Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue No. 69 - Evidence - May 9, 2019
OTTAWA, Thursday, May 9, 2019
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, met this day at 8:01 a.m. to give clause-by-clause consideration to the bill.
Senator Rosa Galvez (Chair) in the chair.
[English]
The Chair: Good morning, and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
My name is Rosa Galvez. I’m a senator from Quebec and chair of this committee. I will ask senators around the table to introduce themselves, starting with the deputy chair.
Senator MacDonald: Michael MacDonald, Nova Scotia.
[Translation]
Senator Massicotte: Paul Massicotte from Quebec.
[English]
Senator Seidman: Judith Seidman, Montreal, Quebec.
Senator LaBoucane-Benson: Senator Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Mitchell: Grant Mitchell, Alberta, Treaty 6 territory.
Senator Cordy: Jane Cordy, a senator from Nova Scotia.
Senator Neufeld: Richard Neufeld, British Columbia.
Senator Richards: Dave Richards, New Brunswick.
[Translation]
Senator Mockler: Percy Mockler from New Brunswick. Thank you.
Senator Carignan: Claude Carignan from Quebec.
[English]
Senator Patterson: Dennis Patterson. I’m also from a territory, Nunavut.
Senator Simons: Paula Simons, Treaty 6 territory, Alberta.
Senator Woo: Yuen Pau Woo, British Columbia.
Senator McCallum: Mary McCallum, Treaty 10 territory, Manitoba region.
The Chair: I want to thank our analysts from the Library of Parliament, Ms. Sam Banks and Mr. Jesse Good, for their wonderful work in this marathon we are running, along with Maxime Fortin and Shaila Anwar, who have helped us enormously.
Senator Patterson: Did they get any sleep?
The Chair: We will ask them later when we wake up ourselves.
The officials are here in case there are questions.
You have received, by now, a road map, this one here. Everyone should have a copy of this. It is titled “Road Map: Clause-by-Clause on Bill C-69.”
[Translation]
In French, the document is entitled “Feuille de route pour l’étude article par article du projet de loi C-69.”
[English]
All the amendments received by the clerk are included in that document. I propose that we follow the order in the road map, moving one amendment at a time. The clerk also highlighted the amendments that are proposed to the same line of the bill. For example, if you have the same colour, it means that we have two amendments for the same item.
The way we’re going to proceed is that every senator moving an amendment is going to read it. When there are two amendments for the same line, the two senators are each going to read their amendments and we’re going to debate and then take a decision.
Also, when moving an amendment, I would ask the senator to please identify the amendment by the label, which is in the road map, in the top right corner of the page. That will make sure everyone has the right document and they are reading the right amendment.
Senator Patterson: Point of order.
The Chair: Yes?
Senator Patterson: Madam Chair, thank you for your advice about how we should proceed. I thought it was agreed at our last meeting that we would ask our capable staff and the law clerk to compare the two packages of amendments and let us know whether there were commonalities and where there were differences. Does this road map tell us that?
Senator Galvez: Yes.
Senator Patterson: Could you explain that? I don’t understand the colour codes.
The Chair: To an extent. They cannot include an opinion about which intention is addressed by each one. I will ask Maxime to explain.
Maxime Fortin, Clerk of the Committee: If you look at the road map, they’re in the order in which they appear in the bill. You have the column with the label and we have the proposer. In the case of number one, we have ISG-1.04. So it’s an ISG amendment, it’s to clause 1 and it’s to page 4 of the bill. That’s how the label works.
In the next column, you have a little bit more detail on whether the amendment replaces something in the bill, adds something to it or deletes something.
The next column is amendment detail. If you go to numbers 10 and 11, for example, we have identified whether there’s a potential conflict with another amendment that we received. This is as far as we can go in the comparison.
Senator Simons: Can you identify the ones that are similar?
The Chair: Let her finish, please.
Ms. Fortin: We have identified only when the amendment is to the same line of the bill. That’s when we added that there is a potential conflict. It will be up to the members, when we get to that point, to read the two amendments and make a decision.
Senator Simons: Just so I’m clear, conflict don’t necessarily mean they are in opposition to each other. It could mean they are roughly similar but they overlap.
The Chair: Yes.
Ms. Fortin: Yes.
Senator Massicotte: This basically allows us to better understand this. I have so much paper. Number 1 is ISG-1.04, yet we proposed to an amendment to paragraph 1.02 regarding the competitiveness issue, which you all got a copy of. First of all, it’s missing here.
The second thing is that I was going to propose this amendment, but this amendment is a generic, overall issue. It affects many other clauses that we or the Conservatives proposed. So, I don’t get this.
Ms. Fortin: You only have the first four pages of amendments. This is what we had time to do yesterday. There are more.
Senator Massicotte: Four pages of which document?
Shaila Anwar, Deputy Principal Clerk, Senate Committees Directorate, Senate of Canada: We prepared four pages. It’s the first 67 amendments.
Senator Massicotte: Of which documents? Of the Conservatives’ documents?
Ms. Fortin: We received over 200 amendments. We had time to prepare a table with the first 67.
Senator Massicotte: Of whose amendments?
Ms. Fortin: All the amendments. Of everybody’s amendments
Senator Massicotte: Chronologically.
Ms. Fortin: Chronologically in the order they appear in the bill. The ones you don’t see at the beginning is because they are in the preamble of Part 1, so they were moved to the end of clause 1.
Senator MacDonald: So the preamble is moved to the end.
Ms. Anwar: Normally, the preamble is considered after the bill is considered. In this case, we have a bill, and within that bill there are two acts proposed.
The Chair: Three acts.
Ms. Anwar: Three acts.
So there is a preamble to the bill and a preamble to the first act. The preamble is always considered at the end of the clauses in the bill.
Senator MacDonald: The competitiveness issue is one we all had comments on regarding how to get there. We all agree we need to include competitiveness.
The Chair: We are not going to discuss an amendment now.
Senator Massicotte: This doesn’t help to say that if you do that, it also affects all the other ones. I think there are three different versions of competitiveness and economic impact. So we won’t know —
Ms. Anwar: That will be up to senators.
Senator Massicotte: If it’s not in conflict line-wise, it’s as if it’s not competing.
Ms. Anwar: It will be up to senators to discuss those issues. With the volume of amendments and the time we were given, we identified where there are similarities and where there are amendments to the same line.
The Chair: We need to start and then you will see how it unfolds.
Let’s start with the first amendment proposed by ISG-1.04. It’s proposed by Senator Woo.
Senator Woo: I move:
That Bill C-69 be amended in clause 1, on page 4, by replacing line 12 with the following:
“physical activities, but it does not include a physical activity designated by regulations made under paragraph 112(1)(a.2) (projet désigné)”.
The Chair: On debate? We’re on ISG-1.04.
Ms. Anwar: Senators, you have a big package of ISG amendments. One says “version 1” at the top. If you look at page 3, you will see ISG-1.04.
The Chair: This is the road map. These are the amendments. Here in the big binder, at the top it says ISG, CPC, McCallum or Carignan. We are now at amendment ISG-1.04.
Senator Mitchell: I’ll ask another point of clarification. I have two packages here; one is version 1 and one is version 2. Version 1 has ISG-1.04 on page 3. Version 2 does not have that anywhere that I can see.
Ms. Anwar: There is one packet with bundle one and bundle two. You need to work with all of the packages.
Senator Mitchell: Okay.
The Chair: That’s why I ask each senator to read the amendment.
Maybe you can re-read it?
Senator Woo: I would be happy to.
Senator Patterson: Why don’t you explain it? Don’t read it; explain it.
Senator Woo: Sure.
Colleagues, this is a consequential amendment to another amendment that we will be proposing later, and this is the complication of our process. We need to move this amendment now on the assumption that we will move another amendment later in sections 109 and 112. The key amendments are actually in 109 and 112. They will enable the government to exclude certain sets of lower-impact projects from impact assessment if regional and strategic assessments have been completed.
This has been something we’ve heard from industry, particularly from the Atlantic provinces with respect to exploratory drilling, and if we do make the change that we will propose later, then this amendment needs to be put into effect.
The Chair: Any comments?
Senator Mitchell: I want to further emphasize that this is a response, among other things, to industry’s concerns with offshore exploratory wells. It’s also a direct response to the Government of Newfoundland’s presentation here which was to put into legislation the reference to regional assessments as being the way of off-ramping the need to do well-by-well exploratory well assessments. It’s a direct response to input from both industry and the Government of Newfoundland, and it takes what was already going to be done in regulation and puts it, in response to their concerns, into legislation.
Senator Massicotte: That’s good, right?
Senator Mitchell: It’s a very good thing.
The Chair: You can be using this space in the column to write down these points. I remember when I was teaching first grade students.
Does anyone else want to talk about this amendment?
Senator MacDonald: Just one question.
Senator Woo, we’ve heard a lot of representations from Nova Scotia about cable ferries. Is this the type of thing that would apply to a cable ferry?
Senator Woo: I think that issue was dealt with in the project list. This is referring more to where there are broad assessments done of projects or activities that are roughly similar to each other, or activities that fall within a region and which therefore can be excluded if the regional and/or strategic assessments have been done.
Senator Simons: Just to clarify, the cable ferry operators were concerned about the navigable waters act. That’s where their issue is with being designated a major project in the third part of the bill. This wouldn’t affect cable ferries, but it would affect offshore.
Having spoken with CAPP yesterday, I think this is something that would make them happy.
Senator Patterson: Could the mover of the amendment explain the exception, the “physical activity designated by regulations made under paragraph 112(1)(a.2)”?
Senator Woo: When we get to that paragraph later, there are two sections affected, 109 and 112. This will enable those physical activities under that section to be exempted, and those physical activities refer to the physical activities that have been defined as a result of strategic or regional assessments which exclude them from an impact assessment.
Senator Massicotte: I’m a bit worried. You can see what’s happening here. We’re trying to get a better understanding, so we have a discussion about the purpose and the concept. Then we’re doing clause by clause, which technically, legally, means we approve the paragraph as so amended, and that’s it, that’s all. I’m quite concerned that you have many amendments that may include two or three clauses, and it’s dealt with separately.
If we can agree, I suggest we should continue this discussion about merits, but all of it is subject to a review by three or four people after we’re all finished to make sure it’s coherent and we didn’t forget something. Therefore, it means the purpose of the discussion — because I don’t want to come back and you say that we agreed to the wording as is, even if it makes no sense whatsoever.
The Chair: This is our job. Don’t worry.
Senator Massicotte: It’s all subject to a final review, which will be brought back to the committee, whether we think is not complete or not coherent. Do we understand that?
The Chair: We have to discuss clause by clause. That’s the procedure. We have to adopt clause by clause.
Senator Massicotte: I’m trying to give flexibility to somebody to make sure that at the very end, once we say this is the discussion we had, and it includes this paragraph and presumes and includes this one we haven’t yet approved, it’s all subject to a coherency review to make sure it’s complete and makes sense.
The Chair: Yes, we can do that, not them; we as senators.
Senator Seidman: Perhaps Senator Massicotte is referring to the fact Senator Woo referred to a clause, and then there are two or three others and they’re all interconnected. We know that when we give an amendment to the law clerk, sometimes it affects several areas of a bill. We just need to be sure when we’re approving one clause that’s connected to two or three others that they’re all part of the same amendment. We just need to know that.
Ms. Anwar: If you adopt it, that is the language that will be modified in the bill in both official languages. If you’re not sure of the language, it needs to be decided at the table in a public meeting.
Senator Massicotte: I have a big problem with that because it’s highly technical, and we should all say subject to a final review and discussion among ourselves; otherwise, we’ll be forever.
Ms. Anwar: When the committee adopts the amendments, we will prepare a report on the bill that’s presented in the chamber. Senators can then see the full report.
Senator Massicotte: I don’t disagree with that. What you’re saying is that’s all subject to a review at second or third reading. We are all saying “yea” now, but we should have a final “yea” to say we agree, it’s coherent and makes sense. Done.
Senator MacDonald: I want to get something clarified for everyone around the table.
We’re not in clause by clause yet. We haven’t moved to go to clause by clause. I want to make sure everyone realizes that.
The Chair: That’s what we decided.
Senator MacDonald: You have to formally move it. You haven’t moved to go into clause by clause yet.
When I spoke to Senator Mitchell last night, and spoke to you and Senator Woo, we were to go over these amendments that were similar, clean them up and put them aside before we move to clause by clause. I want to make sure we have that clarified around the table. We haven’t moved to go to clause by clause yet.
The Chair: It was agreed by steering that last Thursday we were going into clause by clause.
Senator Mitchell: I want to agree with Senator Massicotte and Senator MacDonald. It facilitates the process now because it reduces our tension about making a mistake and authorizing something that, whoops, I didn’t mean to authorize.
I know that committees can do what committees choose to do. We have very capable, high-level officials here who have a profound knowledge of all of this. We could work with them to monitor as we go and catch these early. I think it’s essential we do that.
I don’t think there will be that much of that. I don’t think there will be that much second thought — well, there is lots of second thought in the Senate, of course. But, “whoops, we made a mistake,” I think we can cover that carefully. And if we are treading into grounds that could be problematic, the staff, the clerks can warn us of that as we go. But I don’t think it would be legitimate to expect us to vote on things now that have ramifications later without having an easy way and an understanding.
The thing that makes me very confident about suggesting that, chair, is that there’s really good will around here to get this done in a productive way. No one is trying to game it.
Senator Massicotte: If we can agree to that, where we should be focusing at this point is to convince our colleagues as to the intentions. In other words, when you describe your clause by clause, tell us why. Let’s focus on the why so we agree where we want to get to as opposed to getting hung up on every word. Convince your colleagues by saying, “Here is what the problem is, here is what we’re trying to correct, and here is the proposed clause.” Really spend time on the objective we’re seeking rather than the technical stuff we can review subsequently.
The Chair: Is there consensus to discuss on the nature of the amendments proposed and then try to clear the way?
Hon. Senators: Yes.
The Chair: We will start clause by clause, and then we will discuss.
Senator Massicotte: You just said “clause by clause.”
The Chair: I mean following the order.
Senator Woo will need to withdraw his motion.
Senator Woo: I withdraw my motion.
The Chair: If we continue with the plan, you have in mind what Senator Woo’s intention is on the amendment that affects section 109.
The second one is Senator Carignan, CC-1.09a.
Senator Patterson: With reference to the amendment that Senator Woo proposed and withdrew, where is paragraph 112(1)(a.2)? What page is it on in the bill?
Senator Woo: It’s page 62.
The Chair: What document did you want?
Senator Patterson: I want to know where paragraph 112(1)(a.2) is in the bill. I can’t even see it.
Senator Woo: If I can explain, you can find section 112 on page 62 of the bill.
Paragraph 112(1)(a.2) does not exist because we’re going to move an amendment. This is very complicated. This amendment has to be moved now in anticipation that we will move an amendment much later in the process.
Senator MacDonald is correct in that if we approve this clause now, and we don’t approve the amendment later, we’re in trouble. I hope that helps.
I can talk about 112(1)(a.2) now if you like.
The Chair: Yes.
Senator Woo: Without actually looking at the language, since we’re not actually doing clause by clause, I will talk conceptually.
If you turn to that page, 112 is about the regulations around which the minister can designate classes of activities for impact assessment. There’s a list of a number of items: (a.1), (b), (c), (d), (e), (f) and (g). This is where we want to make sure that if there is a regional assessment — so a strategic assessment — and a class of projects has been deemed to be assessed in a certain way, they can then be exempted from individual stand-alone impact assessments.
The same kind of consequential amendment applies in section 109, which is on page 61, which is the parallel to the minister’s power, and this is where the Governor-in-Council has powers to designate various projects.
Senator Simons: It’s really technical, but it’s really important because this is the thing that allows you to make sure that every single little project doesn’t get captured. It’s something we could have broad consensus on around the table.
Senator Mitchell: I will read a passage from 109 which I think would be very important for Canadians and for senators to make the point. It’s clear in here:
The Governor in Council —
— cabinet —
— may make regulations . . . .
(c) exempting any class of proponents or class of designated projects from the application of section 76;
That directly addresses the role of these regional assessments in allowing proper assessments in a broader way — quicker, more efficient — and not project by project in the case of offshore wells. That allows that decision to be made. It’s a very strong response to input and a strong addition to this bill.
The Chair: We have discussed enough.
Sorry. Senator Cordy.
Senator Cordy: This is what we heard in Newfoundland and Nova Scotia, and we also heard witnesses in Ottawa. And the minister responded to that during questioning, saying if it was going to be exploratory well explorations in the same region, then we wouldn’t have to go through the whole process. This is because, of course, we found out that Norway is significantly shorter; Canada is up to two years. I think what Senator Woo was speaking about would be relevant and falls in line with comments made by the minister.
The Chair: Those are the points in favour of this series of amendments presented by Senator Woo.
Now we’re going to move to amendment number 2 in the sequence, presented by Senator Carignan. It is 1.09a.
[Translation]
Senator Carignan: I’ll propose an amendment to clause 3.1:
“3.1 For greater certainty, nothing in this Act affects the operation of any Act of the legislature of a province that relates to environmental protection.”
This is an interpretation provision that reflects the demands of the provinces, particularly Quebec and Alberta, which have been quite insistent with respect to these requests. The provision is in clause 3.1, because that clause is in the same place as the interpretation provision that’s somewhat along the same lines, but that concerns Indigenous peoples. It seems appropriate to include the declaratory provision for the protection of provincial jurisdiction in the same place as a similar provision for the recognition of Indigenous rights, under section 35 of the Constitution Act.
Senator Massicotte: I agree with the goal, but I’m afraid that if the federal government approves a bill when the text says: “For greater certainty, nothing in this Act affects the operation of any Act of the legislature of a province that relates to environmental protection. . .”
Senator Carignan: It’s a declaratory provision to provide greater certainty, but we agree that the provincial jurisdiction applies. The Constitution and the division of powers apply. This doesn’t change the Constitution.
Senator Massicotte: As you know, the jurisdiction is unclear in many cases. Federal and provincial legislation can be implemented by both parties until the Supreme Court makes a decision. This may impose a limit, or the federal government, while acting in good faith, may believe that the territory belongs to it or that it has control over the territory. At that point, we don’t say that the federal legislation becomes null and void because it limits the provincial legislation with respect to the Environmental Protection Act.
Senator Carignan: This doesn’t change the Constitution, like clause 3. The previous statement concerns Indigenous rights. It’s the same principle. It’s an interpretation provision.
[English]
Senator McCallum: I wanted to go into this because it affects Indigenous rights and provincial and federal jurisdictions. I wanted to read out some of the comments made by lawyers.
It says that no Indigenous right, even though constitutionally protected, is absolute in Canadian law. It gives an example of fishing rights, but these rights are not immune to regulation by other governments, which is what I think Senator Carignan is saying.
Aboriginal title, on the other hand, may give rights to an exclusive right to use and to occupy lands, but that right may be infringed upon by the government for purposes such as economic development, power generation or the protection of the environment or endangered species.
Non-Indigenous governments must justify an infringement of Aboriginal rights or title on the basis of a legitimate government purpose and recognition of the constitutional protection of the rights being affected. In most court cases, the rulings ensure that proper administrative requirements are met while permitting resource exploitation and development to continue in the overall public interest. The duty to consult remains, and it was affirmed by the Supreme Court.
That’s what you’re saying: That nothing in this act affects the operation of any act of the legislature of a province.
The Chair: Thank you.
We’re going to go to amendment number 3.
[Translation]
We’re not at the clause-by-clause stage.
[English]
Senator Cordy: I have a question for Senator McCallum. Is your concern that by adding this clause, the provincial law would override the Indigenous right of duty to consult?
Senator McCallum: I’m not concerned because that’s what’s in the law that the provinces and the federal government have.
The Chair: Next is amendment number 3, ISG-1.09, volume 2.
Senator Woo: With this amendment, what you see on the page is very cryptic. It says a short phrase which reads, “are within the legislative authority of Parliament from significant . . . .” The key word is “significant.” We’re trying to restore a standard of measurement for adverse effects that has an established jurisprudence and is currently used in existing legislation.
This is favoured by many, but not all, in both the industry and environmental groups for the very reason that there is some jurisprudence and some measure that can be referred to in using the phrase “significant adverse effects.”
The original bill took a slightly different approach. It used words to the effect of “the extent to which effects are adverse.” We heard from a number of witnesses that while this is an improvement in some senses, the new language allows for a broader interpretation and it’s not tested. The courts haven’t decided and have not given any guidance as to what it means to say that the extent to which effects are adverse can be measured. What is the extent to which the effects are adverse?
Introducing the word “significant” provides, I believe, some stability, predictability and clarity to the bill, and this is the ultimate purpose of what we’re trying to do here.
I should say that if we accept this approach, then we will have to change a number of other clauses where we essentially add the word “significant” in front of “adverse effects.”
It’s just to say that doing this amendment will mean that we have to do the same to a number of other sections. I won’t go through the whole list, but there are a range of other things that we need to do.
Moving on to the next one, 1.09b, I think Senator Massicotte will be speaking to that.
Senator Patterson: Can we go back to “significant”? Senator Woo, you’re recommending language from CEAA 2012 —
Senator Woo: Correct.
Senator Patterson: — which we have all condemned. You also said that you understood industry was in favour of this amendment because it has been litigated.
Senator Woo: “Significant adverse effects,” I understand, is a term used not just in Canada but elsewhere, particularly in the United States. There is a body of literature and jurisprudence around what constitutes significance.
Let’s not have blanket denunciations of CEAA 2012. Obviously, the framework of IAA is built on CEAA 2012 and we have to be judicious in terms of what we carry over from that bill. We could stick with the current definition, which is not to have “significant adverse effects” but to use the slightly more nebulous term “the extent to which effects are adverse,” but some people say this might create greater uncertainty because “the extent to which effects are adverse” could be in the eye of the beholder.
Senator McCallum: I wanted to comment on that. So “significant adverse,” you’re going to leave “adverse” there?
Senator Woo: No. This is really just meant to insert the word “significant” early in the bill so it can come up consistently wherever you have the words “adverse effects.”
Senator McCallum: But “adverse” will remain?
Senator Woo: You have to read the clause.
Senator McCallum: Paragraph 6(1)(b) reads:
(b) to protect the components of the environment, and the health, social and economic conditions that are within the legislative authority of Parliament from adverse effects caused by a designated project;
Senator Woo: From “significant” adverse effects.
Senator McCallum: If you add the word “significant,” people are going to be able to track “significant” in a quantitative manner, and “adverse” would bring in the qualitative aspect of the project. So it will be easier for people to say it is significant, and it should be significant because then people can say this is adverse, and that’s it.
Senator Woo: This is about regulatory stability, ultimately, because the agency has a standard it has been using, and it will allow them to continue using that standard.
Senator Massicotte: I agree with adding the word “significant.” I think there is an argument later on about “adverse effects.” As currently proposed, the board has to consider any effect. It has to be material or significant, otherwise we will be forever writing reports. I think “significant” is very important.
Senator Mitchell: Just to punctuate that, it is also true that one of the concerns about this on the part of industry and environmental groups was that jurisprudence might not transfer easily from processes now under CEAA 2012. This directly addresses that, because “significant” is a word about which jurisprudence has experience.
The Chair: Perfect. Thank you.
Senator Massicotte.
Senator Massicotte: My turn. Let me try to tell you about what I have been trying to address, because it affects three or four paragraphs.
An argument was made by many to say that the consideration of the board is very negative. In other words, there is a constant reference to negative effects. What we want the board to consider — and one could argue, and Grant has made the argument many times, that it’s already in there — all the positive effects also. They have to give more importance to economic issues and so on.
Many of us are proposing amendments to make that clear. There are some negatives, but there are all the positives and referring to the word “economic.”
I’m proposing in clause 1, page 2— and I will say it in three different places — to add the words:
“Whereas the Government of Canada is committed to enhancing Canada’s global competitiveness by building a system that enables decisions to be made in a predictable and timely manner, providing increased certainty to investors and stakeholders, driving innovation and enabling the carrying out of sound projects that create jobs for Canadians;”.
I would add, in paragraph 6(1)(b.1):
“(b.1) to establish a process for conducting impact assessments that provide increased certainty to investors and stakeholders, encourages innovation in the carrying out of designated projects and creates opportunities for economic development;”.
And on page 42, under the heading “Factors — public interest,” clause 63, on line 7 or 8, I would add, “including any changes to the environment or to health, social or economic conditions and the positive and negative consequences of those changes that are indicated in a report — and a consideration.”
Senator Patterson: Could you repeat that, please?
Senator Massicotte: Clause 63, page 42, where the bill states, “. . . must be based on the report with respect to impact assessment . . . .,” I say, “including any changes to the environment or to health, social and economic conditions and the positive and negative consequences of those changes that are indicated in the report.”
Before, it was always very negative. I think the Conservatives proposed wording, but I suggest that we all agree what the intent is. Let’s make sure they consider the positive, consider the economic. I know Grant will argue that it’s already in there, but so what? Let’s add it and make sure it’s very clear.
Senator Mitchell: I’m happy with this.
The Chair: Are there any comments on this amendment?
Senator LaBoucane-Benson: Just to be clear, this is a change to purpose that is connected to the preamble and clause 63; is that right, Senator Massicotte?
Senator Massicotte: There are three different places.
Senator LaBoucane-Benson: So there are three places that this idea will be inserted into the bill: the preamble, clause 63, and purposes.
Senator Massicotte: I suggest at this point that you accept the purpose. Later on, when we come to actual documents, if you want to approve a word, we will deal with it then. But at this point I think we all agree what the objective is.
The Chair: Number 5, Senator Woo.
Senator Woo: The same intent as number 3, where we insert the word “significant” in front of “adverse effects.” It is the same idea.
The Chair: Comments?
Amendment number 6, Senator Carignan.
[Translation]
Senator Carignan: Once again, it’s a matter of introducing the notion of respect for legislative competence by adding the words “while respecting the legislative competence of each.” This clause also relates to the purpose of the act, and this excerpt should be added to line 29:
to promote cooperation and coordinated action between federal and provincial governments . . . . with respect to impact assessments.
We should also add “while respecting the legislative competence of each” to emphasize the cooperation and coordinated action between the government partners while ensuring that one government doesn’t interfere with the other government’s jurisdiction.
[English]
The Chair: I think it’s a clarification and collaboration. I agree with that. Perfect, thank you.
Amendment 7, Senator Carignan.
[Translation]
Senator Carignan: The municipalities have made these requests. We’ve seen that municipalities don’t fall within the definition of “jurisdiction” because they don’t necessarily have an impact assessment process. As a result, provincial jurisdictions or agencies created by the provinces must have the capacity to conduct an environmental assessment to be considered jurisdictions within the meaning of the act. However, the vast majority of municipalities don’t necessarily have the required skills to conduct this type of assessment. Therefore, they’re not included in the definition of “jurisdiction.” I also don’t want to include them in this definition, because they don’t necessarily have the capacity to conduct environmental assessments. However, municipalities are front-line stakeholders, especially in the event of a safety situation, such as a fire. The municipalities must be there. The bill doesn’t include any obligation to consult with municipalities during the implementation phase or preliminary phases, and throughout the consultation process. The amendment proposes to modify a number of clauses and provisions to incorporate the notion of consultations with municipalities during the decision-making process. This is only a request for a consultation to ensure that municipalities can express their point of view and include tools, equipment, staff, and so on in their emergency preparedness plans or risk coverage schemes. That’s the purpose of this amendment. This request was made by the municipal associations of Quebec, Alberta and New Brunswick.
[English]
Senator Woo: I understand the intent of this amendment. I’m not sure it’s necessary. Early planning, by definition, would include all the affected communities and interests, and the tailored impact statement will also cover off issues that municipalities would be interested.
I’m actually worried that this will increase uncertainty by raising litigation risk. I can imagine a pipeline going through thousands of kilometres, affecting municipalities up and down and above and below the pipeline, and having a situation where the possibility of municipalities taking legal action because they felt that this gives them the power to block, if you will, a project. They already have the ability, I believe, to participate in impact assessment.
To the extent that we are trying to improve predictability and reduce litigation risk, I’m not sure this does it.
[Translation]
Senator Massicotte: Senator Carignan, what about the argument regarding the division of jurisdiction? This concerns all the affected organizations. The argument has already been made, but why is that not the case?
Senator Carignan: I think that the issue concerns partners and clarifications with respect to municipalities, since the municipalities can be affected. Municipal organizations must be clearly identified as stakeholders in this assessment. The issue is the right to consultation. If these things are already included, this will provide greater certainty. This won’t increase the risk of legal action. Obviously, this isn’t veto power. Municipalities can’t use their veto power over projects. The goal is to ensure a more proactive consultation. Municipalities are “front-line stakeholders.” When a disaster occurs, they must establish a risk coverage scheme for emergency preparedness and fire safety. They must have a formal consultation status in order to express their point of view and clearly identify the things that will affect them.
Senator Massicotte: The argument certainly has a great deal of merit. In the last paragraph of the amendment that you’re proposing:
. . . to engage in consultations with municipalities that may be affected by the carrying out of a designated project...
Can we introduce a concept to emphasize the importance of consulting with municipalities, which will be greatly affected, before waiting until the federal government is required to have discussions with them?
Senator Carignan: I don’t know how far we should go in terms of consulting the citizens who will be directly affected as opposed to the citizens who will be indirectly affected. What will the consultation process involve? Whether the project is a mine or a pipeline, various environmental aspects can affect the municipality and the municipality must take these aspects into account in its plans. Usually, a municipality must apply for a permit for all projects. For example, if a plant plans to open in a municipality, the municipality must apply for a building permit. It may then assess the risks associated with the establishment of a biochemistry or chlorine laboratory, for example. Municipalities must conduct these risk assessments and identify the necessary tools and equipment and specify them in their plans. If a municipality doesn’t grant a permit for the construction of a pipeline or the operation of a mine, it won’t have the necessary information to conduct a risk assessment. The municipalities must be directly involved in the consultation process to obtain all the relevant information.
[English]
The Chair: Before I give the floor to Senator Neufeld, I want to ask the officials if they have something to say on this amendment.
Brent Parker, Director General, Strategic Policy, Canadian Environmental Assessment Agency: I will refer senator to the two clauses, 11 and 12, on page 14 of the current bill which have different purposes.
Clause 11 refers to public participation. Some senators have noted that it provides for consultation with any member of the public, which would include municipalities and other stakeholders, or they can be organizations.
Clause 12 is structured to provide an obligation on the agency so there is consultation that takes place with other jurisdictions that have responsibilities related to environmental impact assessment, with the purpose of coordination being the end goal. There is also a reference to Indigenous groups, and that flows from the duty to consult.
[Translation]
Senator Carignan: Mr. Parker has confirmed exactly what I just said about the addition of municipalities. A municipality isn’t the public as a whole. A municipality doesn’t have the same right to consultation as citizens. Clause 12 concerns the powers, duties and functions of the jurisdiction in relation to the environmental assessment of a project, which aren’t applicable to municipalities. They aren’t impact assessment agencies. Municipalities must be included. Thank you for the clarification.
[English]
Senator Neufeld: If, for instance, a pipeline goes through a municipality, the municipality will obviously be part of the discussion. But what does “municipality” mean? Does it mean a city, a town, a regional district or a county? There are more than just municipalities; there are regions.
I don’t know how far afield you’re going, but in the province I come from, if you are going to build a pipeline through a community, you have to talk to that community. Burnaby is a good example of what we’re doing. What does “municipality” mean? Does it mean all governments?
[Translation]
Senator Carignan: In Quebec, the definition of a municipality includes cities, towns, villages, associations, parishes, and so on. We’re talking about any local organization that manages the powers, duties and functions of a municipality. Obviously James Bay, the largest municipality in the world, has a massive territory. To give you an idea, it takes a week to collect garbage in the James Bay parks. All provinces maintain a local territorial organization authority. I’m focusing on these territorial organization bodies.
The Chair: Thank you.
[English]
Senator Wetston: I don’t mean to disrupt the discussions, but I wanted to point out that when we were reviewing the bill, we certainly considered the issue of municipalities a great deal in the discussions. Senator Carignan makes an important point, as does Senator Neufeld. Officials pointed out the provisions that they believe includes the opportunity. There is no question the municipalities need to be engaged. There’s no doubt about it. Indeed, a permitting process, as an authority, could even preclude the opportunity for a pipeline to be built under certain circumstances. That’s my view.
However, the reason we didn’t feel we needed to include it in the way that Senator Carignan has suggested is because we believe it was included under the definition of jurisdiction. If you look at jurisdiction, we all know that every municipality is a creature of the legislature, and that is established under (d) here:
(d) the agency or body that is established under an Act of the legislature of a province and that has powers, duties or functions . . . .
We felt that municipalities were clearly included under that and didn’t require an additional amendment. Certainly, in the early planning process, a municipality would require engagement.
That was our thought on that, Madam Chair.
The Chair: Thank you.
[Translation]
Senator Carignan: According to the municipalities, these agencies or bodies aren’t included in the notion of jurisdiction. Paragraph (d) refers to agencies or bodies that are established under an act of the legislature of a province and that have powers, duties or functions in relation to an assessment of the environmental effects of a designated project. Let’s say we’re talking about provincial assessment agencies that conduct impact assessments, which a municipality doesn’t undertake. There’s no other place where we could claim to come close to the definition of municipality. That’s why we must make this clear in each situation.
[English]
Senator LaBoucane-Benson: I was going to talk about the definition of jurisdiction because I think that’s important. I do think we could beef up that definition of jurisdiction to talk specifically about municipalities in the definition. Then, when it refers to “any jurisdiction,” it’s defined clearly in that definition not just in the sections you’ve mentioned. At any time when this bill talks about “any jurisdiction,” municipalities would be purposefully included.
[Translation]
Senator Carignan: I looked at the definition and gave it a great deal of thought. However, this can’t be done, since municipalities don’t have the capacity to conduct impact assessments. Wherever it refers to “jurisdiction,” the bill intends to make a substitution with another jurisdiction or with an authority. We couldn’t do this with the municipalities because they don’t have the capacity to conduct impact assessments.
[English]
Senator LaBoucane-Benson: One of the things I fear is happening when you put it in the area of public participation, it kind of downplays municipalities. It becomes part of the public as opposed to a jurisdiction with authorities.
It’s just a thought, that’s all.
Senator McCallum: Senator Wetston, if municipalities are already included under jurisdiction, what is the problem with bringing it out elsewhere?
The reason I’m looking at this is because when we met with some of the municipalities, they are included in consultation, but they have a greater responsibility, which sometimes requires finances. There are financial impacts on them and they’re not reimbursed for that. That’s one of the points that they brought out during one of our consultations.
[Translation]
Senator Mockler: When I met with representatives of the Association francophone des municipalités du Nouveau-Brunswick and the francophone association outside Quebec of municipalities in Canada, they told me that they wanted it to be local service districts. The fact that we’re talking about cities, towns or villages means that, if we don’t include the term “municipality” in the act and in the definition, two things can happen. They become, as Senator Wetston said, creatures of provincial statute, but they have no specific responsibility when a problem arises. We must give the responsibility to the municipalities. By including municipalities in the definition, we ensure that they’ll have specific responsibilities and that they’ll be part of the consultation process.
[English]
Senator Cordy: I guess I’m looking at it and thinking that jurisdiction covers it if you look on page 14, lines 23, 24 and 25:
12 For the purpose of preparing for a possible impact assessment of a designated project, the Agency must offer to consult with any jurisdiction ...
The same thing holds true on page 15, ligne 14:
... that are raised by the public or by any jurisdiction or any Indigenous group ...
I actually think that “jurisdiction” covers municipalities, in my opinion.
Senator Carignan: Yes, but that’s not the case.
Senator Cordy: Maybe if we looked at the definition of what jurisdiction actually covers, that would be fine.
I also get a little bit nervous. I think we want to hear from everyone who is affected, whether positively or negatively, but I’m getting concerned as we add more and more. I think the purpose of this bill is to balance environment and industry, but what I heard over and over again was with regard to periods of time for consultation. We want this to be efficient and effective, but we want all voices heard.
I think “jurisdiction” covers it, but I am open.
[Translation]
Senator Carignan: I’ve spoken with people in the municipal sector. I’ve also practised municipal law, and I can tell you that the definition as it stands right now doesn’t include municipalities. If we want to include them in the definition of “jurisdiction,” I have no problem with that. At that point, we must amend paragraph (d) and add the words “including municipalities” to cover all possibilities.
However, paragraph (d) clearly doesn’t include municipalities at this time.
[English]
Senator MacDonald: Senator Wetston, with regard to the definition of municipality and what you mentioned in terms of jurisdiction, is there any downside to accepting your premise that “jurisdiction” covers municipalities? Municipalities are political units designated and designed under provincial law. If we were to take Senator Carignan’s suggestion, does it complicate anything or just strengthen it? Doesn’t it just confirm what you say is inherent in “jurisdiction”?
Senator Wetston: I’m just looking at this and asking myself the following questions. Senator Carignan practises municipal law. Presumably he understands this area more. When I looked at the provisions, Senator Cordy raised the very same issue and I thought it would cover municipalities because they are clearly creatures of provincial statute.
How that flows into Senator Neufeld’s question is an important consideration. You have to look at that and define what it means. You put in “municipality” and then you have to define what it means. That leads to another consideration. I’m not saying you can’t do that, but the more provisions you add, the more interpretation it includes. Maybe this is important and it may be important to include it.
From my own perspective, you can include it; obviously, the government may have a different perspective on what it may do to the entire bill if it’s approved by the Senate and goes back to the government with this kind of an amendment. But from my own perspective, I think it’s included, and I would not add any additional language or other components to the bill unless absolutely necessary.
I don’t disagree with the notion here whatsoever. Municipalities clearly need to be included, 100 per cent, but the question is this: Are they? From my own perspective, if you add “municipality,” I don’t think it’s a bad amendment whatsoever. I wouldn’t consider it to be so. Officials may have a different point of view, Senator MacDonald, but I don’t think it would be negative in that regard.
The Chair: Colleagues, what we are doing right now is actually clause by clause. I’m just afraid that we are going to double the work because we’ll have to come back and do all of these again. It will probably be faster, but are we 16-year-olds who can remember all we have discussed, or should we start approving and adopting?
I want to hear some opinions on that because I’m conscious of the time.
Senator Massicotte: I propose that in the next day or so what should come out of the discussion we’re having is a black line copy showing what the bill says and what a proposed amendment would do to it, and that we delay approval. Let’s add the municipalities as proposed, but subject to the fact that when we get the final, we can see the impact and whether we agree or disagree on it completely. Otherwise, to just deal with the motions, you’re losing scope.
The Chair: On that point, I wanted to make clear that the law clerk cannot do this for us.
Senator Massicotte: Then let’s find somebody who can.
The Chair: Your office, our office, somebody. If we had had the subcommittee, we would have done that. So we cannot go back to that. We cannot ask them to do that.
Senator Neufeld: I think this is a good process, and we’ve only got to number 7. I think we’re making good headway, and it probably will go more quickly as we get used to it. I think it’s a fair way to go. To say we should have done it with a subcommittee means that we would take three people out of this group. They would make all the decisions and then come back to us, and everybody would agree with that and it would just be fine? No, not on your life. That wouldn’t happen, because everyone has a point of view on every point.
The Chair: No. It was not three people; it was six or eight.
Senator Neufeld: I would say that what we do is carry on. Our staff are here. Officials are here. The place is full.
The Chair: Okay.
Senator Simons: I was going to be contrary-minded and suggest that — I mean, this is going very well. I don’t want to disrupt this because I think this is fantastic collegial work.
Would anyone be interested in entertaining the idea that at 9:30, or whenever we get to a certain point, we say that we’ve had a really good discussion about these first 10 amendments? We could take a break, huddle, come back and then vote on them while we’re still remembering —
Some Hon. Senators: No.
Senator Mitchell: I endorse what Senator Neufeld said. I think we will find that when we go through this we might even be able to package them because we’ll remember the ones we remember very clearly. Then we may find some like this, which is more complicated, that we want to go back to, but those will be relatively few and we can distinguish those. I think there is good will and we can make this work.
To Senator Massicotte’s point about a further black line analysis or comparison, are you asking if the officials could do that? I’m not sure that’s clear, but it would be a good idea.
Senator Massicotte: It would increase everyone’s understanding. I like the discussion as it’s going, but before we finally approve, someone should tell us what the law would like as a result of our discussions. We need to know what those amendments are compared to law, the black line copy.
It’s good to have this discussion. I think we tentatively agree, yes, but before we say yes for sure, we should have that black line copy. We should know what we’re approving.
The Chair: Our staff will have to agree.
The other thing we have to keep in mind is we have 240 amendments to go —
Senator Massicotte: — 50 by the time we avoid all the duplication.
Senator Neufeld: And we’re wasting time.
The Chair: Continuing, number 8 is CPC-1.10.
[Translation]
Senator Mockler: Before moving on to number 8 of the roadmap, what do we do with the word “municipality”?
The Chair: There are two possibilities. Senator Carignan can continue to propose his amendment, or maybe someone will come and say that the definition will be amended to include “the definition of jurisdiction such as ‘municipality.’” That’s what I understood from the discussion. Perhaps Senator Carignan could modify his amendment and then refer to the definition.
Senator Carignan: I’ll consult with the municipal law experts.
[English]
Senator Patterson: This is a reference to CPC-1.10. This amendment seeks to introduce a new clause in the “Purposes” section of the bill on page 10. It would add a new clause (o).
The reason for this is that many of Canada’s largest energy companies, including CAPP — the Canadian Association of Petroleum Producers — the Canadian Energy Pipeline Association and the Canadian Electricity Association all talked about the need to improve investor confidence, strengthen the Canadian economy, encourage prosperity and improve the competitiveness of the Canadian energy and resource sectors.
I know the ISG has prepared a package with a similar amendment. I think they’re very close, but this amendment seeks to specifically refer to the key issue of improving competitiveness of our resource sector. Conservatives are committed to that goal and would not like to see that omitted.
I believe that the government has already talked about this. Minister McKenna in the other place talked about Bill C-69 making our resource sector more competitive.
I don’t want to go over it all, but we have heard a lot of evidence about every major oil and gas firm and pipeline firm seeing Bill C-69 is a major risk to their businesses and the bill in its current form might drive investment out of Canada. We’ve all heard evidence about money fleeing to the United States where investor confidence is high and there seems to be a more receptive and quick environmental regulatory process.
It’s important to say in writing what the government has said all along that one of the purposes should be to make our energy and resource sectors more competitive, which will in turn create wealth and opportunities for all of Canada.
Hopefully that’s not controversial.
Senator Massicotte: That’s good. I think the proposed improvement is so good that it nearly duplicates what I said earlier. In fact, my previous wording is:
“Whereas the Government of Canada is committed to enhancing Canada’s global competitiveness by building a system that enables decisions to be made in a predictable and timely manner, providing increased certainty to investors and stakeholders, driving innovation and enabling the carrying out of sound projects that create jobs for Canadians;”.
I think it has all the words you wanted. I think when you get the final copy you can add more words, but what I already proposed I think it satisfies what you wanted. Actually, in the purpose paragraph, I’m made the factors also to repeat what you just said. I think it’s in there, but subject to seeing a final copy, I think you’ll be okay.
Senator Woo: I have a different view. I support improving competitiveness. I support the energy and resource sectors, but those words do not belong in an impact assessment bill.
The best way to improve the competitiveness of the Canadian energy and resource sector is to have a good bill that provides certainty, predictability and relatively low litigation risk. That’s what we should be focusing on. If we put this in there, it will tilt the bill in a direction that is not consistent with a process that allows good projects to go ahead.
I have two specific problems with this amendment. Improving competitiveness is essentially about lowering costs. If that is one of the purposes of an impact assessment bill, it’s going to push us in a direction that is going to disregard, I think, some of the impacts that a project might have.
We want good projects, don’t get me wrong, but if our focus is competitiveness per se, then that is a factor or a condition that I think is out of the scope of impact assessment per se. Yes, we need to improve competitiveness. That has to do with taxes, the labour force and the regulatory environment in general, but I don’t believe it belongs in an impact assessment bill.
Second, to focus on the energy and resource sector, to single it out specifically in an impact assessment bill, is this what the Senate of Canada wants to do to single out an industry for, in a sense, favourable treatment?
This impact assessment covers more than the energy and resource sector. There are transportation projects, presumably, as well as oceanic or offshore projects that may not be energy-related. I just feel that this is overreaching and creates an imbalance in the bill that would cause more difficulty for us.
Again, I want to say this: If we want to focus on improving competitiveness for the energy and resource sector, we do it by improving the bill, not by skewing the purpose.
Senator McCallum: When you mention the phrase “through the use of follow-up programs,” what are the follow-up programs?
Sorry, we’re on —
Senator Patterson: No, that’s correct, senator. But I’m not proposing to replace line 33.
Senator Simons: It’s just there for continuity.
Senator McCallum: He’s adding that. I’m just asking what that means. You’re not?
The Chair: It’s (o).
Senator McCallum: When you look at increasing investor confidence, is this about balance? What is it about?
Senator Patterson: Yes, it’s about balance. It’s about all the things we care about regarding impacts, but it’s also about encouraging good projects to be considered in Canada. To do that we need investor confidence and we have to be attractive. That’s where competitiveness comes in.
We’ve heard evidence — and by the way, it’s not just from the petroleum sector; it’s from other energy sectors — that the bill is injecting many public policy issues throughout the bill. I point that out to Senator Woo. This bill is certainly not just about a regulatory process; it adds many public policy considerations.
If competitiveness is a relevant public policy consideration, along with fully consulting Indigenous people, considering the impact of gender analysis, considering the impact of climate change and Canada’s international obligations — these are all public policy issues. I don’t think it’s appropriate to pick and choose — to question a policy issue in a regulatory bill.
The bill almost 400 pages long because it’s way more than a regulatory bill; it’s a bill about public policy, and competitiveness is public policy.
Senator Mitchell: There are elements of this amendment that I think cut in a very good way both ways. Certainly competitiveness, investor confidence, prosperity, et cetera, are seen to be business-related and economic, but the fact of the matter is that you have none of those if you don’t do the environment well. So I think both sides can be happy with those elements.
But I will say, however, that those elements are captured in the preamble amendment proposed by ISG in 6(1), subsequent to that, and in amendments in 6(1) and to 63 proposed by ISG as well.
The concern I have with singling out a single industry, which is Senator Woo’s and others’ concern, which is that you really skew it, and you could begin to list all the industries and all the potential competitive enterprises that should be listed here. I just think it’s not necessary, and it has some downside in throwing off the alignment of interests that are captured in this bill or the efforts that have been made to be captured in this bill.
Senator Simons: I’m always willing to be in a compromising position, so I wonder if there would be a way to find a middle road if we dropped the last thing, which was to improve investor confidence, strengthen the Canadian economy and encourage prosperity. I think the challenge is in singling out one sector — and I’m from Alberta; I understand that this is an extremely important sector. But if we leave “to improve investor confidence, strengthen the Canadian economy, encourage prosperity” —
Senator Patterson: But you leave out competitiveness. That’s the key issue.
Senator Simons: We can put it in competitiveness, but you don’t want to start enumerating industries. We also want to make sure this is a bill that might protect the economy if we’re talking about an inshore fishery.
I don’t think it is irrelevant to ask that economic considerations be a factor, but I don’t think we want to privilege one industry over others. We all know there are going to be times when two very important industries are in conflict, and the assessment will have to weigh the economic impacts on both.
Senator LaBoucane-Benson: I was going to say that we should just drop the end and just put “industry competitiveness.”
But I want to ask Senator Wetston a question. We’re introducing some language here, and I’m wondering about litigation or increasing our risk of litigation. I wonder what you think about definitions of competitiveness.
Senator Wetston: What it means depends upon the context; the interpretation very much depends upon the context. I don’t particularly see it as an element that gives rise to any particular litigation risk other than that might exist otherwise. It’s already included in the preamble. The preamble isn’t part of the bill — we know that — but nevertheless, it provides some guidance, and the notion of sound projects and job creation.
Whether it is necessary, I leave it to the committee to decide, but I don’t think it does.
Senator LaBoucane-Benson: I would recommend just taking off the last part and saying “and improve industry competitiveness,” period.
Senator Patterson: Does that satisfy you, Senator Woo?
Senator Woo: I like the word “competitiveness.”
Senator Patterson: So we’re on common ground here.
Senator Woo: Yes. I liked the way in which Senator Massicotte introduced the word “competitiveness,” which is that “the Government Canada is committed to enhancing the country’s global competitiveness by building a system that enables decisions to be made in a predictable and timely manner, thereby providing certainty to investors and stakeholders,” et cetera.
The difference is this: If you’re focused on competitiveness in and of itself, then there are many ways in which you can improve competitiveness that are outside of the scope of impact assessment. As I said, you can reduce taxes, have lower wages or scrap environmental laws. There are lots of things that can be done. It can be a race to the bottom.
But if we want to define “competitiveness” within the scope of an impact assessment bill, then the wording offered by Senator Massicotte does it, because in this sense, competitiveness is about predictability, certainty, and making investors confident that the system and process they’re going to embark upon is going to be fair and will lead to outcomes about which they can have reasonable assurance of carrying through on.
That is why if we simply say that the purpose of the bill is to improve competitiveness of an industry or even the competitiveness of the Canadian economy in general, that runs somewhat counter to what an impact assessment bill is trying to do. We have to constrain the competitiveness within the purpose of the impact assessment bill. The purpose of the bill with respect to competitiveness is certainty and predictability.
I’m not against the word. I just feel that it’s a very blunt way of putting it in here that can actually tilt the bill in a direction that is not consistent with what an impact assessment is trying to do.
Senator Massicotte: Under “Purposes,” I also propose a paragraph 6(1):
“(b.1) to establish a process for conducting impact assessments that provides increased certainty to investors and stakeholders, encourages innovation in the carrying out of designated projects and creates opportunities for economic development;”.
I think, Senator Patterson, your issues have been covered. It’s under “Purposes,” and I would add paragraph 6(1)(b.1). What I suggest you do is —
The Chair: You have to refer to our thing.
Senator Massicotte: Okay, page 19. I think you will see the objective has been satisfied in the proper places. But I suggest we wait until we have the revised copy, and if you think it’s not satisfactory, raise it at that point in time and we’ll deal with it. Because I think we agree with the objective.
Senator Patterson: I think we are getting somewhere, Madam Chair. I understand that there’s concern about specifically mentioning the energy and resource sectors. I think there is some openness, though, to including the word “competitiveness.”
The Chair: It’s there.
Senator Massicotte: I say:
“Whereas the Government of Canada is committed to enhancing Canada’s global competitiveness by building a system that enables decisions to be made in a predictable and timely manner ... ;”.
Senator Patterson: That’s the preamble.
Senator Massicotte: It tells you the objectives of the act. That’s where it belongs.
The Chair: Senator Neufeld, last comment on this amendment?
Senator Neufeld: I’m fine. I think we have worked that out.
The Chair: It has been solved? Perfect.
Do you have another one?
Senator Patterson: If I may, this is CPC-1.11.
The Chair: Amendment 9.
Senator Patterson: On page 11.
This is an important one, and maybe I won’t talk about who all recommended this amendment, although it did include CAPP and the mining association.
It is intended to address something that I believe everyone could agree with. In clause 7, on page 11, it admonishes a proponent. It prevents a proponent from doing anything with respect to a designated project, in whole or in part.
My amendment is proposing to replace line 30, but I want to give you a bit of background.
It would add a new third part to subclause (c). Proponents under clause 7 are not supposed to do anything in connection with carrying out a project that may cause any of the following effects, and right now it reads:
(ii) the current use of lands and resources for traditional purposes, . . .
The problem is that in the pre-planning of projects, resource companies often discuss issues with Indigenous people, in particular — and this is my experience — about things like capacity building. Communities say, “We’re not ready to participate in this process. We don’t have the capacity.” Or they say, “You have to do something for our community. We don’t have a health centre. We don’t have a fire truck.” So the problem with this clause, without amendment, is that it seems to prevent proponents from engaging in discussions or doing anything that could impact communities in a positive way.
The purpose of the amendment is that it would eliminate this confusion and would capture the reasonable need to prevent activities of an industrial nature from occurring at an early stage. That’s what the bill is intended to do, but it would allow obviously harmless activities, like negotiating an impact benefit agreement, to go forward. These impact benefit agreements are very common. Smart proponents start talking very early about what goes into an impact benefit agreement. I’m proposing to add, here, “their health, social or economic conditions” to allow for impact benefit agreement discussions to take place early.
Otherwise, if you prohibit proponents from engaging in early discussions or engaging in discussions about positive impacts, we could all agree these are positive things that are happening that the bill should clearly allow. That is what the amendment intends to do.
The Chair: Thank you very much.
Senator Woo: I will defer to Senator LaBoucane-Benson.
Senator LaBoucane-Benson: Colleagues, we have actually three amendments trying to do the exact same thing.
If you look at the one Senator Patterson just referred to, then you look at the one that says ISG-1.12 and MJM-1.12, we are all in the same agreement. At least the ISG and CPC is saying that we don’t want to prevent the proponent from doing good work in conjunction with the First Nations governing body. As long as they are good with it, we want the work to happen.
I believe our clause says that and that your changes are getting to the same thing.
I will ask Senator McCallum to talk about her amendment.
Senator McCallum: Not right now. I wanted to deal with the next one.
Senator Massicotte: So, senator, which one is the better wording? Which one is more comprehensive to make sure that it captures what we are trying to get at?
The Chair: Maybe a combination of the three.
Senator Massicotte: What wording exactly?
Senator LaBoucane-Benson: Potentially, I think the one labelled ISG gets to the heart of the fact that Indigenous governing bodies have section 35 protection. Nothing in this bill can contravene section 35 of our Constitution. So whether we say it or don’t say it, the courts have already affirmed it.
I think the ISG one — and I won’t speak for Senator McCallum — tries to get to the heart of that. Yes, the proponent should get into relationships with First Nations governing bodies. Yes, they should be doing good things. And I think we get to that.
Senator McCallum: I have an amendment to page 12.
That Bill C-69 be amended in clause 1, on page 12, by adding the following after line 27:
“(4) Notwithstanding paragraph 7(3)(a) —
And subclause 7(3) currently states:
(3) The proponent of a designated project may do an act or thing in connection with the carrying out of the designated project, in whole or in part, that may cause any of the effects described in subsection (1) if ...
(a) the Agency makes a decision under subsection 16(1) that no impact assessment of the designated project is required and posts that decision on the Internet site;
So my amendment is:
“(4) Notwithstanding paragraph 7(3)(a), a decision under subsection 16(1) that an impact assessment is not required does not affect any duty of a proponent to consult, as required by law, with Indigenous peoples likely to be affected by the project and does not abrogate or derogate from the rights recognized and affirmed by section 35 of the Constitution Act, 1982.”.
When deciding if an impact assessment is required, subclause 16(2) of the proposed IAA requires that an agency take into account impacts of the proposed project on Indigenous rights, as well as comments received from Indigenous groups in the early engagement process under clause 12. However, the wording of paragraph 7(3)(a) suggests that a decision by the agency that no impact assessment is required permits proponents to cause negative impacts on Indigenous peoples.
To ensure the legislative framework for impact assessment, this is about respecting the duty to consult. This amendment would have paragraph 7(3)(a) amended so the provision is not misinterpreted to have an effect on the duty to consult or any other right of Indigenous peoples in Canada related to effects described in paragraphs 7(1)(c) and (d).
What has happened is that even though the duty to consult was there, a lot of the proponents did not honour that, and just I wanted to put that in there so that they do.
Senator Woo: Senator Patterson, I wonder if your proposed amendment is in the wrong place. I may have misheard you and I may be misreading page 11, subclause (1). You proposed to insert “their health, social or economic conditions” under “Prohibitions,” which means that these are precisely the areas that are prohibited. This is the opposite effect from what you are proposing.
I totally agree with your purpose, but I think the place to put it is where Senator LaBoucane-Benson is proposing. She does it in a way that talks about the approval of Indigenous authorities and the consent of the authorities.
Maybe you can clarify, but I think this is the wrong place and the wrong intent. It has the wrong effect of what you’re trying to do.
The Chair: I agree with Senator Woo.
Senator Patterson: Do we agree, Senator Woo, that 7(1)(d) lines 34 to 36 at the bottom of page 11, stops proponents from discussing changes occurring to the health, social or economic conditions of the Indigenous peoples of Canada? There is a problem.
Senator Woo: It certainly stops adverse negative effects. The way to fix it is, I think, the fix that Senator LaBoucane-Benson is offering and not the one that you suggest. I think it’s an oversight, but your fix would actually have the opposite effect.
The Chair: Page 11 says “Prohibitions.”
Senator Woo: We don’t want to prohibit positive social, health or economic benefits to Indigenous groups.
The Chair: Can I ask the officials if we have this right, that this is not the right place? Because what Senator Patterson is proposing is positive — positive effects.
Christine Loth-Bown, Vice President, External Relations and Strategic Policy, Canadian Environmental Assessment Agency: I want to flag as well that officials here cannot give opinions. We can only lay out the facts or intent of the proposed legislation.
With respect to what Senator LaBoucane-Benson is proposing, she is suggesting that despite the earlier prohibition, that it does not take away from any of the positive activities a proponent would be able to do for Indigenous peoples.
Senator LaBoucane-Benson: What about Senator Patterson’s?
Ms. Loth-Bown: Senator Patterson’s is within the prohibition part, so it is less clear on the intent.
Senator Patterson: The good news is we all agree that these positive things should be allowed to happen.
The Chair: Senator Patterson, you were going to revise this and have in mind whether you want to put it elsewhere or you withdraw it when we go to clause by clause.
Senator Patterson: I think it’s like the previous discussion about competitiveness, where we’re agreeing on what needs to be fixed. It’s a question of how that’s done. I’d like to reflect on that a bit, but I think the good news is we do agree that improvement could be made.
The Chair: That’s fantastic news.
Senator Mitchell: I’m glad that has been resolved.
With respect to Senator McCallum’s point, I think it’s very powerful and important because her amendment emphasizes and acknowledges the importance of consulting with Indigenous peoples.
I would say, Senator McCallum, that that point is covered very explicitly and specifically in the ISG-1.12, because it says that nothing can be done that would change something that would be adverse at this stage in the process without agreement from the Indigenous group, community or people with the proponent. So in order to get agreement from Indigenous peoples in ISG-1.12 versus MJM-1.12 — so it’s ISG-1.12, which is Senator LaBoucane-Benson’s amendment. I’m addressing her amendment, which would become subsection 7(4). I’m on the same topic, but there are two issues. The first issue has been handled by clear agreement.
The second issue, while it’s absolutely important to emphasize consultation, which is done in your amendment, the fact is that ISG-1.12 accommodates that explicitly and with great strength. Because the proponent can’t do anything under that section without an agreement with Indigenous peoples or communities or other entities that are affected. So I think it covers it off.
Senator McCallum: I disagree with that because it was always there that we have that right, and it hasn’t been done. That’s why we have so much trouble across Canada. I disagree with that, and I feel this needs to stand on its own. If it’s there, we’re just laying it out bluntly.
By the way, none of these amendments are specifically mine. They come from different Indigenous organizations. This came from the native women’s organization. That’s whose amendment I’m putting forward.
Senator Mitchell: Is there a way we can integrate the two?
Senator McCallum: We can talk about it.
The Chair: With Senator LaBoucane-Benson, please.
Senator Massicotte, do you have anything new?
Senator Massicotte: I’m okay with what 1.12 is proposing. I think it largely satisfies what Senator McCallum is seeking. In other words, the amendment has merit in that regard, but you can have a discussion.
But I’m not convinced it adequately covers Senator Patterson’s concern because 1.12 deals only with Indigenous rights. In other words, it becomes relevant when you don’t satisfy your obligations under Indigenous rights.
But Senator Patterson’s words about any change regarding health, social and economic conditions, I suspect on page 11 under paragraph (d) that we should add “any adverse or negative change.” I think it is not totally covered, but if you add “adverse,” you’re covered there and then 1.12 stands on its own.
The Chair: Perfect.
For your information, it took us one hour and 15 minutes to go over 11 amendments. I assume that we are warming up and that our muscles are warm, so let’s try to move a little faster.
We are at amendment 12 from the Conservative caucus. Who is presenting?
An Hon. Senator: Number 10.
The Chair: We discussed numbers 10 and 11 together with Senator LaBoucane-Benson and Senator McCallum.
Senator Patterson: No.
Senator Simons: The trouble is we’re missing some of this list.
The Chair: Who is presenting amendment 1.13a?
Senator Patterson: This is CPC-1.13a. It relates to page 13 and it’s a proposal to replace lines 6 to 10.
The background to this, colleagues, is that it is suggested that subclause 9(1) creates uncertainty. There have been calls to have this clause amended for that reason.
The amendment also gets to the heart of concerns raised by provinces, such as Alberta and New Brunswick, that Bill C-69 will discourage natural resource investment in Canada.
So the regulations under subclause 109(b) are to be drafted using clear and objective criteria to identify projects that must be identified for a lengthier and costlier review. It’s important to remember that proponents pay for impact assessments, and designated project reviews cost millions of dollars more than for non-designated project reviews. So proponents need to have a reasonable idea, based on the regulations, as to whether a particular project will be designated or not.
Under this clause, I suggest the minister is free to ignore the criteria defined in regulation and substitute his or her own opinion at any time, if she is of the opinion — that’s the word used in 9(1) — that vague criteria like public concern warrant a designation. This is so broad as to give the minister essentially unlimited powers to designate projects.
It doesn’t use social licence, but public concern is equally vague, I would respectfully submit.
That’s not science-based. That’s exactly the kind of political interference in the process that we’ve heard so much testimony about. When investors evaluate the pros and cons of executing projects in Canada, this clause will be in the negative column unless we fix it.
The amendment proposes to create two conditions before the minister can take this action. It does not say that both conditions have to be satisfied; just one or the other.
The first condition is that the project is complex and may require complex mitigation measures. That’s (a) of my proposed new lines 6 to 10 on page 13. The second condition is that the project’s effects are novel and new and, therefore, the severity of its effects and any associated mitigation measures are unknown.
I am making the case that our proposed amendment would add clarity and objectivity to this clause. There will always be an element of judgment when considering whether to designate a project. This amendment would ground that decision in two scientific criteria. In many cases, projects that companies bring forward are extremely similar to hundreds of existing projects. However, as the clause is currently written, companies would have no certainty that even a well-understood project type in a well-understood region would not be designated. That will hurt investment in Canada, and we should address it with this amendment.
Senator LaBoucane-Benson: On our road map, one of ours was missed, and it corresponds to the same one. We have a 1.13 as well.
The Chair: It’s on the next page. We can do it. Which number are you talking about?
Senator Patterson: It is 1.12.
Senator LaBoucane-Benson: So it’s after all these that we get to ours.
Senator Woo: Point of order. Shall we not present all the 1.13s before we discuss?
Senator LaBoucane-Benson: That would be a good idea.
Do you agree, Senator Patterson?
Senator Patterson: Yes. So is it version 1 or version 2?
Senator LaBoucane-Benson: One.
Senator Patterson: Version 1, 1.13a.
The Chair: We are discussing amendment number 12 together with amendment number 17?
Senator LaBoucane-Benson: No.
The Chair: Up to 19, okay. So this is a whole group from 11 to 19.
Senator LaBoucane-Benson: Do you think that just for clarity, instead of reading it out, we should state the intent so that we understand the intent of these changes in that section?
The Chair: I have been advised that you should read your amendment.
Senator LaBoucane-Benson: You’ve been advised to do that?
Senator Patterson: I didn’t read mine out.
The Chair: Yes, you did. If you don’t have it, explain your amendment. You don’t want to introduce your amendment?
Senator LaBoucane-Benson: Mine is done. This is all just 1.13.
Senator Woo: Numbers 13 and 14 are both CPC, so Senator Patterson may want to continue.
The Chair: Okay.
Senator Patterson: Sorry, you wanted me to —
The Chair: Go to the next one.
Senator Patterson: Which is?
The Chair: It is 1.13b.
Senator LaBoucane-Benson: But I’ve also got 1.13a. Do we want to go back and forth? We’ll just do them in the order they are here.
Senator Patterson: CPC-1.13b refers to clause 1 on page 13 as well. This one is part of a broader effort to support Canada’s struggling energy workers by reducing the level of uncertainty created by Bill C-69. It would create new subclause 9(1.1) after the previous amendment I just discussed, which proposed to limit ministerial designation of projects to those that are either complex and require complex mitigation or those that are novel. This new clause would further clarify that the minister could only designate a physical activity if there are unique or exceptional circumstances that warrant designation of the physical activity.
It is really an extension of the previous proposed amendment. Many of the same arguments apply. I don’t want to restate those. I would like to, however, take this opportunity to remind my colleagues that the exceptionally broad ministerial discretion found in Bill C-69 is one of the most unpopular and contentious elements of the bill. Clause 9 in particular was criticized by numerous stakeholders, not just the oil and gas industry but the electrical generation industry as well.
ATCO, a major diversified energy company, said that clause 9 does not convey a clear intent, leaving open-ended scope for interpretation and then challenge of the minister’s decision. This is also the view of the Canadian Electrical Association. SaskPower, the major electricity provider in Saskatchewan wrote that criteria for the minister to use her clause 9 powers should be more specific. Currently, the minister’s power is, in essence, unbounded.
Colleagues, I make the case that the current wording of clause 9 is overly broad, and that creates two main problems. One, proponents will always fear their project will be designated. There is no reasonable way to forecast what someone else’s opinion of the strength of public opinion on an issue will be in the future.
Second, since the minister’s criteria are so vaguely defined, different interest groups will always challenge decisions made under this provision. There will always be a fair argument, since factors like public opinion can never be accurately defined. As ATCO noted, this could lead to increased legal challenges of the decisions made under the act, which is an outcome I hope we all want to avoid.
So the amendment specifically says, adding the following after line 10 in clause 1 on page 13:
“(1.1) The Minister may only designate a physical activity under subsection (1) if there are unique or exceptional circumstances that warrant designation of the physical activity.”.
That addresses common, recurring, familiar, well-known projects, excluding them from being designated.
Senator Mitchell: I have a question for Senator Patterson. Just for background, this element or this power of the minister to designate, was implemented in CEAA 2012. That’s relevant to the extent that the government has had 37 requests since that time. Only three have been approved, and those were requested by proponents. Two of them were requests by proponents, one a mining project and the other one a port.
The third one was requested by the department of parks because it was over a project on the Athabasca River, a hydroelectric project.
The key element in the ones to this point, and it’s referenced here, has been upon request. Generally, if not almost always, they are requested.
My concern with these restrictions would be, among other things, what if a proponent wants to request an assessment of something that isn’t complex or isn’t novel but they feel could be controversial, so they want to have this as a proactive step to allay public fears? Is that not potentially excluded by these restrictions?
Senator Patterson: I’d have to think about that.
Senator Mitchell: I think it’s very important.
Senator Patterson: Are you recommending an adjustment to the amendment?
Senator Mitchell: I think if the committee decides to proceed with these amendments, then some consideration certainly has to be given to that.
I would also like to put this into context a little bit more broadly. There was a great deal of concern from certain parties in the consultation process that spans several years that there was a possibility of doing away with the project list. This is not unrelated to the project list, obviously. In fact, the government agreed to sustain the project list, which is very popular with industry because it gives some certainty about which projects may or may not be included. It’s less popular with other groups, but the trade-off, to some extent, is to allow the minister the option of designating, if that might be required. Generally, if not always to this point, it has been required by request, and very few, only 3 out of 37, have been accepted.
So it’s not the threat that some may believe it is. That is not to say it shouldn’t be addressed, but I’m worried about unintended consequences.
Senator Patterson: Do I understand that you agree that the wording is fairly broad right now?
Senator Mitchell: There are restrictions in subclause 9(7), where it says:
(7) The Minister must not make the designation referred to in subsection (1) if
(a) the carrying out of the physical activity has substantially begun; or
So it’s not going to be a surprise after you put shovels in the ground.
(b) a federal authority has exercised a power or performed a duty or function conferred on it under any Act of Parliament ...
It’s not like you could get a permit from the Department of Natural Resources, assume that’s a go, start and then have that reversed by an arbitrary decision. There are restrictions already in this. Again, to emphasize, this is essentially what’s currently the case and it hasn’t been abused in any way.
Senator Patterson: In seven years.
Senator Mitchell: The use has been extremely limited in seven years, and two of the three have been requested by proponents. The third one has been requested by a park because it was in a park.
Senator Patterson: But you would agree the reference to public concerns creates uncertainty and litigation risk.
Senator Mitchell: I might argue that not referencing public concerns could create greater litigation risk because, if there is a legitimate public concern and the government is unable to respond to that — a public concern that perhaps comes up a number of months after the original application or initiation of the process by a proponent — one might argue that the courts would say we should have stopped to consider that additional public concern.
I would say that could cut both ways. Why take the risk given that the practice hasn’t been problematic?
The Chair: Anyone else on Senator Patterson’s amendment?
Senator Woo: I thought we were going to go all the way through to 19 and then have a discussion. Either way is fine with me.
If that’s the case, maybe we should hear from Senator Patterson as well on 1.13b and 1.13c, and then Senator McCallum on 113, item 15, and so on.
Senator Patterson: 1.13 is a proposed amendment to subclause 9(2) on page 13, and this is about a broader effort to support Canada’s energy workers.
The record is extremely clear, I believe. Canadian energy companies believe that Bill C-69, unless we fix it, will create a lengthy and uncertain process, deter investment and ultimately sacrifice jobs to other countries.
Part of this issue is the mandatory consideration of an expanded list of factors. We heard from a Saskatchewan minister, Bronwyn Eyre. She said to this committee:
Bottom line: you simply can’t add more mandatory conditions and all the opportunities for expansion of scope that this bill envisages and complete approvals in a shorter time. That’s simply not possible.
So we’re trying to amend the bill to mandate consideration of factors where they are relevant. The proposed amendment to 9(2) simply changes “must” take into account adverse impacts to “may” take into account adverse impacts on the section 35 rights of Indigenous peoples. This is consistent with a number other amendments we will move throughout the bill to allow the most relevant factors to be considered in an assessment.
To be clear, if a project may have adverse impacts on section 35 rights of Indigenous peoples, we want those effects to be assessed, but we do not want every impact assessment in this country to go over the legislated timelines because so many factors must be considered with no discretion to screen out any based on the nature of a particular project.
So we are supporting Bronwyn Eyre’s assessment. If we want to be serious about meeting the bill’s legislative timelines, we need to build in a greater ability for the minister and agencies to tailor assessments to particular projects.
Senator McCallum: I can comment on this? That’s what I was going to do.
Senator Patterson: Do both at the same time.
The Chair: Yes, because they’re all related.
Senator McCallum: You’re proposing “may,” and I disagree with that. It should remain “must” because you are looking at the rights recognized and affirmed by section 35. If you don’t, and you only consider it, you’re going to have litigation risk.
My amendment is number 15, MJM-1.13. Did you want me to read the clause first?
The Chair: Yes.
Senator McCallum: It’s under the designation of physical activity and the factors to be taken into account. “Before making the order, the minister must take into account any adverse impact that a physical activity may have on the rights of the Indigenous peoples of Canada recognized and reaffirmed by section 35.”
I want to amend Bill C-69, on page 13, by replacing line 13 with the following:
“have on the rights of Indigenous peoples of Canada — and, in particular, Indigenous women —”.
That last part is what a native women’s organization added. This requirement under subclause 9(2) of the bill that the minister must take into account the adverse effects of physical activity on Indigenous peoples when making an order to designate a physical activity under 9(1) is an improvement on this ministerial power under subsection 14(2) of CEAA 2012. However, the exercise of this power by the minister ought to specifically consider adverse effects on physical activity in relation to Indigenous women. Because Indigenous women can be differently affected by industrial projects than non-Indigenous women and even Indigenous men, it is important that impacts on their rights and interests are taken into account.
Indigenous women have not been considered in a lot of these, and yet they bear a lot of the adverse impacts when there are work camps near their place. They experience impacts such as employment, formal and informal economic activities, work conditions, food security, housing, pressure on health care systems, connections to land and water, culture, self-determination, social relationships, sexual health, sex work, sex trafficking and gender.
According to the lawyer, the scope of modern-day Aboriginal women civil and political rights will be determined in the context of the inherent right of self-government. Women themselves must be part of the process of delineating their civil and political rights.
The court also held that any future restriction on Aboriginal rights must be in keeping with section 35(1). As a result, Aboriginal women can use section 35(1) as a point of negotiation for definition of their modern civil and political rights.
That’s why I wanted that inclusion in there.
Senator Patterson: Senator McCallum, do you not think that the criteria in clause 22 referring to the intersection of gender issues with the project and gender-based analysis — does that not clearly cover the impact on Indigenous women and, indeed, all women? That would be the first point.
Second, I wonder if saying “and, in particular, Indigenous women,” you’re actually eroding or weakening the rights of the Indigenous peoples of Canada. That would be my question to you.
Senator McCallum: You used the word “clearly.” Indigenous women’s rights have never been clearly defined, even though it was in section 35. That’s why we have so much trouble at work camps.
It’s like the first amendment that I made. The right was there, but it was ignored.
The second statement you made — what did you say?
Senator Patterson: The GBA+ analysis at clause 22. Doesn’t that take care of your concerns about impacts on Indigenous women?
Senator McCallum: But the GBA+ has been ignored in a lot of projects.
Senator Patterson: But it’s in the bill.
Senator McCallum: It is in the bill, I know.
Senator Simons: I think we are sort of muddling along out of order here.
The Chair: We can continue with Senator Patterson on CPC amendment 16.
Senator Patterson: Thank you. This is CPC-1.13d. This amendment simply requires the minister to respond to a request to designate a project under clause 9 within 30 days instead of 90 days. We don’t propose to change any other element of the subclause. It was requested by Canada’s pipeline companies. We’ve heard from them, in no uncertain terms, that for linear projects, Bill C-69 will increase uncertainty. The consequences of uncertainty are dire. Pembina told us in committee that without the clarity of a predictable and timely project approvals process, Canada’s energy resources will not be developed because investors will not accept the capital risk.
This amendment is small compared to the major task of addressing such concerns. It’s part of a larger suite of amendments, with the overarching goal of supporting Canada’s energy workers and provinces that have so clearly asked us to make substantial amendments — the majority of provinces in the country.
On its own, it will still have the practical effect of enforcing greater time discipline in the minister’s office. Companies will likely be aware if, for example, an interest group is campaigning to have one of their projects designated. This amendment will remove two months of uncertainty in that case. Instead of waiting three months to get the verdict on an extremely important question, proponents would only have to wait one month. That is reasonable and a very real, if modest, benefit that I hope will be supported.
The Chair: That was clear.
Amendment 17, ISG-1.13b, version 2.
Senator Woo: My amendment is on page 13 but it actually refers to a different issue; it’s the issue that comes before the designation of physical activity and has to do with decision making by the federal authority. It is consistent with the previous set of amendments I have discussed, which is to talk about the significance of adverse effects so that a measurable standard can be applied. There should be no controversy if you accept my previous premise that “significant” is a useful term to add to the legislation.
Having said that, it begs the question as to why we are not, I am not, moving a similar addition of the word “significant” under subclause 9(1), which is immediately below in a different section on the designation of physical activity.
Senator Patterson’s first amendment under 1.13a does include the word “significant,” and I believe it should not. It is complicated.
When you designate a project, whether it’s by ministerial authority or because the agency deems it necessary to designate a project, you don’t know yet whether the adverse effects are significant, so you cannot prejudge in the designation process that “significant” is the criteria. You come to that conclusion after the agency or the review panel or the substitution agency has done its work and that authority provides an assessment of significant adverse effects.
Then the minister or the Governor-in-Council can actually say, “Well it’s significant, but we still approve it.” So if you put “significant” up front in the designation section, you prejudge that the project has been deemed to have significant effects when the assessment hasn’t even been done. That’s my first comment on Senator Patterson’s amendments, and I will reserve comments on other parts of his amendments.
I’m trying to explain why I move the word “significant” in the paragraph above but not the paragraph below. I hope that’s clear.
The Chair: Amendment 18, ISG-1.13a.
Senator Simons: I am delighted to explain this amendment, which is part of a cascading series of amendments that will deal with the issue of ministerial discretion in the early planning phase.
Senator Woo: Page 9 of the package and page 13 of the bill.
The Chair: We are always on page 13 of the bill.
Senator Simons: This is looking at subclause 9(5), and this is like the first note of a chord that will run through this.
The amendment replaces the word “minister” with the word “agency.” It says, “The agency may suspend the time limit for” responding to the request until any activity that is prescribed by regulations made under paragraph 112(c) is completed. “If the Agency suspends the time limit, it must post on the Internet site a notice that sets out its reasons for doing so.”
This is an amendment that sounds the first note of something that we would like to underpin, which is to take discretion from the minister and the minister’s office in the early planning stage and give it more appropriately to the regulator, the idea being it’s not the job of the minister to micromanage the early planning phase of an assessment. It doesn’t actually make any sense; the minister will have other macro jobs instead of doing this micro thing.
This is a credit to Senator Wetston, who recognized that it is more properly the agency itself that should be figuring out if and when it needs a little more time to do something, because it will be the agency that is doing the assessment.
This is a very small amendment, but it’s something that will cascade through so we can have a “rebar,” I guess would be the word, that sequentially takes responsibility from the minister — where I believe it’s inappropriate — and puts it in the hands of the right agent.
The Chair: Does everyone understand?
Senator Massicotte: Not only I do understand, but I want to point out that this amendment changes immensely the whole approach of the bill and I highly recommend it. It’s saying let industry do the work. If we look at all the witnesses we have heard, there is more trust and continuity with the agency than with the political masters. We’re saying, let the agency do all the work, make all the decisions. Let the politicians or government decide whether they like it or not, but give a lot of authority to the agency with regard to timing and public participation. This is very important and goes a long way to the proper governance and removing some of the political risks that everyone saw in the approach.
The Chair: We will go to the amendment.
Senator Simons: It would also amend subclause 9(6). The amendment states:
(6) When the Agency is of the opinion that the prescribed activity is completed, it must post a notice to that effect on the Internet site.”.
I can keep reading, but you get the sense.
The Chair: Amendment number 19.
Senator Woo: It is 1.13b, and it has the same effect of — Senator Simons should have taken this as well. It delegates the authority to the agency from the minister.
The Chair: That’s the cascade.
Are there any questions about amendments 11 to 19?
Senator Massicotte: My question is very technical. It is a stupid question, but in 9(1), there is reference to the minister designating a physical activity. “Designate” means to point out, so the minister will point out a physical activity. It doesn’t say what.
The French copy is okay: “Le ministre peut par arrêté . . . .”; they can stop it. But the English “designate” means nothing; designate means you point out, but so what? It doesn’t satisfy my mind. It doesn’t mean stop it or encourage it or do it. There is a word missing there. Something is missing.
Senator Mitchell: Senator Massicotte, the term “designate” has meaning within this bill with respect to designated projects. That’s what that means. It’s consistent with —
Senator Massicotte: Is it part of the definitions?
Senator Mitchell: That’s a legitimate question, but it’s certainly prevalent and omnipresent in the bill, the consequence or the significance of designated projects and non-designated projects.
And it is in the definitions.
Senator Massicotte: If it’s in the definitions, I have no problem.
Senator Cordy: I have a couple of questions.
Senator Patterson, in 1.13c, you want to change, on line 11, “the Minister must” to “the Minister may.” We heard that a number of projects have been delayed and some abandoned because of litigation. I thought the reason in all cases, but if not certainly most cases, was because the rights of the Indigenous peoples have not been taken into account. They have not been consulted. So are you not concerned that this will extend the period of consultation?
Senator Patterson: No.
Senator Cordy: I’m concerned.
Senator McCallum, I really like the addition of Indigenous women. I think it’s a really good point that you have made. I think it should be all-inclusive when we say Indigenous people, but we’ve learned in the past that it’s not, so thank you very much for that amendment.
Senator McCallum: One of the reasons we did that is because of the past history of the Indian Act and how it removed Indigenous women. When they wanted to go back into their community, there was discrimination from the chief and council. They were not being included, so they were also marginalized by their own communities.
Senator Cordy: Senator Patterson, in 1.13d, you want it changed from 90 days to 30 days. What is it currently in CEAA 2012? I have it somewhere, but I can’t put my finger on it quickly.
Senator Patterson: Senator Mitchell says the timelines under Bill C-69 are better than CEAA 2012. Let’s ask him. I don’t know the answer.
Senator Mitchell: Maybe we could ask the officials.
Could you say what it is now?
Ms. Loth-Bown: The time frame is not defined currently in CEAA 2012, so as per Senator Mitchell’s earlier comment, having a time frame in the proposed act would bind the time.
Senator Cordy: So it’s wide open under CEAA 2012?
Ms. Loth-Bown: That’s correct.
Senator Cordy: And this bill changes it to 90 days?
Ms. Loth-Bown: That’s also correct.
Senator Woo: I’m a little uncomfortable about qualifying the minister’s power to designate using the language that has been proposed.
“Complex” and “novel” are the two key words that have been introduced. The idea is that the minister can only designate projects if these projects are complex and require complex sets of mitigation or are novel. I can think of lots of projects that are complex but which will still be unique in their impact because they are unique to a geography. I can think of lots of projects that are not novel but which will have unique impacts because they apply to a unique geography.
I am a little hesitant to rule out the minister’s designation powers using these strict criteria. I am more uncomfortable, I have to say, with the broad definition of public concerns and I am open to some variation of fixing that issue.
My sense is that even if you took public concerns out, the minister could still receive a request from the public or any group and the minister has to respond within 90 days, and the project cannot have already started.
I’m a little uncomfortable about how much we’re trying to tie the hands of the minister, particularly given the information we received again today that typically this is to help proponents get their projects designated so they can get buy-in from the community and from the public in general. If the proponents want a designated project, we should make it easy for them and not have the minister go through unnecessary hoops to make that happen.
Senator Patterson: I think we agree that there may be a place to carve out an exception, as Senator Mitchell recommended. I think we should note that.
I do want to respond to Senator Simons’ amendment. I agree with what she said. I don’t know if the minister or cabinet would have to make a decision here at the early stage of a project when it says “the Minister,” but clearly, especially in the early stages of a project, it’s entirely appropriate for the agency to have those powers. I think it’s a positive suggestion, and I think the agency would have the experience and knowledge to determine these issues better than cabinet or a cabinet minister. There is room for authority at the end but not at the beginning, not at the early stages.
The Chair: With regard to CPC-1.13a, I would like to ask the officials about the words “complex and may require a complex set of mitigation measures.” Is that language that could have a meaning within the present legislation?
Mr. Parker: I guess I would say two things. That terminology is not currently in the act. It is not defined. There may be some legal considerations in terms of how that would be defined, either by this bill or by interpretation.
I would also note, in terms of the language in here, that “significant adverse effects” is added, and that is a term currently used in CEAA 2012. On that, although there is a similar provision here, there is a connection with the timeline being discussed in that there would need to be, from an operational perspective, a mini-assessment around whether or not it’s significant. In light of the timeline, I think that’s one consideration from an operational agency perspective as to whether or how that would be done.
Senator Simons: I am so pleased with how this has gone.
I think Senator Patterson raises a good and fair point that the language currently seems to leave the minister a tremendous degree of discretion to decide when a project should be designated — a project that doesn’t normally fall on the project list. I’m also mindful of Senator Woo’s argument that the language is overly prescriptive, and I hope that if we go away and think about it, we can come up with language that answers Senator Patterson’s concern, which I think is a perfectly legitimate one. As an Alberta senator, I share it, but we don’t want to box ourselves into a corner where we’re asking people to prejudge that extraordinary degree of significance that maybe you can’t know in advance.
By the same token, I really value what Senator McCallum said about the impact of projects on Indigenous women, but I don’t see that as an amendment to this section that I could support. I think the gender-based analysis part of the factors in clause 22 covers that off. I am glad she made the amendment so we can discuss it and put the issue on the record, but I don’t think it belongs in this part of the legislation.
Finally, Senator Patterson, although I agree with the logic of lots of your amendments, I think changing “must” to “may” in terms of Indigenous consultation could backfire. If the idea is to get us to a place where you’re not bogged down in years if not decades of litigation, we have to discharge the duty to consult up front. I think if we say the minister “may” consider, we could get into a position where the applicant or the proponent does everything right but the Crown didn’t. That would trap the proponent in a situation — and we’ve seen this time and again — where the proponent works with the community, gets the community buy-in, and then it turns out the courts find the federal government failed in its constitutional obligations to consult with Indigenous people.
We don’t want to give the Crown wiggle room because that wiggle room could backfire in the face of proponents working with good will to get projects done.
Senator Massicotte: I have a few comments about Senator Patterson’s recommendation in 1.13a whereby we include the right of the minister to deem effects as complex or novel. I don’t see that. I think the minister, including the officials who are here today, are bright enough to deal with complex and novel issues, and that should not give a further right to the minister to so designate. I think it’s normal. They are complicated. Life is complicated. I don’t see a need to allow that.
Relative to the consideration of Indigenous rights, I think Senator Simons and I agree that it should be “must” not “may.” I think it’s part of the obligation.
Relative to the amendment proposed by Senator McCallum, 1.13, either you include it in the gender part, or if you insist on including a paragraph — you say, “have on the rights of Indigenous peoples of Canada — and, in particular Indigenous women.” I have a problem with the words “in particular” because that means they are getting better rights than males. I think it should say “including” Indigenous women, not “in particular.” Nobody should get special treatment. Everyone is equal. That’s what I would say. If you want to maintain it, put in the word “including,” not the words “in particular.”
Senator LaBoucane-Benson: I really like Senator Patterson’s change from 90 to 30 days. That’s a place we can shave time off that makes sense.
With regard to section 35 rights, the fact is whether we change it to “may” or leave it at “must,” there are Supreme Court decisions that say we have to, regardless. We can change it to “may” but it will always be “must.” There is no choice. I am heartened that the Crown is finally putting this in here and recognizing that that in fact has to happen. Whether we think it is “may” or “must,” it’s “must.” That is where the Supreme Court is at.
With regard to Senator McCallum’s amendment, I think there are a couple of others that deal with the need for Indigenous women to be considered in this process. This group may not like this one, but at some point we have to deal with Indigenous women being acknowledged. Whether it’s in the GBA and we talk about Indigenous women, whether it’s in the factors, at some point we need to give a shout-out to Indigenous women because of what is going on right now in the world, that Indigenous women need a consideration. It may not be here. I think Senator McCallum has given us other opportunities, but I hope we can find some space to acknowledge that, at the moment, Indigenous rights don’t always mean that Indigenous women participate in the same way. It might not be here, but we have to think about that. Maybe when you go home and huddle, you can consider where that should go, that we ensure their perspectives are included in impact assessments.
Senator Patterson: Could it be under the gender section?
Senator LaBoucane-Benson: I think we have to think about that. It could be, but we have to think about where that space is.
Senator Mitchell: Mine comment is tantamount to a point of order. I’m very happy that we’re making progress. I think we’re all finding there are places where a given amendment is clear that it might be rewritten and be more acceptable. In the cases where that’s a given, a discrete amendment moved by a single senator, it would be obvious that that senator could go back and make those adjustments and bring it forward.
But in some cases, for example, on the discussion we had on 1.13a, Senator Patterson’s amendment, where he is accepting that we probably need to make sure to account for proponents that request, that clearly has an overlap. It is not just his. It may conflict or have implications for amendments to the same section.
What I am getting at is that we need to start to at least make an inventory of those so that we can bring the two sides together — two individuals or three individuals — in an orderly fashion quickly between now and the next meeting, and they can work perhaps out those overlaps and clarifications.
I’ve already talked to Senator MacDonald about it. I don’t want to put words in his mouth, but I think we are ad idem on that. I just want a process. It could be our staff. I am not suggesting that the clerks or library analysts would write them, but maybe just keep an inventory so we can check them.
Ms. Anwar: We’re not legal experts on the bill.
Senator Mitchell: I’m not asking you to rewrite it. I’m just saying that we need to make a note of when those situations arise so they can be addressed quickly and efficiently.
The Chair: I hope this discussion is revealing that there are overlapping points. I think we are collaborating. When we finish this — I know that you have identified who is overlapping with your own amendments, that discussions will be had outside of this committee and the new form of the amendment will come to our next meeting. I am counting on that.
I don’t think I need to tell people their homework. I shouldn’t.
We will continue with amendments 20 to 23, all on page 14. Senator Patterson.
Senator Patterson: Thank you, Madam Chair. This is about the standing test and public participation. The current clause 11 on page 14 — am I in the wrong place?
Senator Woo: This is still about the designation of projects.
An Hon. Senator: This is in reference to more than 60 days having passed since the proponent filed an application.
The Chair: It is page 13 in the amendments and clause 1 on page 14 of the bill. Page 13 in our amendments package.
Senator Patterson: This amendment, CPC-1.14a, is to subclause 9(7). It was requested by the Association of Petroleum Producers. This amendment is aimed at responding to their concerns and a strong mandate from multiple premiers to enact a package of amendments that will address the serious concerns of those industries. This is part of the package. Specifically, proposed amendments to subclause 9(7) would set timelines on the minister’s power to designate projects.
We’ve heard from industry that too often the bill creates an open-ended time frame for project designations. The industry fears projects in an advanced stage of provincial review could be suddenly be designated for federal review.
As the bill is currently written, it is submitted there is a chance that special interest groups opposed to nearly all natural resource development in Canada will lobby the federal government to designate certain projects that have already been under review for months or even years. This is particularly relevant when there is a change of government. If a project is not designated by the government of the day, it seems inappropriate that a new government would designate it later in the process. The bill, as written, seems to allow for that to happen. Governments may be elected in the future with different overall viewpoints on natural resource development. It is not reasonable to ask proponents to forecast the outcome of changes in government policy or changes in governments.
Furthermore, the situation I’ve described would be in direct conflict with the government’s stated ambition to have one project, one review in Canada. Once a proponent engages in a provincial review, they should have confidence that will be the final review.
So this amendment, like others being proposed, is about reducing uncertainty. The government will have a reasonable amount of time to decide whether to designate a project, and if it does not, the proponent will be able to proceed in a predictable and timely fashion.
The bill would be amended in clause 1, on page 14:
(a) by replacing lines 4 and 5 with the following:
“stantially began;
(b) more than 60 days have passed since the day on which the proponent filed an application with a federal or provincial regulatory agency to seek approval for the physical activity; or
(c) a federal or provincial authority has exercised a power or per-”; and
(b) by replacing line 7 with the following:
“Act of Parliament other than this Act or under an Act of the legislature of a province that could permit”.
I hope that’s clear.
The Chair: Should you continue with CPC-1.14b?
Senator Patterson: This is the one about standing. It proposes to change the phrase “the public is provided with an opportunity to participate meaningfully” with the phrase “the public is provided with an opportunity to participate meaningfully, as set out in this Act ...”
It is submitted that the current provision that the public must have an opportunity to participate meaningfully, without any further limitation, is unclear and creates uncertainty and litigation risk, two of the key issues I hope our committee is committed to addressing. We’re not disputing that the public should be able to participate meaningfully. We’re saying that “meaningful” needs to be defined for practical reasons in the act.
I do believe there is an ISG amendment that will allow the agency to set out rules for standing. I think this amendment actually would fit in with that. It would provide more clarity to what “meaningfully” means.
The Chair: Good. Agreed. Yes.
We also have ISG amendment 23.
Senator MacDonald: We had agreed to a three-hour meeting. I know we’re making some progress, but some of us have commitments. It’s after 11 o’clock. I have meetings scheduled for 11:15 and 11:45.
Senator Massicotte: You can go. We’ll just continue.
Senator MacDonald: We agreed to three hours. Other people have stuff to do, as well.
The Chair: Let’s finish this.
Senator MacDonald: I think we should finish this.
The Chair: Senator Woo, you’re going to present ISG —
Senator Woo: No, it’s Senator Massicotte.
Senator Massicotte: Further to Senator Patterson’s comments, I would add the words, in clause 1, page 14 — I’ll read it all with the amendment: “The Agency must ensure that the public is provided with the opportunity to participate meaningfully,” and I would add the words “in a manner that the Agency considers appropriate, in its . . .”.
We heard a lot of testimony wanting more clarify of what “to participate meaningfully” means. Most of the witnesses, particularly on the industry side, were comfortable in giving that discretion. They were recommending that we make it very clear that the agency has a right to consider and adopt a program that gives public participation. It’s important to include it in there, if you look at the testimony, because they’re concerned that if we don’t specifically say that the agency has authority, it will all be subject to litigation and so on.
It’s important to add the words “in a manner that the Agency considers appropriate.” It is their authority, and they can develop a program. A lot of people were worried about standing, but a lot of witnesses made it very clear that they can develop a program. They do it currently, and the agency is well tooled and experienced to develop a program in which everyone participates meaningfully. That’s where the authority should lie.
The Chair: There is one more? Is it Senator Woo?
Senator Woo: It would be ISG-1.14b. We’re now in a new section on planning. We’re finished with project designation, and we are now on the obligations of the agency. This amendment ensures that the agency in its early planning phase consults with provincial jurisdictions and Indigenous groups, as well as the life-cycle regulators.
One the themes that you will see throughout a number of ISG amendments is to make better use of the expertise and experience of the life-cycle regulators, especially in the early planning phase. As the bill is currently written, they tend to kick in only when the impact assessment has started or on a review panel. The feeling is that if early planning is to achieve its objective, which is to figure out the key questions and issues, and the licensing and other compliance requirements, the best way to do that is to involve the life-cycle regulator.
So you will see in the amendment that we ask that the agency offer to consult with jurisdictions. We ask that the agency cooperate with the CER, the CNSC and the two offshore boards.
Senator Mitchell: My first point, and perhaps it’s a question, is with respect to CPC-1.14a, Senator Patterson.
In your amendment, you say in (b), the second line “filed an application with the federal or provincial regulatory agency.” You go on to say in (c), “with a federal or provincial authority.”
The problem I have is that this, in a sense, inserts provincial authority into federal jurisdiction. Under no circumstances would Senator Carignan, for example, from Quebec ever contemplate the reverse; in fact, there are people who have concerns with that, and there are measures that they may be taking, amendments.
Sorry to pick on you, Senator Carignan.
I have a real problem with that in the sense that the federal government’s decision would be limited in its authority, responsibility and jurisdiction by an action of a provincial government. So I raise that.
I appreciate the effort to further define in amendment 1.14b “meaningfully” as set out in the bill. I wonder where in the bill it would be set out. I think that intent, consistent with what the ISG members have said, is really captured, Senator Massicotte, in the designation of the agency’s assessment of what is appropriate.
I also think that has a further important effect in that it reinforces the responsibility, power and importance of the agency in this process, which is desired by many stakeholders, to ensure it is of significance and consequence.
With respect to 1.14b, I want to say that I wholeheartedly endorse it. This is a very important amendment, because it meets great concerns on the part of a number of stakeholders and interests. These boards have very significant expertise. We know that. It’s not to be diluted or lost. So this serves to insert it much earlier in the pre-planning process, and it strengthens it. If Senator Wetston were here with his expertise in tribunal work and on the NEB, in fact, I think he would endorse it and explain it better than I have.
The Chair: So two final comments: Senator Woo and Senator LaBoucane-Benson.
Senator Woo: I’ll pass.
Senator LaBoucane-Benson: Senator Patterson, when you were saying “as set out in this Act,” is the idea, then, to have a definition of “meaningfully”?
Senator Patterson: Yes. It’s to qualify it, but I guess we weren’t aware of Senator Massicotte’s helpful amendment. It fits nicely with the intention of clarifying “meaningfully.”
Senator Massicotte: Senator Patterson, further to Senator Mitchell’s comments, CPC-1.14a refers to 60 days and “a federal or provincial regulatory agency.” I think “or provincial” has to come out, because who knows? They may not even be aware that something was happening at the provincial level. Would you agree to take out the words “or provincial” from your amendment?
Senator Patterson: We’re preparing for a detailed clause-by-clause consideration. I’d like to reflect on Senator Mitchell’s comment. I’ve been fiercely opposed to the federal invasion of provincial jurisdiction, and I guess, logically, we should be concerned about the reverse. So I’d like to contemplate that. I think we’ll be ready to vote on that when the time comes.
You’re suggesting to delete “provincial regulatory agency”?
Senator Massicotte: “Or provincial.”
Senator Mitchell: At the very least, from my point of view, you’re being conciliatory, so I should be too.
I’m not sure this is necessary at all. I think 7(a) and 7(b) cover it quite adequately, but if the Senate committee did decide to proceed with this, I think, at a minimum, it would have to be done without “or provincial regulatory” in it.
I would like to address the 60 days, but it’s okay. I can do that later.
The Chair: Colleagues, we are getting many requests that we reveal the amendment package to the public and the media, but I want to ask for your permission. Maybe there are reasons we don’t want to share it right now. Are there any comments for or against?
Senator Patterson: Well, Madam Chair, we are in a public meeting.
The Chair: Yes, but they don’t have the whole thing.
Senator Patterson: I understand that, but we’re referring to documents. I think that the more transparent we can be, the better.
Senator Carignan: It would be helpful for people who are following.
The Chair: So with your agreement, we’re going to do so.
Senator Patterson: If there are people willing to slog through this, God love them.
The Chair: So with your agreement, we will adjourn.
Senator Tkachuk: I don’t know why we’d report what we’re working on when we don’t know what’s going to be made public at all. We have our group of amendments and the ISG has its group of amendments, but we can’t forecast what is going to happen on Monday. We don’t know. We would be releasing amendments that we’re working on, to be made public, which we might not even move. I don’t know why we’re doing that.
Some Hon. Senators: What’s the difference here?
Senator Tkachuk: What’s in public now is everything we’re talking about, but we haven’t talked about a lot of it. We haven’t even discussed it. We haven’t even decided we’re going to move it.
It’s out in public now, but what I’m saying is everyone has their own amendments, but we don’t know if we’re going to move them.
The Chair: Senator Tkachuk, I’m sorry. I asked the members of the committee, and the members of the committee agreed unanimously, including members of your caucus.
Senator Tkachuk: Just note my disapproval of this is in the record, and we’ll go from there.
The Chair: Yes, you have expressed your disapproval.
Senator Tkachuk: You’ll rue it. They’ll all be talking about it in the media tomorrow.
(The committee adjourned.)