide — as Senator Woo said, maybe somebody wants to withdraw an amendment because they see a better version. For us to walk in here cold with 100 amendments, we’re never going to get it done. We have a much better chance getting it done in a good period of time if we see them in advance with enough lead time.
So I would second what Senator McCoy just said. If we want to succeed and have a piece of legislation that we can live with, I don’t think that we should say, “We have to be done here on May 6 or 7.”
Senator Plett: Well, I will be brief, but I want to at least in part echo what Senator Seidman and Senator McCoy have said and even in part Senator Woo.
Dates are always set, and there’s nothing wrong with setting days. Situations arise that sometimes force us to change dates. This committee has already asked leadership for an extension of time and that request hasn’t been dealt with properly. I would suggest that this committee re-emphasize to leadership that they need an extra week.
I’m looking at this confidential document that we sent out to the world a while ago, and that document has the tanker moratorium on May 16. It has Bill C-68 on May 14. There is nothing wrong. There is no stalling being done by requesting an extra week.
It is physically impossible for the amount of amendments that you are suggesting there are, chair, for that to be done by next week. It just will not happen. So let’s try to work with a realistic date. That would give us at least, chair, the opportunity to walk out of here tonight and go among our own groups discuss whether we are supportive of the subcommittee.
I’ve never seen it in the 10 years that we’ve been here that we have this, but maybe it’s a good way of doing it. For us to make that decision here now after nine o’clock in the evening when we are not in agreement on it, I would suggest let’s leave that for Thursday and decide whether we want to do that in our own caucuses or whether we want to do that as a group here, and we go with the request for an extension in time to either May 14 or May 16 — I’m not sure what the letter says — maybe that could be amended that we go with May 16 — fine, May 14, if we think we can do it by then. Let’s make sure we think we can do it by then, and then we move on. I think that would be a better way of dealing with it.
The Chair: I just want to say that the idea of the subcommittee is to be more effective.
Senator Plett: I understand.
The Chair: Okay? And there’s no intention of moving —
Senator Plett: We understand that, but I think we would just like to discuss it and this gives us the opportunity to do that.
The Chair: The remaining senators want to check the — no? That’s it? You, okay.
Senator Patterson: Here’s the way it can work and usually works. The committee sets a deadline for amendments. Everybody submits amendments. The law clerk and the committee clerk, it’s their jobs, they work together, assemble the amendments into themes and a logical approach, and then we deal with them as a committee systematically. That’s the way it’s worked in the past, and the law clerk and our clerk are well familiar with that process.
Now, the problem that we have with that approach — by the way, I agree with you, Madam Chair, we do not want to be heading for chaos. It’s not going to look good on the Senate as a whole. I think there is consensus. I heard Senator Mitchell say that today. There is consensus that the bill can be amended or could be improved. The government says that. The minister said that. We have a common interest in getting our act together here.
The one problem is that the current deadline for amendments is tomorrow, May 1, yet we’re hearing ministers on the next day. We’re also getting a brief. There’s a briefing being arranged by the sponsor of the bill tomorrow, which is presumably going to clear up some issues or help us to focus on the need for reform.
All of this is to say that the request for a modest amount of more time is real. It’s important. It will allow us to get our act together. Some people say the committee is the master of its own process. Maybe we should decide, instead of asking leadership. Maybe we should decide, for all these reasons, on a new timetable and a new process. The subcommittee idea may be appealing, but who goes on it? How is it chosen? How does it relate to steering?
We have a tried and true process. It’s a deadline for amendments. The law clerk and the committee clerk prepare a package. We have time to consider them, which is very important. Consider them in the context of what the ministers are going to tell us, what Senator Mitchell’s briefing is going to tell us. We need a bit more time.
The Chair: Yes. I just want to say that if we do that, we would have to give permission to the law clerk to share and they can discuss — let’s say you two meet, these two meet and the other two meet —
Senator Patterson: The law clerk works for everybody. They’re a servant of the Senate.
Senator Plett: Right now they don’t have a right to share anything with anybody.
The Chair: You understand?
Senator Patterson: I understand.
[Translation]
Senator Carignan: I would like to say that I agree with what Senator Plett, Senator McCoy and Senator Seidman said. I’d like us to be careful. We will have to go clause by clause; it’s the most logical way.
The Chair: No, that is the procedure.
Senator Carignan: We have to be careful about the deadline for amendments, because the pressure will be on the law clerk to draft them. If we set a deadline for the law clerk, he’ll probably have a nervous breakdown. It is better to take the time necessary to do the job properly. If we upset the process and don’t do the work properly here, all the amendments that have not been dealt with will end up in the house. Therefore, it is better to do the work in committee than to leave 15 or 20 amendments untouched and be forced to discuss them in the house, with the time it takes. I think it’s better to do the work properly here.
[English]
Senator Dalphond: I thought Senator Seidman’s suggestion was very good. I think there’s almost a consensus. No subcommittee, but a deadline to ask for the amendments. The amendments will be shared and then people will have a few days to consider the amendments before the committee goes to clause by clause. We’ve done that for almost three quarters of Bill C-58 because we exchanged and withdrew some amendments because there was some recoupment all the time. I think that will be a nice way to go. I think Senator Seidman’s suggestion was excellent.
The Chair: Please don’t forget that any senator can at any time bring an amendment.
Senator Plett: But that, chair, if I could, just in reference to what Senator Dalphond said, there may be senators here who are happy to share their amendments, but I don’t think we can impose on any senator that they have to share their amendments. There may be those who don’t want to do that.
Senator Dalphond: It would be more efficient if everybody does in good faith to communicate the amendments.
The Chair: Now we have some issues that you can digest. For example, which amendments you want to see brought forward. Do you want to share it with others or not? The deadline was tomorrow. Remember that? That’s what we agreed as a committee.
Senator Plett: But the deadline cannot be there, chair, if we don’t have the ministers.
The Chair: I understand, but we have to start working on the amendments, okay? We will bring these again at the next meeting. Please think about and reflect on what you want. Okay. Thank you very much.
(The committee adjourned.)