Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue No. 70 - Evidence - May 13, 2019
OTTAWA, Monday, May 13, 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 6 p.m. to give clause-by-clause consideration to the bill.
Senator Rosa Galvez (Chair) in the chair.
[English]
The Chair: Good evening and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Rosa Galvez. I am a senator from Quebec and the chair of this committee.
I will now ask senators to introduce themselves, starting with the deputy chair.
Senator MacDonald: Michael MacDonald, Nova Scotia.
Senator Richards: David Richards, New Brunswick.
Senator Mitchell: Grant Mitchell, Alberta, Treaty 6 territory.
Senator Cordy: Jane Cordy, a senator from Nova Scotia.
[Translation]
Senator Massicotte: Paul Massicotte from Quebec.
[English]
Senator Seidman: Judith Seidman, Montreal, Quebec.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Tkachuk: David Tkachuk, Saskatchewan.
Senator Simons: Paula Simons, Treaty 6 territory, Alberta.
[Translation]
Senator Mockler: Percy Mockler from New Brunswick.
[English]
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Woo: Yuen Pau Woo, British Columbia.
Senator McCallum: Mary Jane McCallum, Treaty 10, Manitoba region.
The Chair: I would also like to take this opportunity to thank the clerk of the committee, Maxime Fortin, and senior clerk, Shaila Anwar, and the analyst from the Library of Parliament, Jesse Good.
Tonight we continue our clause-by-clause study of Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts. We are discussing the amendments that have been put forward by senators, as we have been doing all week.
I just want to say a few words. I think we now understand what the process is and the approach for our discussions.
The only issue is that we have to accelerate. We have to increase the pace if we want to get to the actual adoption, rejection or modification of the amendments that are on the table.
I also understand that there are high expectations by the public and the media, but I encourage you not to be distracted. I know it’s very difficult to concentrate, but we have to do it.
I have heard that you want to —
Senator Massicotte: I would like to move:
That we complete our ongoing open review/discussion of amendment by amendment by Tuesday evening without fail, with permission and agreement to sit whatever hours this takes;
to receive a black-lined copy (noting all additions and removals to the proposed Act) combined with an updated list of all amendments proposed by Wednesday noon; and
to confirm/amend/finalize/vote on all proposed clause-by-clause amendments at our Thursday morning meeting, with permission and agreement to sit whatever hours this takes on Thursday.
I propose this motion for discussion and hopefully agreement.
The Chair: First, I think you need to know that the clerks won’t be able to do this black line.
Senator Massicotte: Somebody else should do it.
The Chair: Somebody else could do it.
Senator Tkachuk: Could you repeat that, Senator Massicotte?
Senator Massicotte: Let me read it again. I move:
That we complete our ongoing open review/discussion of amendment by amendment by Tuesday evening without fail, with permission and agreement to sit whatever hours this takes;
to receive a black-lined copy (noting all additions and removals to the proposed Act) combined with an updated list of all amendments proposed by Wednesday noon; and
to confirm/amend/finalize/vote on all proposed clause-by-clause amendments at our Thursday morning meeting, with permission and agreement to sit whatever hours this takes on Thursday.
The Chair: It has been more than a couple of months that I came up with this idea to form a subcommittee to put together amendments brought forward by different groups and caucuses. I don’t know yet if it’s too late or if there is still time to form the subcommittee that maybe can implement and execute the idea that Senator Massicotte is proposing. Maybe there is some appetite for a small group that can do the work.
We saw in our first exercise that some amendments are very similar in their intent and purpose, and there is some overlap. There are others that may be substantially different and need more discussion. But maybe a subcommittee of a few senators can put together this document that Senator Massicotte is requesting. But, definitely, the clerks here won’t be able to do that.
Senator Woo: I like the intent of Senator Massicotte’s proposal. I don’t know how we can do it without some kind of intercommittee meeting work that’s done by whatever you call it, a subcommittee or small group or working group.
The difficulty will be in coming up with resolution language for amendments that conflict, if that’s what we want to work toward. That would be very difficult to do in committee, and it is probably not a good idea to try and do that in committee on the fly.
I absolutely agree with the need to have extended hours, as much as we need to get it done by Thursday if possible. I think the way to make that happen, though, is having a small group that can help us put together compromise amendments or common understandings in between committee meetings.
Senator Mitchell: I certainly like the idea of extending hours and putting the time limit pressure on us; if we have to go all night, we have to go all night.
Let’s look at the math. We did 19 amendments in two and a half hours and there are 215 amendments. We didn’t even do 10 per cent, and that is another 30 hours at that pace.
Senator Massicotte, I agree with you that we have to have this done by Tuesday evening to get it done by Thursday morning finally. And we have to find 30 hours between tonight and Tuesday evening. That’s relatively difficult to do.
There are ways to streamline this process, still do our job and be clear that we’re evaluating these carefully. Believe me, we’ve been evaluating this stuff for a year. It is not like we haven’t considered this. I’ve never had more input from the public and stakeholders on any bill in the 14 years I have been here.
Here’s what I would propose: We could do it in a subcommittee meeting to streamline the process. We can categorize the types of amendments that we’re looking at.
There is a large number of amendments, both ISG and CPC — Conservative amendments — that don’t contradict and aren’t really anathema to one side or the other. We could easily categorize that. In fact, ISG has done some of that retroactively, the ones we worked last Thursday. Of the 19, I think 12 or 13 probably fall into that category.
We could do what we did under Senator Tkachuk’s efficient management of Bill C-49 as chair, he had one person speak for, one person speak against, and we voted. That was doing our job — but with those ones, that first category, we could have one person speak for, one person speak against, and then allow them to go through on division. We could do broad swaths of these amendments that way.
The second category would be those that are “substantive contradictory,” and there are subcategories. The first one would be substantive contradictory where both sides could look at it and say, “They are awfully close, so we’ll accept ISG on this one and on this one, and we’ll accept the Conservative one.” That would be facilitated particularly if they are the same subclause and clause, because they are almost interchangeable and the government can deal with them.
The next subcategory that may be more difficult is where they’re trying to fix the same problem but they are different clauses and subclauses. We would have to figure out a way to set those aside and work on them.
If we don’t do that, we could have votes on everything and we could defeat everything on tied votes, and we will go through it with nothing or bits and pieces that slip through. We would then end up at third reading trying to do the same thing, and that would be a nightmare.
Senator Massicotte, I agree with what you are saying in the sense of time pressure. I know that we had a bit of a conversation before. I don’t agree that we can’t package, and I don’t agree that we can’t identify ones that are not controversial, in particular — they are just different — and don’t contradict. We can do them on division and get them done quickly. Then we deal with the ones that are more controversial and difficult. We can deal with them as we go, and we can probably do that in three or four hours. I think you’ll find relatively few where we really have a problem with that kind of contradictory substantive difference.
I think there is a blend of approaches here. We can work tonight and do what we can, maybe keep those ideas in mind, and then get a subcommittee together tomorrow that could begin to streamline it further. I bet you would get a lot of work done in a subcommittee in the three or four hours, then bring it back out in the open, in public and have a debate if you want one. Maybe you have a few more people speak on some — Senator Massicotte, fine, no problem. We’re doing our job and doing it well.
Senator Massicotte: Let me clarify. This is a timing issue. We need to agree to time this process to suit our objectives so we can schedule work accordingly. How do we get there? That’s a secondary issue, and we need to have that discussion.
When we started off a couple of days ago, some people on the Conservative side felt very strongly that they didn’t want to debate the principle, but rather educate ourselves and understand the issues, and that was important to them.
Given the territory and the road we have crossed, I propose that we sort of try to maintain that. It is probably important to some of us to be involved in a debate on the principle where it’s obvious we agree and don’t agree. Subsequent to that discussion, we should have a small group of people on each side, not very many, consolidating our thoughts. In other words, “There is agreement on that; clause by clause was good; not agreed to that; a couple of words are duplicated.” In other words, in tandem with us, another team would be trying to get the package ready for our clause-by-clause consideration Thursday morning.
But I think there was an appetite to have the debate among ourselves and not delegate it completely to a committee.
Senator McCallum: If you’re going to do that, then I need to somehow flag issues that have Indigenous consequences. Because this is the first time that a lot of them have brought their amendments forward, and they feel like they’re being listened to. They appreciate that. We need to continue to let them know that their considerations are very important as well.
Senator Mitchell: I have no problem with that and none of this would diminish anybody’s amendments. In fact, those would be substantive amendments that would need to be considered and done in public. They might not be contradicted by anybody.
The Chair: I would like to hear some opinions from the Conservative caucus.
Senator MacDonald: I suggest you give us a 10-minute recess while you sit down with my colleagues in the Conservative caucus.
There is a little more on the table here, Senator Massicotte, than you initially proposed. I want to discuss it with my colleagues.
Senator Woo: Can you clarify that Senator Massicotte is asking us to have a formal clause-by-clause vote on Thursday so that it is done? Because we haven’t even started that yet.
Senator Massicotte: Yes.
Senator Woo: Okay. Thank you.
Senator Patterson: I would be interested in getting a copy of Senator Massicotte’s motion. I know we heard it twice.
Oh, it’s in the email?
Senator Massicotte: I can send you another copy.
Senator Patterson: No, that’s okay. I got your email.
The Chair: It will need to be modified.
Senator Massicotte: To clarify, I’m seeking a timing resolution. We could discuss that in smaller groups. That is not part of my resolution. That is something for us to agree on. I’m trying to get to the timing and then we can discuss how we get there, but that’s secondary.
The Chair: I think that Senator MacDonald has a good idea. Maybe we should have some time with our groups and discuss. Do we want to go in camera?
Senator MacDonald: Suspend for 10 minutes.
Senator Tkachuk: Suspend, and we’ll go to our own rooms.
The Chair: And reconvene back at quarter to seven?
Senator Tkachuk: Quarter to seven is good.
Senator MacDonald: Madam Chair, 6:30 should be fine.
The Chair: Is 15 minutes enough?
Senator MacDonald: We’re not complex people.
Senator Patterson: Can I ask for a clarification from Senator Massicotte?
Senator Massicotte said his motion is about timing, but I also thought it included a reference to the development of a black-line copy from which we could work.
Senator Massicotte: Do you want me to read it again?
I move:
That we complete our ongoing open review/discussion of amendment by amendment by Tuesday evening without fail, with permission and agreement to sit whatever hours this takes;
to receive a black-lined copy (noting all additions and removals to the proposed Act) combined with an updated list of all amendments proposed by Wednesday noon; and
to confirm/amend/finalize/vote on all proposed clause-by-clause amendments at our Thursday morning meeting, with permission and agreement to sit whatever hours this takes on Thursday.
Senator McCoy: Why don’t you email that to everyone and they can print it out themselves for consideration?
Senator Massicotte: I did.
Senator Tkachuk: How long, Senator Massicotte, do you think that would take?
Senator Massicotte: That’s a good question.
Senator Tkachuk: It’s an important question.
Senator Massicotte: Subsequent to that agreement, we need to decide how we are going to proceed and if everyone is comfortable to proceed. We had that discussion before. There wasn’t agreement on how to proceed. If the level of comfort is high that we’re seeking the same thing, we should probably delegate more authority to a separate group; but if you want to have the debate here, and there is some argument for that, we should have the discussion of principle we are doing, amendment by amendment, discuss the merits and nod where we agree, but it’s not the official clause-by-clause consideration. It’s for the sake of seeing where we have consensus or not, because the real clause-by-clause consideration is Thursday morning.
Knowing the thoughts of some of your colleagues, I would continue with the discussion we’re having on the principal agreement, where we agree or disagree for the sake of knowing and appreciating each other’s position. I would ask the smaller group to say that, after discussion, you should follow up to say that you agree or disagree. Let’s prepare the clause by clause for Thursday morning.
Senator Tkachuk: The Independents and the Liberals have 70 in the chamber, and there are about 30 of us. We all have other business and it’s problematic for us. That’s why I’m trying to get an idea, as you well know, of how long this will take, because we don’t have that many substitutes.
Senator Massicotte: I would suggest that the subcommittee not reach an agreement that is not consistent with our discussion. I would say maybe one of us on each side, including other senators or somebody else who joins up on that committee, that issue of personnel.
Senator Tkachuk: Once that happens, then the discussions take place in private and not in public.
Senator Massicotte: It should only be subsequent to our discussions, given the direction we provide from our discussions.
Senator Tkachuk: One isn’t contingent on the other. I’m trying to clarify. This is complicated.
Senator Massicotte: It’s not. What process best allows us to achieve the timing? My resolution was a timing element, and then we can have a substantive discussion on how we best get there.
The Chair: On the motion, Senator Patterson, Senator Mitchell.
Senator Patterson: I believe the motion also includes a suggestion that in order to make use of our time tonight, we consider the “roadmap” discussion. In that connection, at our last meeting, we were told that the roadmap had been developed up to amendment No. 67. It was a lot of work, and I appreciate that was as far as our capable staff could get.
The Chair: Now it’s completed.
Senator Patterson: Is there a complete roadmap and can it be distributed?
The Chair: You have it.
Sorry, they’re going to get it. It’s coming.
Senator Patterson: How many are there now?
The Chair: There are 200.
Senator Patterson: We did agree that there would also be the possibility of additional amendments being introduced?
The Chair: The deadline for our committee was May 9. Of course, there will be another opportunity at third reading debate in the chamber, but we decided the deadline for submitting amendments to the committee was May 9.
Senator Patterson: At our last meeting I mentioned I might have additional amendments.
The Chair: We will ask colleagues to see if they are agreeable to receive them.
Hon. Senators: Yes.
Senator Patterson: That’s what I recall.
Senator Mockler: We need to give other senators around the table an opportunity to bring forward additional amendments. Is that agreeable?
The Chair: Of course. We have been receiving amendments.
Senator LaBoucane-Benson: If we’re going to take a 10-minute break, is it possible for Senator Galvez to go to the chamber and ask for leave for us to sit until 11:00? I’d like to keep going tonight. Is that possible?
You’re not willing to sit until 11:00? Just checking.
Senator Mitchell: I think under the circumstances the committee could agree to sit until 11:00. Who is going to come in here and kick us out? I don’t think so. If we are agreed, we can. We just have to move a motion.
The Chair: Just for your information, we have permission to sit and there is no limit. It is for us to decide.
Senator Mitchell: My question for Senator Massicotte is what do you mean by black-line? Does someone take the bill and fill in each —
Senator Massicotte: There is a lot of software out there. The iPad automatically notes the words that you take out and puts a slight line on top of them. It also notes the words you add by using a different italic or colour so you can read it in context.
I would suggest it’s dangerous for us to approve the amendments without reading them in context. The way we are doing it now is sloppy.
It’s pretty automatic. I think we should have it all the time. How can we as a chamber approve amendments without knowing the context and seeing it?
Senator Mitchell: Would it be possible to have a chart that shows, page by page, the CPC amendments and then the ISG amendments, then the CPC and the ISG, so we can see what the text is now, what the motion is and how the motion fits into the text? That means you don’t have to have the whole document done. You can just do a chart or spreadsheet. I have seen some of that stuff. It’s much easier to use.
Senator Massicotte: You can do it in your spare time when you see fit.
Senator Mitchell: I’m not laughing.
Senator Tkachuk: We could.
Deputy chair and chair, we might want a little longer than the 15 minutes because it looks like we will have two motions now. We have another motion that will be coming.
I think we all agree, with all the amendments we have, that this bill is a mess; otherwise we wouldn’t be having 200 amendments. That just says this is a mess.
The Chair: Let’s take our 15 minutes. We can sit until 9:00 because we have all of the services. After that, people need to go.
We’ll come back at quarter to the hour.
(The committee suspended.)
(The committee resumed.)
The Chair: Do senators want to speak to the motion or are we ready to vote?
Senator Patterson: Madam Chair, I think my colleagues will agree that Senator Massicotte’s thoughtful suggestion is a good way to go. We need a process to consolidate the results of our discussions on the roadmap, and the black-line document will be very useful.
I did want to say this with all respect; I know a lot of work has gone into the roadmap, but the document is a little bit difficult to work with in places. Early in the document there are proposed amendments that are part of a new section that is discussed later in the document.
As I understand it, in Senator Massicotte’s black-line proposal, each clause will spell out the amendments in a fashion that we can more easily understand than referring from one package to another.
The second thing I want to say may be more personal, but I think it applies to some of my colleagues as well. We all are keenly aware of the short time available, but one of the problems I have is that I’m a critic for about 10 bills. I’m on four committees and chair of one committee. The idea of meeting for many long hours is going to mean I would be neglecting some of my other duties.
I just want to say I hope we can do it. I understand we have a clear target of Thursday, but meeting for unlimited hours is going to pose a real hardship on me personally and it may affect some of my other colleagues as well. Thank you.
The Chair: I want to give two points of information. First, this is the way it is done. It’s not our invention. It has been there for the hundreds of years that the Senate has been reviewing bills, so this is the way that we do it.
Second, these amendments have been with us for some time. We have read them and we have an understanding. I have read them and I understand them. To tell you the truth, there are some amendments from the Conservative caucus that I like and that I’m going to support. I am really anxious to move into clause-by-clause consideration so that we have some actual progress.
Based on the discussions of last week, it was very evident that there are understandings and we are agreeing on many subjects and amendments.
Third, on the issue with the black-line document, the law clerks won’t be able to do it. We’ll have to find somebody else to do that. But I think why invent something when we already have been working for many years with this method?
In regard to the deadline, we need a deadline because the clock is ticking and we have to get into amending, adopting, rejecting the bill. So that is the pressure.
I don’t understand why you are in charge of so many things at the same time.
Senator Patterson: We have dwindling numbers, in case you didn’t notice.
The Chair: I know you are very intelligent, that you understand everything and that your analysis is always very pertinent.
Senator Patterson: Thank you. That’s very kind of you.
Senator Tkachuk: We were doing really well. We never did understand why, when Trudeau said an independent Senate, that no Conservatives would get appointed. That would have been very helpful in this situation.
Senator MacDonald: I want to reinforce the big issue for us. We’re comfortable with the motion, but we can’t have open-ended the timelines. We can be as hard-working or as intelligent as we want to be, but we can’t be at two places at one time. None of us can be.
So far we have agreed to sit on Mondays and sit three hours instead of two hours. We’re fine with that formula, but we can’t go into this with an open-ended timeline. We need set times.
Senator Woo: I agree with the deadlines, but I think we need to qualify the black-line issue. It should not be a condition of getting to clause-by-clause votes on Thursday. Ultimately, black-lines are the responsibility of individual senators or the groups. The ISG amendments have black-lines because we’ve done black-lines. But we should not say that unless we have a black-line on every amendment, we will not begin clause by clause.
The clerks have said clearly they cannot do it. If your offices can do it, by all means. If you want to share it, that would be even better. But we should not insist on this as a condition.
On the question of getting to a vote, maybe that’s something we pick up after this motion. You’ve raised a good point about whether we should begin the actual clause-by-clause process. I want to make an intervention on that, and if we have that discussion, I’ll do it at that time.
The Chair: I think we have discussed enough. We should be voting.
Senator Massicotte: Can I clarify something? I’ve had discussions with Senator Mitchell and I think we can produce a document which would be very close to the black-line.
The Chair: Who?
Senator Mitchell: It’s just a chart, a list of amendments. It’s easy to do.
Senator Simons: Can we vote on the timeline motion?
The Chair: Yes, we should vote on the timeline.
Senator Seidman: It’s all one motion, so I think the black-line was part of the motion. If we don’t have any guarantee that we’re going to have a black-line copy of the bill to work with so we can be clear on the amendments, then the motion isn’t the same motion anymore. It’s a little complicated.
Senator Massicotte: Would you agree that the motion be amended that we’ll make our best efforts to get a black-line copy?
The Chair: Yes. That’s good.
Senator Massicotte: It’s best efforts.
The Chair: There is always the old method, the way it has been done.
Senator Mitchell: I agree with that. Even if we don’t get a black-line of any kind — and I think we can get a model that approaches that — we can go through like we’re going through it now. We see all the amendments. We can make that work. Why don’t we just vote on the time?
Senator Cordy: Why don’t we just have the vote and move on? We’ve already used up an hour of this evening’s time.
I think that, like others, clearly you’ve got time challenges. So have I and so have members of our caucus. That’s why I want this bill to get to the chamber. I’ve got a report on foreign affairs of 100 some pages that I have to read, a report on human rights — where I’m deputy chair that I have to read.
This is all-encompassing and I just want to deal with it. The agreement was that it would have been done last Thursday. That didn’t happen. We agreed to move it forward to this Thursday. Please don’t tell me that it’s not going to happen because, really, we’ve wasted an hour.
Senator Patterson: Can I ask one question before we vote? You said that our committee clerk would not be able to develop the black-line document. I understood the clerk and the law clerk produced this. I’m sure this was a lot of work. Especially with all the knowledge they’ve gained from putting this together, why could they not? Then we’ll have neutral people doing that work.
The Chair: I know there is an issue. We don’t have our version of the bill. We need to decide on the amendments and the weight of the amendments so that they can be put together.
We have to take decisions. Then they will take instructions. But if we don’t take decisions, then they cannot implement and execute.
Maybe I can ask Shaila to express some of your reasons. On the black-line, what is the —
Maxime Fortin, Clerk of the Committee: Senator Massicotte mentioned that he was amending his motion?
The Chair: You’re amending your motion, Senator Massicotte? Can you read it again?
Senator Massicotte: I am amending the motion whereby I am saying we will pursue best efforts to provide a black-line copy.
The Chair: Let’s vote.
Senator MacDonald: You also have to amend the motion to take away the open-ended timeline on Thursday.
Senator Massicotte: How do you do that?
Senator Cordy: We’re already —
Senator MacDonald: We’re not sitting more than three hours, Grant. That’s it.
Senator Cordy: We’ve already gone beyond our original agreement, which is last Thursday. Now we are going to go beyond again. When are we going to meet again? Tuesday morning of the break week and Wednesday morning? Let’s just move on. Let’s have a vote, please.
Senator Mockler: On the amended motion, Madam Chair, I think it’s important that the proposer defines “best efforts.” What do you mean by best efforts to produce a black-line?
Senator Massicotte: It is a concept very much applicable in law. It means best consistent efforts to get there, to produce that black-line.
Grant has shared something with me that won’t be a perfect black-line, but it will note all the amendments and will achieve our objectives. I have to speak to him and ask if we can get that. And can we copy it to everybody?
Senator Mockler: If that’s the case, you have to talk to Senator Mitchell.
Tell me, Madam Chair, or direct me on the basis that they can produce a black-line and our clerks can’t.
The Chair: Because there are some decisions involved in producing the black-line. These decisions are our responsibility, not their responsibility.
Let’s vote. Who is in support of the motion of Senator Massicotte, as amended?
Who is against?
The motion is defeated.
Colleagues, let’s continue our discussion on the principle, unless there is an appetite to go directly to clause-by-clause consideration.
The first 24 amendments have been discussed, and we have made the for and against arguments. I think some people have already made up their minds with the first 21 amendments.
Is it agreed to proceed with clause-by-clause consideration?
Some Hon. Senators: No.
Senator Tkachuk: We haven’t gone through all the amendments.
The Chair: The way to proceed is to go amendment by amendment, discussing each one, adopting it, rejecting it or modifying it if needed?
Senator Tkachuk: I thought we had an agreement to go through them all.
The Chair: There was not an agreement. It was just a discussion.
Senator Tkachuk: An understanding?
The Chair: An understanding.
Senator Tkachuk: That’s pretty close to an agreement. Now you’re saying we don’t want to do that.
Senator Woo: What Senator Galvez is suggesting, I think, is because we’ve already discussed items 1 to 19, we had a discussion and reached some kind of understanding. Are we able to then vote on the first 19 items? We would stop at 19 and then presumably continue with the principles discussion from 20 onwards.
The Chair: Continue with the principles.
Senator Woo: I understand that. I’m leaning in that direction. However, I would not want to begin if what happens is what we saw happen in the previous vote where we are split down the middle on every single amendment and everything gets defeated. That will not look good for all of us.
Right now, without some kind of offline discussion about whether there’s consensus and whether there’s a meeting of minds, if the vote on the first 19 items goes the way we saw the vote on this very innocuous motion to meet a deadline that has already been passed, we will have zero amendments.
We all need to have an understanding of how this is going to play out. If we vote strictly along the lines of who moved the amendment, nothing will get through. I don’t want to start a process where nothing gets through because there are some very good amendments here. I don’t see how we can do this unless we have some kind of offline discussion about who is going to do what.
Senator Mitchell: I agree with Senator Woo. I know the Conservatives on the committee are committed to a Thursday deadline. We all agreed. Given that they have defeated a proposal that was very reasonable to get there, and this idea of an offline meeting to categorize, I’d like to hear what their proposal is for us to get it done by Thursday.
If we don’t get it done by Thursday, then we don’t get it done. We’d have to come back in the break week. I can’t imagine the Conservatives wanting to do that. So then we’d end up in the last week of May.
Again, if we don’t start to streamline this, we’re looking at 25 or 30 hours. We’re not going to get that done by the last week of May, and then we would be into the first week of June.
We’ve all agreed — and I’ve been told explicitly — and we’re all very concerned about not getting this done. Stakeholders want this done to the extent that the industry has provided a lot of impetus for amendments. They want certainty.
Could the Conservatives — Senator MacDonald or Senator Tkachuk — give us an idea of how you would propose that we get it done by Thursday morning? I’m just asking for some sort of insight into doing that?
Senator MacDonald: It’s very simple: Accept the package of amendments we put forward.
The Chair: Let’s go amendment by amendment. Let’s start amendment by amendment
Senator Simons: I’m very sorry to see us regressing because I thought last Thursday we made some wonderful progress. I thought that we were moving toward a collegial understanding that we are all invested in making this a better piece of legislation for everyone.
Last week, we had some very fruitful debate in which we saw commonalities that where I could like that amendment and you could like this amendment. Before we forget all of that, it might be advisable to break this into segments. Let’s look at the first 19 points and for the commonalities that we found last week — I’m not imagining this — show some goodwill and start tonight so we accomplish something.
Canadians are watching us. We just spent an hour debating nothing. If we could actually move some amendments forward tonight on which we have broad general agreement and show some goodwill, we could come back and do the analysis of the next 20 or 30 which will go faster because these initial ones set the groundwork. These set the defining principles for all the amendments that come afterwards.
The Chair: We had agreed at steering that we were going to start clause by clause last Tuesday. That was the agreement. I have a written agreement from the three members of steering.
I think we should go into amendment by amendment. Let’s do it.
Senator Simons: Canadians are watching us. We need to make this work.
Senator Tkachuk: What are we doing here? Are we going to clause by clause or are we going to continue on the amendments until we’re done?
The Chair: We are going clause by clause as we agreed. We had agreed that we start clause by clause last Tuesday. We have now discussed already 25 amendments and then we should go.
Shall the title stand postponed?
Hon. Senators: Agreed.
Senator Tkachuk: We need a vote to go to clause by clause.
Senator MacDonald: You have to ask to go into clause by clause. You can’t just begin clause by clause. You have to ask permission of the committee to go to clause by clause.
The Chair: But that was what was decided by steering. It was already in the program.
Senator Tkachuk: You still have to pass the motion. We were not all there.
The Chair: Let me ask the clerk.
Do we need a motion for that?
Shaila Anwar, Deputy Principal Clerk, Committees Directorate, Senate of Canada: It is up to the committee on what it wants to do. It is a committee decision on whether or not to proceed.
The Chair: What are the obstacles to starting clause by clause?
Senator MacDonald: Madam Chair, I want to bring to your attention that the broadcasting is not working at the moment.
The Chair: They got bored. We are still in public. We can still discuss.
I would like to know what the reasons are for not starting clause by clause.
Senator Tkachuk: I thought the decision we made last week that we would go through all the amendments, sort them out and then do clause by clause. We haven’t gone through all the amendments. I thought that’s what we decided and that’s what we were doing last week.
All of sudden we have a totally different format. We’re not doing that now. You’re saying let’s take the ones we discussed and let’s do clause by clause. That’s not the way you do it. We come through all of them and then we go through all of them. That’s what we have to do because there are going to be amendments that are the same and we have to sort them out.
The Chair: Thank you.
Senator Woo: I’m hesitant to start only because I’m worried that we end up defeating all the amendments. I just don’t know the mood of the room.
Senator Simons has made a good point. I thought there was some meeting of the minds last week, but I’m sensing from Senator MacDonald’s comments that the intention is to defeat all ISG amendments.
Senator MacDonald: No, no.
Senator Woo: Okay. But the intention is to have all CPC amendments go through, right?
This is best done offline.
We need to start using our time productively. We either start clause by clause on 1 to 19 and see how that goes, or we move ahead with principles and commit to doing proper clause by clause on Thursday from start to finish.
Senator Simons: I think Senator Tkachuk makes a good and fair point. We did say we were going to go through all of this. But I worry that it is a lot to keep track of. On Thursday, you will remember I suggested that we segment it so that we do the thorough analysis of a dozen or 20 amendments. Then if we’re not on the same page, at least we understand each other’s amendments and we do that chunk. Then we move on to the next chunk with the same process.
I think it was very valuable Thursday to say, “Okay, I see what Senator Carignan is saying. That’s a good point.” It was a fruitful discussion, but it doesn’t bear fruit if we don’t act upon it. The longer we put it off, the more we start to forget what we already agreed upon. If we are going to re-debate everything at clause by clause, we’re going to be here for the entire break week, and that is not something I wish to do.
Senator Mitchell: I have done a lot of clause-by-clause processes in the 14 years that I have been here. I have never known there to be a process where we did a pre-clause-by-clause process — ever. So it is a moot point in my mind.
We did, by agreement in good faith in the committee — I’m not a voting member — accept that we would try this other model. I was told, no problem, we could get this done by Monday night. What we found through our experience — now we have real-time experience on Thursday morning — it didn’t work, so we’re looking for another alternative. If you go in a straight line from where we started, I’m saying it will take us 30 hours.
Given that that didn’t work, we have two other options. We can start clause by clause, which is done traditionally — never been an exception — or we can do some offline categorization, which would help. The Conservatives have agreed to neither.
So now we’re going back to a process that will inevitably duplicate everything. We can have the same discussion we had on Thursday morning, which we all agreed was very productive, and just vote. The risk you’ll run is that you will defeat all amendments.
Okay, let’s go; let’s test it.
If we want to do it productively, there are other ways to do that and we’ve outlined two. Well, one way, the timing and an offline process, but we can’t get agreement on that.
Let’s go back to the traditional way. We did it in good faith. It hasn’t worked and all we have done is delay two meetings.
Senator MacDonald: Senator Simons touched on it, and I thought we did have a productive meeting last time we met. If you’re obsessed with a day or two, or obsessing over timelines — but I thought our approach last week was a fruitful one. I felt good about the process and I think most of my colleagues felt good about it. Looking around the table, I think there was a consensus on it. Now we come back and we want to set it a different way.
I’m not saying it progresses as quickly as we think it should or would, but I think it was a process that, on the face of it, worked. I don’t know why we’re so quick to abandon it.
Senator Woo: I move a motion that we start clause by clause and go through items 1 to 19 on the roadmap.
Get it over with, yes or no. Call the question.
Senator Tkachuk: The government argues in a very strange way. One, we have a process, and we have done nothing to cause that process to fall apart. Today, we had another motion, which disturbed the process, and we had a big debate about that.
I’m not sure of what importance there was in the motion, but the motion was based on us going through the same process that we decided on last week — that is what it was — but tying us down to clause by clause on Thursday, which we never disagreed with.
What you’re doing here is saying, “We don’t like the process we agreed to last week; it’s taking us too long, so we want to change the process.” That’s what you’re doing here and expecting us to agree.
We didn’t come into this meeting thinking that we’d be doing clause by clause tonight because that wasn’t on the Order Paper. The only thing was that we would be having a discussion today and continuing wherever we finished on the roadmap until we’re done. But you don’t want to do that. You want to go to clause by clause.
I don’t agree with this bill, but if we do all the right things, we may come up with a bill we can all agree on. Why are we going into a process before we’re assured we’re going into that process?
The Chair: Let’s continue with the discussion of the principles as fast as we can.
Senator Tkachuk: We’ve already wasted an hour and 15 minutes.
The Chair: What happened is that we don’t have the deadline.
Senator Tkachuk: We do. I thought we had an agreement between the two leaders that we would go to clause by clause by Thursday, that we’d be finished it. We have an agreement.
The Chair: We have to finish. The thing is, how?
Senator Tkachuk: What we have is an agreement to do clause by clause on Thursday.
The Chair: Let’s vote on the motion.
Senator Woo: On the basis of that commitment, that we finish on Thursday, I withdraw my motion.
The Chair: Okay.
Senator Tkachuk: One way or the other.
The Chair: We have to move faster, then.
Senator Mockler: I have a comment.
When we were here last week, we went through 1 to 23. We arrive here this evening and we do not have 67 or 80 or 120, but we have 218 amendments. It takes time to go through that process.
The Chair: Let’s go. We have to accelerate if we want to meet the Thursday deadline.
We’re at 24, 25.
Senator Woo: Number 24 is an ISG amendment, ISG-1.15. This is about involving the life-cycle regulators, particularly the two offshore boards, in the process of impact assessment much earlier than when they joined the review panels. It’s consistent with other amendments we have that make better use of the expertise and knowledge of the life-cycle regulators, including, of course, the offshore boards.
We have already had a discussion on this principle, so I don’t need to explain much more.
The Chair: Does somebody else want to talk about that?
Next is number 25. There is a potential conflict with some amendments.
Senator Patterson: This amendment proposes to delete clauses 15(1), 15(2) and 15(3) from the proposed impact assessment act. That is found on page 15.
We’ve heard from the pipeline industry that this section of the bill requires the proponent to provide notice that sets out how some issues raised in the planning stage will be addressed in the assessment stage. They have told us that this section is redundant and does not need to be set out in a separate step. It will be done in the assessment stage anyway.
We have a number of opportunities to streamline this bill in a number of areas, and I think that removing clause 15 entirely is one of the earlier opportunities.
To remind the committee, we’ve heard incredibly strong warnings about the negative effects of Bill C-69 from Pembina pipelines, ATCO, Enbridge and TransCanada. Canada is a small country. These are all of our major pipeline firms. That should concern us all.
Certainly, we are concerned about our nation’s inability to build new pipeline capacity. We recently witnessed the Alberta government take the unprecedented step of mandating a production cut because they ran out of pipeline capacity. This is an emergency. There is a great fear in Western Canada that Bill C-69 will exacerbate our inability to get pipelines built. We are committed to a package that will address those fears and this amendment is part of that package — reducing the issues in the planning stage, when they will be addressed later on in the assessment stage.
Senator Woo: Yes, it conflicts with a number of ISG amendments. I will leave my colleagues to speak to the potential conflicts, but this has to do with the early planning process and the ability of a proponent to begin early planning with a minimalist set of information and then to provide a more detailed report at the end of the process.
This amendment tries to remove the need for the more detailed report. That defeats the purpose of the early planning process in my view. The early planning process and this particular structure of having a low threshold to start the planning and then a more detailed report is strongly supported by the mining industry.
I would not support this amendment.
Senator Mitchell: The early planning process is, in many respects, the heart of the effect of this bill because it streamlines many of the questions and issues that face industry early in these processes. There are other amendments that will address that and bring in life-cycle regulators earlier and so on.
One of the critical elements in this section is the description which provides much more information — which can be given earlier rather than later — to the agency. The agency will use that information to create the tailored guidelines. That’s very good for reducing the amount of effort that a proponent will have to make in an impact assessment.
If the agency doesn’t have that kind of information, I would expect their bias might be to not tailor the guidelines as efficiently. The mining industry likes this a lot. Over 60 per cent of the assessments done are for non-energy-related projects. This allows industry to make sure it has its information in so that the tailored guidelines can be very efficient and reduce the effort required after that step.
While the industry thinks this is extra bureaucratic work, in fact it’s upfront, preparatory work that will reduce the amount of work and speed up the process as it proceeds.
Senator Patterson: I’m wondering if Senators Woo or Mitchell would consider making that a “may” in subclause 15(1), so it would be the proponent that would decide and the proponent’s risk. You pointed out the risk that it may not aid the development of appropriate guidelines. Could that not be left to the discretion of the proponent who will bear the risk of consequences rather than being mandatory? So “must” could be “may” in 15(1)? Is that a possible compromise?
Senator Cordy: No. I don’t like the word “may” because that means absolutely nothing to me. “Must” is important.
The Chair: Thank you.
Amendment 26. Senator Patterson?
Senator Patterson: This amendment proposes to change the language in subclause 16(2) which sets out the factors the agency must consider when deciding whether an impact assessment is required. That’s page 16 of the bill. The amendment simply changes the wording from “. . . the Agency must take into account the following factors” to “. . . the Agency may take into account the following factors.”
This is similar to other changes envisioned in our system of amendments where we introduce greater discretion for the regulators to make decisions based on the most relevant factors at play.
To be clear, if the regulator decides that all factors are relevant, then they will be considered. This amendment does nothing to prevent that. However, we believe the greatly expanded list of factors to be considered at various decision points in the Bill C-69 process will be problematic for two reasons. First, we have heard from provinces and industry that these requirements will prevent legislated timelines from being met, and, second, this will make it easier for litigants to challenge decisions.
Maybe I can quickly quote testimony from our February 6 hearing. Jean-Sebastien Rochon, Senior Counsel, Resource Development Coordination Unit, Department of Justice Canada, testified:
The additional factors for consideration and the new scheme do indeed have or present potential litigants with more opportunities to challenge a decision made under the act.
A government lawyer is saying that.
This is a key issue we’re committed to addressing. We’ve been advised that the specific amendment will reduce the risk of legal challenges of decisions made under subclause 16(2). Requiring the agency to consider each of these factors in every case will make it easier for anti-development groups to litigate when the agency decides that an impact assessment is not required. Under that threshold, it will be easier for such groups to claim that a particular factor was not adequately considered in the agency’s decision.
I’m reminded of former Premier Rachel Notley’s remark to this committee that Bill C-69 will create work for only one industry — the legal profession.
If we are serious about amending this bill so that anti-development groups will not stymie energy projects in Canada and investment will rebound and tens of thousands of struggling Canadian energy workers can get back to work, then this is a key place to start. This is considered an important amendment.
Senator Simons: I don’t speak for the ISG. I personally could accept “may” instead of “must” there, but I wanted to bring to senators’ attention that, in a moment, I will be speaking about the ISG’s scoping amendment which will complement yours. The idea is that it would give to the agency much more power to scope each assessment so that you would choose the factors that were most relevant in each particular case. I will be happy to explain it in a moment, but I think they will dovetail nicely.
Senator Patterson: I look forward to that.
Senator Mitchell: This is not a requirement of a proponent. This is a requirement of the agency. The agency is restricted to work within its timelines, so it will not extend time. But I would argue, if you look at this list, which one of these could the agency choose not to consider? Which would be optional?
I don’t think it would be optional that they consider:
15(2)(b) . . . carrying out of the designated project may cause adverse effects within federal jurisdiction . . . .
I don’t think it would be optional that they consider the impact of the designated project on Indigenous people’s rights.
I don’t think any comments received from the time period specified by the agency from the public would be optional.
I don’t think any relevant assessments referred to as technical — clauses 92, 93, 95 — would be optional.
I don’t think any of this is optional.
Having said that, I also think that “may” opens the door for a court to say, “If it were important enough to be a ‘may,’ you had better describe why you didn’t do it.” It’s much more definitive if the agency says, “We did it. You know why? Because we had to do it and we checked them all off.”
I don’t see anything in this list that would be optional. Why would we want to send a message to the Indigenous people that we think it’s optional that the agency consider Indigenous rights?
Senator Massicotte: I must say, Senator Patterson, I was favourable to your amendment, but when you read it in context, every other paragraph talks about “may.” The paragraph does allow immense flexibility to the agency. If it’s not applicable, they don’t consider it. They consider it based on relevancy.
I don’t think it’s necessary. You have “may” in every other paragraph. That gives them flexibility to say, “We considered it; it’s not relevant.” I think it’s satisfactory as is.
The Chair: Thank you.
Amendment 27. Senator McCallum?
Senator McCallum: My amendment is numbered 1.16:
That Bill C-69 be amended in clause 1, on page 16, by adding the following after line 15 . . .
Do you want me to read it? The bill says:
16(1) After posting a copy of the notice on the Internet site under subsection 15(3), the Agency must decide whether an impact assessment of the designated project is required.
Senator Cordy: Is this 1.16? That’s not what I’m reading here.
Senator McCallum: Page 16, line 15. I want to add (c.1) under (c). I’m going to read (c).
Senator Mitchell: The actual amendment is to subclause (c)?
Senator McCallum: The actual amendment is adding (c.1) after (c). I was just reading the first part. Subclause (c) says:
(c) any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;
What I wanted to put underneath that is (c.1):
“(c.1) the extent to which the issuance of a decision statement under section 65 allowing the proponent of the designated project to carry out the designated project would be consistent with the Government of Canada’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples;”.
The rationale behind this was to ensure that reference to the United Nations Declaration on the Rights of Indigenous Peoples was found in a text in the bill, ensuring it has teeth as opposed to the current situation that finds UNDRIP relegated to the preamble.
By having this assessment incorporated into the three, there will be three sections. It ensures that a consideration of UNDRIP is part of the main decision-making processes of the proposed impact assessment act. I have formatted it in such a way due to my concern that while the government has expressed its commitment to UNDRIP, it is not a text that has been formally incorporated into federal law.
As we all know, Bill C-262 would look achieve this. However, it is still before Parliament. To account for this fact, these amendments have been drafted so that the various actors involved in the impact assessment process must at certain times take into account whether or not the project is in keeping with the Government of Canada’s commitment to implement UNDRIP. This was more appropriate as opposed to the more direct question of whether the project is consistent with UNDRIP.
Finally, the reference within this amendment to the “Decision Statement,” clause 65, is to ensure that any reference to UNDRIP is connected to government action rather than the actions of private individuals. Instead of how this project would be consistent with UNDRIP, the factor is how would granting permission for this project be consistent with UNDRIP, since UNDRIP imposes an obligation, if ratified, on the government and not on the private individuals.
This amendment came from Marcy Cloud of New Brunswick, from the Native Women’s Association, as well as the File Hills Tribal Council in Saskatchewan. They said that Bill C-69 falls short in that it does not explain how free, prior and informed consent will be implemented in this context.
Regardless of whether the UN declaration is cited in Bill C-69 or any environmental legislation, the legal implication of Canada’s endorsement can and will be relied upon by First Nations in the environmental context. This will include using the UN declaration in litigation to interpret Crown consultation obligation under section 35.
In the opinion of the File Hills Qu’Appelle Tribal Council, the federal government has missed an important opportunity to work with First Nations to jointly create and define a legislative framework to implement free, prior and informed consent.
The Chair: Any comments?
Senator Tkachuk: UNDRIP hasn’t passed yet. So how are we —
The Chair: Do you have a comment?
Senator Tkachuk: I just said UNDRIP, the bill hasn’t passed yet. I don’t know how we can obligate in another bill for a bill that hasn’t yet been passed by the Government of Canada. The legislation hasn’t been passed.
That’s my view, and I’ll vote against it.
Senator Patterson: Senator McCallum, thank you for explaining your rationale. Is the object here to ensure that free, prior and informed consent is built into the body of the bill? Is that the main purpose? That’s, of course, an important article in UNDRIP. Is this a way of including the concept of free, prior and informed consent in the body of Bill C-69?
Senator McCallum: First Nations have always had the right to consent. If they’re not allowed the ability to have free, prior and informed consent, then there’s a veto by people against the consent issue with First Nations.
Senator Cordy: As a point of order, I know that the bill didn’t pass in the Senate, but Canada did support UNDRIP at the United Nations. I think that’s important to say. Even though the bill didn’t pass in the Senate, it has been supported by Canada at the UN.
Senator McCallum: I just wanted to let you know that domestic courts apply the declaration. When courts look at land rights decisions related to Indigenous people, they will look to other decisions of other countries. Indigenous peoples have rights to their land.
So in the last 10 years, national courts have been instrumental in the application of declaration rights and regional and international treaties as they relate to Indigenous peoples, in particular with respect to ownership of land, territories and natural resources. They have stated and supported First Nations in this, and the law of the country supported it.
The Chair: Okay. Thank you.
Number 28, 1.16c, pages 16 and 17 of the bill. Senator Patterson?
Senator Patterson: This amendment proposes to amend clause 17. We wish, in this proposed amendment, to depoliticize the review process by allowing a proponent to request a ministerial opinion as to whether a given project is inconsistent with government policy.
It strikes me as fair for proponents to receive notice early on in the process if the government is not interested in the results of a technical assessment because they oppose a project in principle.
I’d like to remind colleagues that, as we’ve heard, impact assessments are extremely expensive. TransCanada told us they spent approximately $1 billion on the Energy East project. Late-stage changes to the review process caused the termination of that project after four years of work and significant expenditures.
This type of government action has scared investment away from Canada and contributed to tens of thousands of energy workers losing their jobs.
Clause 17, as presently worded, allows the minister to tell a proponent before an assessment has even been performed that the project’s environmental effects are unacceptable. However, even if the minister does not exercise his or her subclause 17(1) power, the proponent would still not be certain that their project is in line with government policy. All it would mean is that the government has not killed their project yet.
Our proposed amendment allows proponents to request a clear answer from three key ministers — the Minister of Finance, the Minister of Environment and Climate Change and the Minister of Natural Resources — as to whether the project is consistent with government policy or not.
Of course, even if the ministers say yes, a project could still be rejected if the agency or review panel finds unacceptable flaws during the technical review. But what we’re seeking to address is uncertainty caused by high-level government interference in pipeline projects.
Recent examples of this, such as the Northern Gateway cancellation, have clearly, in our view, been motivated by politics, not technical or scientific findings. If a new major pipeline is ever going to be built in Canada, proponents will need certainty that their project can move forward if it passes a stringent impact assessment. Cancelling a project after years of work and hundreds of millions of dollars that have been spent and independent regulators have given the green light is simply not acceptable.
You have the wording here, Madam Chair:
(ii) by replacing lines 30 to 32 with the following:
“17 (1) The proponent of a designated project may request that the Minister, the Minister of Finance and the Minister of Natural Resources provide a written notice if, in the opinion of all three Ministers, the project is inconsistent with Government of Canada policy or if”; and
(b) on page 17,
(i) by replacing line 1 with the following:
“a federal authority advises the Minister”,
(ii) by replacing lines 5 to 9 with the following:
“part. The”,
(iii) by replacing line 12 with the following:
“opinion of the three Ministers.
(1.1) the Ministers’ written notice under subsection (1) must be provided to the proponent before the Agency provides a notice of commencement of the impact assessment of the designated project under subsection 18(1). For greater certainty, no impact assessment is terminated or suspended on the sole basis that a written notice is provided under this section.”, and
(iv) by adding the following after line 14:
“(3) A proponent’s request under subsection (1) must be made at least 30 days before the day on which the Agency is required to provide the proponent of a designated project with a notice of the commencement of the impact assessment of the designated project under subsection 18(1).”.
In essence, Madam Chair, this is to save proponents a lot of time and money if the government is going to nix a project because of government policy.
Senator Woo: Before the discussion, may I suggest that I table my amendments because they apply to exactly the same area ? It’s up to the committee.
The Chair: Okay. Which one?
Senator Woo: Number 29 refers to the same clause. It’s the next page. That’s why it wasn’t lumped together, but it is exactly the same, clause 17 issue.
The Chair: What is the number?
Senator Woo: This is a table drop, 1.17a, version 3.
Senator LaBoucane-Benson: Number 29.
Senator Woo: ISG 1.17a.
It’s already there. Thank you.
The Chair: It says version 3 at the top. It’s ISG —
Senator Woo: 1.17a, version 3.
The Chair: With today’s date.
Senator Woo: What we’re trying to do with this amendment is to address some of the concerns Senator Patterson has raised but not to go to the extent that his amendment proposes. In my view, his amendment is unrealistic because it demands of the government to establish policy very clearly upfront and does not allow the flexibility for different governments to come up with different policies.
The idea that this decision on early warnings should be shopped to three different ministers I think creates more problems rather than greater certainty. Whenever there’s a need for coordination among different departments, you can expect that there are more delays rather than an expedited solution.
The principle of the government providing an early warning is a good one. Many proponents in fact appreciate that because it does the opposite of what has been alleged, which is it allows proponents to not proceed with the project should they choose because they have received information from the government that the government will not exercise its power to review the project.
The amendment that we propose takes out a number of lines in clause 17(1) where, in essence, we delete the references to the minister’s opinions and we focus on the agency providing the written notice of why the minister will not exercise his or her power under this act or any other act.
We are getting rid of the more ambiguous notion that a minister’s opinion would be sufficient for the early warning to be given. I don’t know that I need to read the amendment as such, but we are deleting lines 5 to 7 and just replacing a small part of it. We’re deleting the last line in clause 17(1) which talks again about the minister’s opinion. I have a black-line here.
Senator Simons: I agree with both Senator Patterson and Senator Woo that this is what they’ve called a yellow flag. The proponents have asked for this, but I’m mindful of what Senator Woo says. If you ask three different ministers to come up with an opinion, I don’t know if they could choose a restaurant.
In keeping with the philosophy that we want to depoliticize, I think both of my colleagues wish to get to a similar spot and I think we can get there more expeditiously.
The Chair: When we arrive to these points where amendments seem to try to address the same problem, could I suggest that Senator Patterson and Senator Woo get together on these amendments? I’m making notes on that.
Do you agree, Senator Patterson?
Senator Patterson: Well, I have the ISG version 3 in French.
The Chair: In French? The reverse, the other side, is in English.
Senator Patterson: I don’t have any English on the back side.
It was handed out? Okay. Thank you.
I’d be willing to talk to Senator Woo about this, for sure. I would appreciate if he would read the lines 5 to 7 that he’s deleting.
Wait a minute, I have it now. Thank you very much.
What’s the end result of your amendment?
Senator Woo: The end result is to make it less arbitrary. Take out the lines referring to how the minister’s opinion can be sufficient grounds for the government to not exercise its powers. We also have the agency providing the explanations with a written notice rather than the ministers, so that also is in keeping with our general theme of giving more authority and power to the independent impact assessment agency.
Senator Wetston may want to jump in on this.
Senator Wetston: I want to say one thing about this provision. I can see the merit in having early notice regarding whether or not a proponent is going to spend hundreds of millions of dollars on a project. In my experience, it’s completely different from this.
The reason I say that is very simple. The challenge that I have in looking at this is that it’s normally not a minister who makes these decisions. It’s usually an independent agency who has the responsibility to work each and every day as a regulator with the proponents that go before that body. The kinds of conversations that occur are regular, ongoing and very specific to a project so that there is always an early indication of whether or not a project will or will not meet the requirements and what might be acceptable to the regulator based on regulatory policy.
When you introduce the minister into this process, you have a very different process and that, I think, is the challenge here. I think it’s very difficult to define a process where a government will then decide, based on government policy and putting it in legislation, to provide that kind of a notice to a proponent. When are they going to do that? How are they going to do that? What will be the basis upon which they can do that?
I can understand the rationale here, which is why they included adverse environmental effects as something you can focus on. I will say this kind of provision, from my experience, is rather unusual in the context of a regulatory body grounded, dealing with the technical issues on proponents and what they’re providing, whether it’s pipelines or rate making or some other important aspect of regulation.
I think there’s a challenge in defining how you would constrain government by advising that this does not meet with government policy when, frankly, it’s an ongoing debate. It sounds to me like a proponent just doesn’t have a sufficient understanding of what this government’s overall policy framework is or looks like.
There have been issues in the past, and I understand that. I think if you’re going to propose an amendment to this, you ought to be careful what you wish for here.
That would be my view of how this might work. In practice, it’s a very challenging provision and it’s not just requesting an opinion. This is cutting things off very early, and I don’t think that’s a good idea. It’s inconsistent with the framework of the bill.
I’m a little uncomfortable with how this is being put.
Senator Massicotte: I have two things. I have some technical comments with Senator Patterson’s amendment to 17(1). You took out the words, “If, before the Agency provides . . .,” which means that any point in time, even if they received the proponent’s answer, they can ask it.
Senator Wetston or Senator Woo, the amendment as proposed, are you saying that if a federal authority hears information which prejudices the project from proceeding, it will then formally advise the proponent? Is that the bottom line? In other words, not the minister but the agency. If they say there’s a major problem, they must disclose that to the proponent.
Senator Woo: You would think the proponent would want that to happen.
Senator Massicotte: I’m sure they would.
Senator Wetston: If I may, there are a lot of permits issued in these matters by a number of bodies. If an authority is not prepared to issue the permit, it would be useful for a proponent to know that earlier than later.
The Chair: Thank you.
Senator McCoy, do you want to add another argument?
Senator McCoy: I do. I appreciate the practical experience that Senator Wetston had many years ago. I’m mindful of this — and I thought we should just remind ourselves — that the expert panel on the modernization of the NEB, which has had even more recent experience than any of us, pointed out that the flaw in the process was, in fact, mixing policy debates with regulatory aspects. This has been a burden that the regulator was not designed to deal with.
I think everybody is trying to find a way that you don’t get, after years of study, expert testimony and expert regulators saying that it’s a go with 257 conditions, a politician on a rainy day in November saying, “No, not in a forest. Thank you very much, but that’s not the policy of the government.”
What we need to find is a way — and I don’t know that you hit upon it, either one of you, by removing the minister. It doesn’t necessarily stop a minister from doing just that. I don’t know whether the prior request for an opinion with three ministers does it precisely.
I prefer nudging the ministers to come up with that declaration ahead of time so that if there is some kind of underlying or unspoken policy on climate change, global warming, forests, kermode bears, or whatever you are talking about, that it be known and known in advance.
Senator Patterson: I think this is an amendment where it seems there may be an agreement on a need to improve the bill. It’s just a question of how.
I’m open to the idea of reducing ministerial powers anywhere in the bill. It may be just what Senator Woo is suggesting. I’d like to think on it further.
I think this is one where we can say there is, in principle, agreement on a change.
The Chair: I am taking note of that. So, yes, there is an agreement in principle on this. Perfect.
Number 30.
Senator Woo: That is the amendment I will be moving. It should be fairly straightforward. It’s based on the request from the B.C. government to ensure that timelines in the early planning phase can be harmonized in order to abide by the principle of one project, one review.
You’ll see from the amendment that the minister may establish a longer time limit or a shorter time limit on the request of a jurisdiction, particularly when there’s a joint review or substitution process, and only under those conditions.
The Chair: Does anyone wish to comment? Okay.
Number 31.
Senator Patterson: This amendment proposes to add new language to subclause 18(a). This provision deals with “Notice of commencement.”
Paragraph 18(1)(a) as drafted provides that the agency must provide the proponent with a notice of the commencement of the impact assessment of the project.
Do I understand we’re on number 31? That’s where I am.
Some Hon. Senators: No.
Senator Patterson: I was referring to paragraph 18(1)(a) of the bill.
But, yes, it’s amendment CPC-1.17a. Our amendment would require the agency to provide the proponent with a notice of the commencement of the impact assessment of the project that sets out:
(i) the scope of the designated project that the Agency has determined will be subject to impact assessment,
(ii) the factors under subsection 22(1) that will be considered in the impact assessment of the designated project, as well as the scope of those factors, including any modification of those factors under subsection 22(2),
(iii) any written notice provided under subsection 17(1) if requested by the proponent, and,
(iv) the information or studies that the Agency considers necessary for it to conduct the impact assessment; and”.
For clarity, part (iii) of this amendment assumes that our subclause 17(1) amendment, CPC-1.16c passes.
One of the central changes to the Bill C-69 process compared to CEAA 2012 is the inclusion of the early planning phase. This amendment, it’s suggested, would make better use of the early planning phase. It would tailor the notice of commencement based largely on what was learned during early planning. This would provide enhanced certainty to proponents by establishing the goalposts at the beginning of the process.
Recall that when the factors to be assessed for Energy East were changed more than four years into the process, that caused the cancellation of the project. Further, we want to empower the agency to scope out factors that would better be assessed in a regional or strategic assessment.
This committee has heard from many witnesses that cumulative effects, for example, are better studied in strategic or regional assessments. For example, in Vancouver, we heard from Dr. Jackie Lerner, a PhD in impact assessment, that assessing cumulative effects in strategic or regional assessments is “much more effective. It is very challenging for project proponents to do this type of assessment on a project-by project basis . . . .” So I won’t read the amendment.
The Chair: That’s okay. Because this is very close to number 32, ISG, can you please, Senator Woo —
Senator Simons?
Senator Simons: I want to back up. Our 17 —
The Chair: Can I say that at 8:50 there is a vote for the adjournment of the chamber.
Senator Simons: We have a package of alternate amendments. This is one of those times when clause by clause gets awkward because of all these working parts. These are amendments to 18(1), 18(1.1), 18(2), 19(3), 22(1) and 22(2). They all have to go together. But the idea is to give the agency scoping powers so it can figure out which factors are most relevant, and time-setting powers. I don’t know if I should through them all.
Senator Patterson: Can you give us the numbers of those ISG amendments, please?
Senator Simons: Yes, 1.17a —
Senator Patterson: That’s number 31?
The Chair: Number 32.
Senator Simons: Yes. They are 1.17a, 1.17b, 1.17c, 1.18c, 1.18d, and then Pau takes over at 1.21a and I come back to 1.21.
The Chair: We are talking about amendment number 32 and numbers 35, 36, 37, 38, 40 and 42.
Senator Simons: Exactly.
The way the bill is structured, you have to back and forth between 18 and 22 to have it make sense. I can read them out if that is helpful, because I have a nice black-line. It was made for me by somebody else.
So for 1.17a, the major amendment would come in subclause 18(1)(a) to change it to say a notice of the commencement of the impact assessment of the project that sets out the information “or studies that the agency” — this is a change — “requires from the proponent and that it considers necessary for it to the impact assessment.” We’re putting the emphasis back on the agency and not on the minister.
And 18(1.1) would provide that the agency must take into account the factors set out in subclause 22(1) in determining what information or which studies it considers necessary for the conduct of the impact assessment.
Then we get to 18(1.2). This is where we will go back and forth between 18 and 22, if you will forgive me. So 18(1.2) would say:
“(1.2) The scope of the factors referred to in paragraphs 22(1)(a) to (f), (h) to (l), (s) and (t) that are to be taken into account under subsection (1.1), including the extent of their relevance to the impact assessment, is determined by the Agency and is set out in the tailored guidelines referred to in subsection (1).”.
And that is the thing I just read.
To put that into English, we all know that the list of factors in clause 22 has been a stumbling block for a lot of people. There has been concern that having to meet the test of all of those factors would open the project to litigation risk and create proponent uncertainty. So the idea is to give to the agency the power to scope those factors so that people are not going to be surprised four years down the road that there is a factor no one told them about, and all of those factors will be clearly understood to the degree that they apply. Does gender-based analysis pertain to a plan to drill one exploratory well in the same way it does to build a linear project requiring a giant work camp? This will allow the agency to properly exercise its jurisdiction and authority to make those decisions.
In 1.18c, which amends subclause 18(6), this is more about suspending the time limit and giving the power back to the agency. That amended subclause would read:
(6) The Agency may suspend the time limit within which it must provide the notice of the commencement of the impact assessment 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 the reasons for doing so.
This again depoliticizes, eliminates an opportunity for ministerial intervention that could monkey with the timeline and assigns to the agency that suspension power.
Related to that notice posting is subclause 18(7), again a small change for consistency:
(7) 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.”.
The idea is that it’s the agency not the minister responsible for that time management.
Finally, connected to this is ISG-1.18d. Subclause 19(3) would read:
(3) If the Agency extents the time limit, it may require the proponent to provide it with any additional information or studies that the Agency considers necessary for the conduct of the impact assessment.
I think this is where I’m supposed to pass the baton to Senator Woo for clause 22, the scope of factors related to clauses 95, 92 and 93.
That was a lot to absorb.
The Chair: ISG-1.20, version 2.
Senator Woo: This is on clause 22 of the bill. It constrains the application of the climate change factor by using the following words:
. . . climate change as described in any relevant assessment referred to in section 95 that has been completed before the notice of commencement was provided to the proponent of the designated project under subsection 18(1);
This is a way of making sure that the climate change factor is applied in a consistent way through the strategic assessment and will only be applied if, in fact, that assessment has been completed before the notice of commencement has been given to the project. It is the application of strategic assessment to a specific factor that has been quite controversial.
Senator Simons: Then we get to the pièce de résistance , our favourite clause, clause 22, the scope of factors. This is the rewording, and this you need to read and then go back to all the other things so they flow.
When we get to paragraph 22(1)(t), the amendment — ISG-1.21 — refers to any other matter relevant to the impact assessment that “the Agency requires to be” taken into account. So we remove the words about the minister.
This is the key subclause, 22(2):
“(2) The scope of the factors determined by the Agency under subsection 18(1.2) applies when those factors are taken into account under subsection (1).”.
To translate this into English — because I didn’t go to law school; I have an English degree — this would allow the regulator to tailor the assessment factors for every project that comes forward to make them germane and particular to that project. In that way, if a factor simply doesn’t apply, it can be scoped out, or if its application is de minimis, it can be scoped down. This would allow the agency — taking all of these amendments together would allow us to be free of the fear that a project would be bogged down or blindsided by factors not pertinent to what the project does.
We believe that if you take all of these amendments as a package, it answers one of the key concerns that everyone has raised, which is the following: What do we do with that long list of factors to make it relevant to the projects in front of a regulator at any particular time?
The Chair: Before we go into the discussion of Senator Simons amendments, I wonder if Senator Patterson’s amendment has the same objective. I’m talking about 33, 34, 39, 41.
Senator Patterson? I’m sorry, but now I am becoming an expert, so I am following.
Senator Patterson: I’m sorry, but I just cannot answer off the top of my head. But I did tell Senator Simons that anytime ministerial powers are reduced, it is, in principle, the right thing to do.
I see here that the agency could make the decision. I think that will be less subject to political uncertainty. So in principle —
The Chair: I’m going to allow the conversation on the amendments we just discussed, but then you have to come with the ones that you are supposed to be moving — 41.
Senator Woo: One more should be included in the package. Number 55 is also the same suite. Number 55 is ISG-1.21a, version 2, which just clarifies that if there are any strategic regional assessments that bear on the impact assessment of a designated project, they have to be completed; they can’t be just relevant. So we delete the word “relevant” and replace it with the word “completed.” Before commencement, of course, yes.
Senator Simons: The benefit of this suite is that instead of going through the 22 factors saying, “We don’t like (f)” and cherry-picking the factors — this allows us to leave the list intact but give unto the agency the power to decide with each project which factors should be on the table.
Senator Massicotte: I would add my voice to all three of you. I think the proposed amendments are very good. They respond very much to the comments we heard from industry. I support them fully.
I have an outstanding question, though, because we’re on page 18, subclause (4), “Extension of time by Governor-in-Council.” We heard a lot of comments from industry that a lot of people thought that was too open-ended; they can extend it many times without limit and, in each case, they don’t need to explain the extension as, say, compared to the minister. Can you comment on why that is satisfactory given all the comments we heard and given all the looseness about the paragraph as currently worded?
Senator Simons: I think this is still coming up, isn’t it? I think those are on Senator Woo’s docket.
Senator Massicotte: I’ll wait.
Senator Tkachuk: I’m not sure what this solves. The problem is the factors themselves. They are not very clear. The problem industry and I think the provinces have with the factors is that they are not clearly defined. When you have the question of the gender issue — and I will use that because it is the one that’s so talked about, but all the others sort of fit.
And sustainability, what does that mean? We’re saying, “Well, instead of having the minister decide what it means, we will have the agency decide.” That doesn’t solve any problems; it just puts a different decision maker on a whole bunch of issues that no one understands. I don’t know why we would go there.
The job is that we should clarify what all these things mean so that the industry, the provinces and everyone who has a problem with the bill, including me, understand exactly what businesses have to go through to get a project okayed. Who does it? One is political and one is not, but it’s still the same problem, and that problem has not been solved by this supposed suite of amendments.
The Chair: I remember that we heard what sustainability and gender analysis are. We heard that for the last five or 10 years companies are doing it. We heard from consulting engineering firms. They say they have done it.
Senator Tkachuk: They’re not doing it as a requirement of law; they’re doing it because it’s something that’s part of their package. So when they propose it, they know exactly what they’re talking about. When the government proposes it, it’s different, because now they are responding to a piece that’s a piece of legislation. Therefore, they need certainty.
Companies do all kinds of things. They talk about sustainability, the environment and all the things that are important to them, but they’re not responding to law. They’re responding to the fact that they are good citizens and have taken a bunch of issues into account that other people hadn’t thought of. That’s all we’re doing here, but we’re not doing anything.
The Chair: We have the officials here, so they can try to answer that question.
Senator Tkachuk: How come they didn’t have to answer their question on the amendment?
The Chair: Do you want to have clarification?
Senator Tkachuk: Are they debating with me, or are they talking about the amendment?
The Chair: They can bring more information so it’s clear.
Senator Tkachuk: If they’re debating with me, that’s a separate issue, but if they’re talking about the amendment, I’d like to hear about the amendment.
Christine Loth-Bown, Vice President, External Relations and Strategic Policy, Canadian Environmental Assessment Agency: As officials here, we only lay out the facts of what’s in the legislation. We don’t provide opinions on any of the amendments.
With respect to the factors —
Senator Tkachuk: Not opinion or fact?
Ms. Loth-Bown: As an official, I’m only allowed to lay out facts.
Senator Tkachuk: You didn’t have to say that. We understand that.
The Chair: The floor is with the official from the government.
Sorry for the interruption. Can you continue, please?
Ms. Loth-Bown: With respect to the scope of factors, the proposed amendment is shifting the authority for the scope of factors from the minister to the agency, as was indicated.
As also previously indicated, it is correct that these factors are already looked at in impact assessments and have been for some years.
Senator Richards: Senator Tkachuk relayed my fears about this. I think it’s going to open all kinds of litigation. It will be unending. People will think they are getting a raw deal no matter how these amendments are processed or pasteurized. I can’t see it doing any good at all for the industry it is proposing to support.
The Chair: How are you getting to that conclusion?
Senator Richards: If one group of people get a gender-based analysis done by the agency and another group of people don’t, some people are going to be very upset over that. They are not going to go gently into that good night. They are going to argue it, and it will end up in court.
That’s just one possibility in an array of possibilities that can happen with these umbrellas of amendments.
I don’t think there’s any real solution here to this with this group of amendments.
Senator LaBoucane-Benson: In speaking at length with proponents about things like gender-based analysis, many of the experienced proponents we talked to said they already do gender-based analysis, but their fear is they want to know the scope of what that is. In the pre-planning phase, they want to know what is expected of them so they can cross their t's and dot their i's.
I think everyone at this table is on the same page. In that pre-planning, there had better be a checklist that outlines something measurable so that at the end of the process we can measure whether that was accomplished.
I’m not sure that’s law. I think it’s regulation. I’m kind of a newbie at this, but I do think the law will set out what the agency must provide in the scope of what is considered and make it measurable so that everyone knows whether it is done.
Senator Richards: Excuse me, yes, but it’s not just gender-based analysis. It’s environmental studies and climate change proposals. All of it can be open to litigation if people feel their project is being treated unfairly and other projects aren’t. I can’t see that these amendments solve that.
The Chair: You expressed that. That’s okay and we heard you. Now we have to hear other people.
Senator Richards: Thank you.
Senator Simons: I think Senator Richards raises a valid point, but I think the purpose of this is that by putting it in law, the agency has the power to set the scope that gives the framework some legal robustness. Also, much later on we’re going to get to the discussion of a privative clause, which would then privilege the agency’s decision making. These are the belts and suspenders to ward off Senator Richards’ questions, which I think are fair ones. The problem is that this all has to work together to get to that certainty.
Senator McCoy: I had a point for clarification and also a comment on ISG-1.18a. I think that might be number 37 on the roadmap.
I heard you say that you were removing the minister.
Was it intentional to keep the minister in this one place where the minister may extend the time limit? That’s the point of clarification that I’m raising.
Senator Patterson: That was Senator Massicotte’s point.
Senator Massicotte: I was told the answer is coming.
Senator McCoy: I can live with an answer later if the senator will have a moment later.
Let me just make a comment. What I think I’m hearing is there might be some discussion between the CPC and the ISG as to some of the wording along here, and that the intent on both sides is to ensure that the agency has control and can actually scope and make the scope stick. That’s what I think we all want.
Can I finish this point? That’s ISG-1.21. Where does that show up? Is it number 56?
The Chair: We’re not there yet. We’re at 55. That is as far as we have gone.
Senator McCoy: But I know that Senator Simons read this out, so she must have included it.
Senator Simons: I understand now. There are a lot of pieces of paper here.
I think this clause is about substitution, so the minister has to maintain that right, the power to decide on the —
Senator Woo: I can help. It appears that number 37, ISG-1.18a, is exactly the same as number 30, ISG-1.17, version two. I’m not sure what happened here. So number 30, which I spoke to earlier, is apparently the same as number 37. It’s about the minister being able to vary the timeline if a jurisdiction makes that request so that the early planning process of the two jurisdictions can be aligned, especially in the substitution agreement, and that has to be a decision of the minister.
Senator McCoy: That is not what your amendment says. Your amendment, first of all, says that this agency can do it.
Senator Woo: I’m reading that the minister may, on request of any jurisdiction referred to in paragraph (6) and so on —
Senator McCoy: You might want to look at this 1.18a and double-check the wording.
Senator Woo: Maybe 1.18a was an earlier version that has been superseded.
Senator McCoy: On 1.21, I want to request all of you to take another look at the wording that you’re suggesting. I think what you’re trying to do is nail down the agency’s ability to say, “This is the scope. It’s in your notice of commencement. There will be no changes to it. There will be no scope creep.” We’ve been arguing for this for 20 years, so this is welcome all around.
The wording, however, in proposed subclause (2), is that:
“(2) The scope of the factors determined by the agency under subsection 18(1.2) applies when those factors are taken into account under subsection 1.”.
That struck me as tautological when I first read it. I went around in circles trying to figure out what this meant. I immediately started to imagine what I could do with this in a courtroom, and then I stopped having fun.
I think maybe you could take a look at the wording, tighten it up and make it plain English.
The Chair: Senator Woo, if number 30 is the same as number 37, you will withdraw one of them and tell us which one.
Senator Woo: Yes.
The Chair: Senator Mitchell, did you have something to say?
Senator Mitchell: I want to emphasize the importance of the scoping procedure under GBA. What’s required will be defined out of the pre-planning process and scoped accordingly.
The alternative, which is being suggested by Senator Tkachuk, seems to be we need to have it broadly defined. There is a paper that gives guidelines on it, but if you go to broad definition or, as some industry actors suggested, to government policy for that — take this out of the process and put it in government policy — you will end up with a government policy that has a generic application; so all projects need to have 10 per cent women employees. That may not apply at all to all projects, so this allows it to be scoped specifically to each project.
If you want to debate whether there is a reason to do GBA, it’s being done spontaneously by many industrial proponents already. But also, we had very compelling witness testimony about the disproportionate effects that these kinds of projects can have on women, for example. What was very compelling to me was the witness testimony that said with tremendously increased demand in a small community, food prices go up. Single mothers don’t have a flexible income to start paying twice as much for milk. Housing prices go up and housing becomes in greater shortage. Single mothers don’t have access to rising housing prices, and that is a legitimate consideration.
The next point is that if you think that we wouldn’t have, in any way, shape or form, climate change considered at some level — it has been defined in a more limited fashion by ISG’s amendment — I ask you this rhetorical question: What kind of credibility would an impact assessment in 2019 have if it didn’t consider climate change in some way at some level?
That brings me to my final point, which is the other side of the coin being advocated by Senator Richards. He is concerned about the likelihood of the enhanced risk of litigation. The fact of the matter is that if you don’t consider these types of issues now, which were in fact outlined in the CAPP study — and they neglected to mention in here — you have to have a more modern, broader list of elements or there will be no public trust. Can you imagine? That will lead to a greater likelihood of litigation. People don’t trust this process because it didn’t even look at climate change. They don’t trust this process because it didn’t look at one of the most fundamental, basic social issues, gender-based analysis and gender issues. People will not trust it.
So we get it done. It’s scoped down. It may not even have to be done by the proponent because the IAA may say that we can do this or that it has been done in this area already. This is the way to go.
Senator Richards: Senator, I am not talking about not doing these things. I’m saying that doing these things will not matter. Litigation will happen anyway and it will happen continually. Somebody is always going to feel left out of the package. That is what I’m saying. There’s nothing in these amendments to convince me otherwise.
I’m not saying these things shouldn’t be done. I’m saying they are not the panacea and they are not going to solve things. That’s what I was trying to say.
Senator Stewart Olsen: Just a point of clarification, Senator Mitchell, please. I’m hearing two things, or I don’t understand — which could very well be because I haven’t been through this all with you before.
We’re going to give the agency the powers to scope out the criteria that should be addressed or should be used. I don’t understand where you’re saying you have to have this and it would be unthinkable if you don’t have it. Are you going to set out what they need to have in there and not give the agency the leeway to adjust that? I’m not sure what you’re saying about that issue.
Senator Mitchell: That is a very good question. Thanks for giving me the chance to further clarify.
The way that this amendment and this provision is established is that these 20 elements must be considered. But they don’t have to be considered by the proponent. Some of them can be considered by the impact assessment agency. That’s part of the tailoring of the guidelines. Now we would have greater certainty or greater confidence in that decision-making process because these amendments were delegated to the agency and it wouldn’t be a ministerial decision, which I understand is giving a lot of people comfort.
The agency will look at those 20 elements and say, “We have done five pipelines through this area; as a result, we don’t need to rehash certain environmental issues because they’ve been done, and we will not require that of the proponent.” They will be able to say that because they have reviewed the studies, it has been done. And if it ever goes to court, they can say it has been done.
It doesn’t say that it has to be done by the proponent. In fact, the momentum behind these kinds of provisions and amendments is to streamline this, to make it efficient, not to do extra work on the proponent’s part and to tailor that down. That’s the core element of the pre-planning process
Senator Woo: I can confirm that we have two redundant amendments, 37 and 38.
The Chair: Which one are you going to withdraw?
Senator Woo: Items 37 and 38.
The Chair: Senator Patterson, number 39.
Senator Patterson: This is CPC-1.18a. It deals with the same clause we’ve been discussing.
This amendment proposes to add new language to subclause 18(5) on page 18 of the bill. It’s about posting a notice on the Internet when the minister or the Governor-in-Council grants the agency up to a three-month extension to post the notice of commencement for an impact assessment. It current reads:
(5) The Agency must post on the Internet site a notice of any extension granted under subsection (3), including the Minister’s reasons for granting that extension, and a notice of any extension granted under subsection (4).
For clarity, the current wording means that their Internet posting has to provide reasons for the extension under subclause 18(3) when granted by the minister. However, it does not require that the reasons be posted when the Governor-in-Council restarts the clock on that 90-day extension under subclause 18(4).
Our amendment seeks to address that inconsistency by amending 18(5) to read:
(5) The Agency must post on the Internet site a notice of any extension granted under subsection (3), including the Minister’s reasons for granting that extension and a notice of any extension granted under subsection (4) —
— this is the new wording —
— including any reasons provided by the Governor-in-Council for granting that extension.”.
Subclause 18(4) empowers the Governor-in-Council to restart the 90-day extension provided for under subclause 18(3) an infinite number of times. There’s no limit in subclause 18(4). In fact, it specifically says “any number of times.”
That is a significant power and a significant potential source of delay. It doesn’t seem appropriate that the Governor-in-Council could use this power without explaining their decision to the public or the proponent. The government has said that one of the central objectives of Bill C-69 is to increase transparency of the impact assessment process, so I submit this amendment is aligned fully with that objective.
Senator Woo: That is very good amendment and it’s exactly the reason why ISG has withdrawn number 38.
The Chair: Perfect. Excellent cooperation. Good.
Senator Patterson: Hallelujah.
Senator Massicotte: Senator Patterson, relative to subclause (4), you say that it will lead to disclose any reasons given by the Governor-in-Council. Obviously, the Governor-in-Council will not give an explanation and therefore they will satisfy their obligations by just posting the delay. It won’t get you where you want to go. Like the ministers, they should come up with the reasons for the delay, not say any explanation given.
Senator Patterson: Including reasons.
Senator Massicotte: Yes, in other words, they should always include the reasons like they do with the ministers. With your words, they will never give the reasons.
The Chair: Thank you.
Senator Patterson can we move on to number 41?
Senator McCoy: A point of clarification, if I may. I might be a bit lost, but we’re talking about the Governor-in-Council, the cabinet extension, and I thought the ISG had removed the cabinet from giving any extensions in this suite here.
You might want to double-check that. I don’t think we need to pause any longer. Perhaps you could make a note and see.
Senator Mitchell: Actually, the ISG has “the reasons.” It’s actually a little bit better. You could withdraw yours and use the ISG one and we’d be there.
Sorry to disappoint you.
The Chair: Senator Patterson, number 41.
Senator Patterson: This is 1.18b. Number 41 proposes to add a new clause 18.1 at the end of clause 18. The new clause would read:
“18.1 The agency may proceed to issue a notice under section 18 despite —
Senator Cordy: I’m lost.
Senator Patterson: It’s on page 18 of the bill, and the proposal is to add subclause 18.1 at the end of clause 18 after “is posted on the Internet site.”
Senator LaBoucane-Benson: We already have an 18.1, or is this an amendment to the existing 18.1?
Senator Patterson: It’s a new subclause at the end, an addition. It’s a new 18.1. If that’s the wrong numbering, maybe I can just explain what the amendment proposes to do. Maybe it will have to be 18(8).
I’ll quickly explain what it’s about. The new subclause would read:
“18.1 The Agency may proceed to issue a notice under section 18 despite
(a) a failure by a person to provide comments within the period specified under section 11 or a request from such person or persons to extend the specified period; or
(b) a failure by a jurisdiction or an Indigenous group to respond to the Agency’s offer to consult under section 12, or a request from such a party for certain consultation to be completed under section 12 prior to the issuance of a notice of commencement under subsection 18(1).”.
The intent here is to provide clarity that a notice of commencement can be issued if members of the public, other jurisdictions or Indigenous bodies do not meet their deadline for comments specified by the agency.
Bill C-69 proposes to shorten legislated timelines. We’ve heard in this committee that legislated timelines in CEAA 2012 are seldom met. Even if the shorter timelines under Bill C-69 are to be met, despite the increased number of factors that must be considered, then all parties will have to adhere to their timelines. That includes the agency or review panel, the minister, the proponent and any interested third parties.
We’re trying to amend the bill to enforce greater adherence to its timelines and prevent extensions or delays that stop the clock. This amendment is part of that effort.
The Chair: Thank you.
With that, we have to go to vote. I don’t think there will be enough time to come back, so with your permission, the meeting is adjourned.
(The committee adjourned.)