THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Thursday, May 16, 2019
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, met this day at 8 a.m. to give clause-by-clause consideration to the bill.
Senator Rosa Galvez (Chair) in the chair.
[English]
The Chair: Good morning and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Rosa Galvez. I am a senator from Quebec, and I am the chair of this committee.
[Translation]
I would ask the senators around the table to introduce themselves.
[English]
Senator MacDonald: Michael MacDonald, Cape Breton, Nova Scotia.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Mitchell: Grant Mitchell, Alberta, Treaty 6 territory.
Senator Cordy: Jane Cordy, Nova Scotia.
Senator Richards: David Richards, New Brunswick.
Senator Woo: Yuen Pau Woo, British Columbia.
Senator McCoy: Elaine McCoy, Alberta, Treaty 7. I thank you for your gracious invitation to have me, but I am not a member so I cannot vote and I cannot put a motion forward today.
[Translation]
Senator Carignan: Claude Carignan from Quebec.
[English]
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Seidman: Judith Seidman, Montreal, Quebec.
[Translation]
Senator Mockler: Percy Mockler from New Brunswick.
Senator Massicotte: Paul Massicotte from Quebec.
[English]
Senator Patterson: Dennis Patterson, Territory of Nunavut.
Senator McCallum: Mary Jane McCallum, Treaty 10 territory, Manitoba region.
The Chair: Maybe it’s necessary to mention which senators have voting rights. They are Senator Claude Carignan, Senator Jane Cordy, Senator Patti LaBoucane-Benson, Senator Michael MacDonald, Senator Paul Massicotte, Senator Mary Jane McCallum, Senator Percy Mockler, Senator Dennis Patterson, Senator David Richards, Senator Judith Seidman, Senator Paula Simons, Senator Carolyn Stewart Olsen, Senator Yuen Pau Woo and myself. Senator Mitchell is an ex-officio member.
Today, we continue our study of Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts.
Colleagues, all of you should have the roadmap. What is going to happen today is explained and indicated in the roadmap.
Amendments have been numbered. We have 195 amendments. The labels are organized according to the groups that are presenting.
Is it agreed that the committee proceed to clause-by-clause consideration 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?
Hon. Senators: Agreed.
The Chair: Thank you.
Senator Massicotte: I have a question. A subcommittee struck. Can we get a copy of the proposed amendments that were agreed to?
The Chair: They are all here.
Senator Massicotte: I didn’t get the one —
The Chair: Everything is here.
Senator Massicotte: I wouldn’t mind seeing the amendments.
The Chair: The amendments are here.
Senator Massicotte: Are those the official amendments, including the joint amendments? Can I get a copy?
The Chair: All of the amendments are there. Today, we handed them out.
Senator Massicotte: Do they include those by the Conservative leaders?
The Chair: All of the amendments are there.
Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: As I said, we have 195 amendments. With your agreement, we will handle them in groups of 10 or maybe more if the opportunity presents itself. Do you agree with that?
Hon. Senators: Agreed.
The Chair: Thank you very much.
Shall amendments 1 to 10 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Agreed, on division. Thank you.
Shall amendments 11 to 20 carry, including the two new ones, 11a and 11b, which are highlighted in grey on the roadmap, ISG-1.12 and MJM1.12?
Senator Massicotte: Can we have debate before we vote? I think it’s appropriate. I want to make sure I understand.
I think Senator Patterson was recommending something whereby the agency would be able to exclude anything very complex. I forget where that is exactly. I think it’s 1.13b, clause 9 of the bill.
The Chair: For clarification, the amendments marked ENEV are the ones that the two groups have agreed on.
Senator Mitchell: It’s CPC 1.13a, where it says:
(a) complex and may require a complex set of mitigation measures;
Senator Massicotte: In that case, if I’m correct, the agency would have the right not to do an impact study where the complexity is —
Senator Mitchell: We’re not there yet.
Senator Massicotte: Can you ring the bell when we get there?
The Chair: Again, we are voting on amendments 11 to 20.
Senator Massicotte: When you talk about 11, are you talking about the sequence number?
The Chair: Yes.
Senator McCallum, did you want to talk about amendment MJM-1.13?
Senator McCallum: Thank you.
We have tried to merge the two, but it’s not possible. It’s unwieldy and they come from opposite ends of the spectrum.
So we put it through with an environmental lawyer from the NWAC. He tried but he couldn’t do it, and so did the lawyers from here. That’s why I thought I want to stand on my own and want to explain why this amendment is different from theirs.
Senator Woo: Chair, in that case, I suggest that we only deal with amendments 11 to 15, and then we pause for Senator McCallum to state her amendment.
The Chair: Good idea.
Shall amendments 11 to 15 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
We are now on amendment 16 proposed by Senator McCallum and are we’re going to ask her to explain.
Senator McCallum, could you read your amendment?
Senator McCallum: The amendment reads:
That Bill C-69 be amended in clause 1, on page 13, by replacing line 13, by replacing line 13 with the following:
“have on the rights of the Indigenous peoples of Canada — and, in particular, Indigenous women —”.
It says “in particular, Indigenous women,” but I can go with “including Indigenous women.”
The reason for this is that the requirement under subclause 9(2) of the IAA that the minister must take into account adverse effects of the physical activity on Indigenous peoples when making an order to designate a physical activity under 9(1) is an improvement on this ministerial power under 14(2) of CEAA 2012.
However, the exercise of this power by the minister ought to specifically consider adverse effects of the physical activity on Indigenous women. Because Indigenous women can be differently affected by industrial projects than non-Indigenous women and even Indigenous men, it is important that the impacts of their rights and interests are taken into account.
There was a recommendation at the last meeting that this be placed under clause 22, which is the gender-based analysis.
So these provisions do very different things. With regard to clause 9 under “Minister’s Power to Designate,” when the minister is deciding, the minister needs to consider certain factors and if they have adverse impacts on Indigenous peoples. This clause is about things to be considered in the assessment. They are talks to a pre-phase of a designated project.
With regard to clause 22 and gender-based analysis, the project has already been designated. If we place the amendment here, it will be too late for consideration because consideration is in clause 9. This would be unfair to the proponents.
Senators, it’s time to be sincere and fair. Indigenous women have been adversely affected by legislation, and we need to pay particular attention to the history of trauma as brought about with witnesses we had from Fox Lake Cree Nation, York Landing First Nation, NWAC, Amnesty International and Connie Greyeyes. This is an issue of equality for Indigenous women.
The Chair: Thank you. If you recall, we discussed these amendments. I think somebody mentioned that we should take out the words “in particular,” but the words “Indigenous women” were important for emphasis because the Indian Act didn’t put enough emphasis on that. That was the logic.
Senator Simons: I want to make sure of this. I don’t think can I support the amendment if it means “especially.”
The Chair: Yes, we’re talking out.
Senator Simons: Okay.
Senator Cordy: That was my point as well. When we discussed it, we said not “in particular” but “including.”
Did you say this is going in the GBA clause?
Senator McCallum: No.
Senator Cordy: Okay. That’s fine.
Senator Seidman: Senator McCallum, I think it has been clarified. So it’s “including,” and it goes under “Minister’s Power to Designate.”
Senator Patterson: Do I understand, Senator McCallum, that rather than “and, in particular, Indigenous women,” your amendment is now “including”? That’s okay with me.
I actually did express my concern that if the phrasing “in particular” was sustained that it might actually undermine Senator McCallum’s worthwhile intention.
The Chair: It will say:
“have on the rights of the Indigenous peoples of Canada, including Indigenous women —”.
And in French it will say:
[Translation]
“have on the rights of the Indigenous peoples of Canada, including Indigenous women—”.
[English]
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Great. Thank you.
Is it agreed to adopt amendments 17 to 25?
Senator Massicotte: The amendment to 9(1), isn’t that part of number 19?
The Chair: No.
I will repeat my question. Shall amendments 17 to 25 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Senator McCallum, amendment number 26, please.
Senator McCallum: It reads:
That Bill C-69 be amended in clause 1, on page 16, by adding the following after line 15:
“(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;”.
I know this is a contentious one, so I would really like it if you listened with an open mind. The rationale behind this was to ensure that reference to the United Nations Declaration on the Rights of Indigenous Peoples is found in the text of the bill, ensuring it has teeth, as opposed to the current situation that finds UNDRIP relegated to the preamble. Having this amendment incorporated in the bill — it is going to be in three clauses; two will come later — will ensure that a consideration of UNDRIP is part of the main decision-making processes of the 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 to achieve this, but it is still before Parliament. To account for this fact, these amendments have been drafted so the various actors involved in the impact assessment process must, at certain points, 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 to the decision statement in 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 granting permission for this broad project would be consistent with UNDRIP, since UNDRIP imposes an obligation, if ratified, on the government and not the private individual.
In seeking to have Canada’s commitment to UNDRIP included in the substantive part of Bill C-69 rather than just the preamble, I would like to flag the precedent in place within this piece of legislation.
Paragraph 22(1)(i) of the proposed impact assessment act indicates one of the factors to be assessed is “the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations” — section 35 — “and its commitments in respect of climate change.” This, presumably, is speaking to the Paris Agreement to which Canada is a signatory, being international law.
This is further alluded to in subclause 114(2) of the impact assessment act, page 65, which grants the minister the authority to enter agreements or arrangements that implement the provisions of any international agreement or arrangement respecting the assessment of environmental effects to which the Government of Canada is a party.
As such, there is a precedent in this bill for Canada to consider its international obligations and agreements under the impact assessment process.
The Chair: Thank you.
Senator Patterson: Senator McCallum made reference to Bill C-262, which is now before the Senate. There is significant support to pass Bill C-262, but it hasn’t happened yet. It would launch a process to review in detail every law of Canada, including Bill C-69 when it passes, to determine whether that statute is in compliance with the United Nations Declaration on the Rights of Indigenous Peoples. We’re not there yet, as Senator McCallum acknowledged. So with the greatest of respect to her, I’m hesitant to support this amendment at this time. However, I do believe that if Bill C-262 is passed by the Senate, every statue of Canada will be carefully reviewed and compared against the UN declaration. We may well get there, but with all respect, we’re not there yet.
For that reason, and I hope she understands, I won’t be able to support this amendment.
Senator Woo: Senator McCallum, why is this clause inserted at the very front end of the impact assessment stage? This is the decision to designate a project in the first place, but it requires the agency to explain how the project, if approved at the end of the process under clause 65, would be consistent with UNDRIP. But I don’t see how the agency would be able to do that at the front end of the impact assessment. This is only about designation. The impact assessment hasn’t even taken place.
I’m not quite sure how this would operate given that what’s asked of the agency cannot really be done until the impact assessment has been finished and there’s a clause 65 decision.
Senator McCallum: The reason that these three amendments have been put is because those are the three critical areas where decisions are going to be made.
The Chair: Are we ready for the vote?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: I think the “nays” have it.
Shall amendments 27 to 39 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Senator McCallum, amendment 40.
Senator McCallum: This one reads:
That Bill C-69 be amended in clause 1, on page 19,
(a) by replacing line 10 with the following:
“21(1) The Agency — or the Minister if the impact assess-”;
(b) by replacing line 18 with the following:
“sessment of the effects of a designated”; and
The word “environmental” has been removed.
(c) by adding the following after line 28:
“(2) The Agency or the Minister, as the case may be, must, when consulting with any jurisdiction referred to in paragraphs (e) to (g) of the definition jurisdiction in section 2, consult in a manner that is inclusive, transparent and reflective of the views and priorities of Indigenous peoples of Canada, including Indigenous women.”
The amendment says “and, in particular, Indigenous women,” but I switched it to “including Indigenous women.”
The duty of the agency or minister under subclause 21(b) of the proposed IAA to consult and cooperate with co-management and Indigenous governing bodies with respect to impact assessment is an important improvement on the legislative framework for impact assessment. However, the constraint on this duty to consult and cooperate with co-management and Indigenous governing bodies only where those bodies have powers, duties and functions related to assessment of environmental effects is inconsistent with the expanded scope of factors to be taken into account in impact assessment under the IAA.
The preamble recognizes the importance of cooperating with other jurisdictions that have powers, duties and functions in relation to the assessment of the effects of designated projects. This cooperation is not limited to jurisdiction with powers, duties and functions related to the assessment of only environmental effects.
Paragraph 7.1(d) on page 11 of the proposed IAA expands the prohibition of effects of projects beyond effects related to changes to the environment to specifically include effects on the health, social or economic conditions of Indigenous peoples.
Additionally, clause 22 on page 19 of the IAA requires that impact assessment of designated projects must take into account factors beyond strictly environmental impacts. That clause refers to any change, occurring in Canada, to the health, social, economic conditions of the Indigenous peoples of Canada.
The duty of the agency or minister to consult and cooperate under subclause 21(b) ought to reflect the expanded scope of impact assessment under the act and the importance of cooperating with other jurisdictions, especially in Indigenous jurisdictions, on all effects of designated projects. Limiting the requirement to consult and cooperate under paragraph 21(b) only to jurisdictions with powers related to the assessment of environmental effects of designated projects is inconsistent with the expanded scope of impact assessment under the proposed IAA.
It is also important that when the agency or minister consults with Indigenous jurisdictions that the voices of Indigenous women are heard, as Indigenous women tend to experience the positive and negative effects of industrial projects differently from non-Indigenous peoples and Indigenous men. Ensuring that their concerns and interests are represented is important to the impact assessment.
The Chair: Are there any comments?
Senator Simons: I want to clarify. We’re taking out “in particular” and changing it to “including”?
Senator McCallum: No, “environmental.” I’m saying it expanded the scope beyond environmental to look at health, social and economic conditions. That’s 7(1)(d). This just looks at environmental, and I’m saying it is expanded in another clause, so it needs to be expanded here.
The Chair: Any other comments or arguments?
Senator Patterson: First of all, no one would disagree with the duty to consult Indigenous peoples on development of projects and the duty to consult them respectfully.
In principle, this is not a problematic amendment, but I would like to point out that we have just approved CPC-1.19b, which provides examples of jurisdictions that should be consulted in this particular process. It lists six jurisdictions that we’ve agreed should be included in the consultations.
My observation is that if we’re going to approve Senator McCallum’s amendment, it really belongs with 1.19b as new subclause 21(7). That would be more appropriate and more logical. This amendment would fit in better with the one we approved in CPC-1.19b.
The Chair: Are you proposing that we add amendment 40 to amendment 39?
Senator Patterson: Well, with Senator McCallum’s agreement, it would be a new subclause (7) to CPC-1.19b.
Senator McCallum: I looked at that bill. We have two situations here. Your amendment is industry-related and mine is Indigenous-related. Those have always been at odds. That’s why it was important to get this in there.
I agree that they should be joined, but I propose that my amendment go to number 2 so it doesn’t get lost, because Indigenous people have always been marginalized. If it’s at the front, then it shows.
Senator Cordy: Just for clarification, you’re saying it can go with it, but it’s a separate subclause?
Senator McCallum: Yes.
Senator Woo: It’s more than that. It would require an amendment to the amendment that we just passed because the first paragraph does contain the word “environment.” We would have to amend what already has been agreed on and adopted.
The Chair: May I suggest that we progress and ask the clerk if it’s possible to add amendment 40 to amendment 39 and come back to it later?
An Hon. Senator: Good idea.
The Chair: I’ve been told that they are going to make it possible before we finish. If not, we can also discuss it at report stage. We can stand this amendment. Is that agreeable?
Hon. Senators: Agreed.
The Chair: Thank you very much.
I want to tell you that the Conservative caucus has withdrawn amendment 42. It is replaced by number 43.
An Hon. Senator: Agreed.
The Chair: Honourable senators, is it your pleasure to adopt amendments 41 to 44?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Thank you.
Now we are at amendment 45.
Senator McCallum: This is the second one regarding UNDRIP. The same statements I made will apply. It is under “Factors To Be Considered” and “Factors — impact assessment.” That’s why we placed it there.
Do you want me to read it all again?
The Chair: It’s not necessary.
Senator Patterson: I won’t repeat the remarks I made with respect to the first UNDRIP amendment. I have the same concerns with this one, respectfully. Thank you.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
An Hon. Senator: On division.
The Chair: Again, is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: Does anyone want a recorded vote?
Senator Patterson: No, on division, Madam Chair.
The Chair: Defeated, on division.
Senator Patterson: You can vote if you wish.
The Chair: Does amendment 46 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Amendment 47, Senator McCallum, 1.20b.
Senator McCallum: This one reads:
That Bill C-69 be amended in clause 1, on page 20, by adding the following after line 36:
“(i.1) the extent to which the effects of the designated project hinder or contribute to the just and equitable transition of the workforce to low-carbon economic sectors and the creation of decent work and quality jobs, with particular attention to Indigenous peoples of Canada and, in particular, Indigenous women;”.
It says “in particular, Indigenous women,” but I would like to change it to “including Indigenous women.”
The requirement under 22(i.1) that impact assessments must take into account the extent to which proposed projects hinder or contribute to the Government of Canada’s ability to meet obligation and commitments in respect of climate change is an important improvement on the current legislative framework and is particularly important to Indigenous women who are at a disproportionately greater risk of climate-change-related effects than non-Indigenous peoples and Indigenous men.
An important component of meeting Canada’s obligation and commitments with respect to climate change is the transition to a low-carbon, sustainable economy. In turn, the transition of the workforce to low-carbon economic sectors is also important.
Canada is a signatory to the Solidarity and Just Transition Silesia Declaration, which stresses the importance of a just transition of the workforce and the creation of decent work and quality jobs in the transition to a low-carbon economy and meeting commitments under the Paris Agreement.
Additionally, Canada has committed to fully implementing Article 21 of the United Nations Declaration on the Rights of Indigenous Peoples, which recognizes the rights of Indigenous peoples, particularly Indigenous women, to improved socio-economic conditions. A just transition in the context of Canada’s commitments with respect to climate change, as well as Canada’s commitment to fully implement UNDRIP, is a transition that is necessarily equitable and one that ought to address existing inequities in the labour market, particularly with regard to economic opportunities for Indigenous peoples.
Impact assessment under the IAA ought to include consideration of factors related to the just transition to a low-carbon economy and the amelioration of the socio-economic conditions of Indigenous peoples, particularly Indigenous women. Women suffer climate change more because of their traditional duties, which are around food and making sure that their families eat. There are cultural implications because they are the keepers of water and the ceremony that goes with water. There is also contamination, which contributes to genetic change.
What I’m asking for is “equitability” with already marginalized people.
The Chair: Any comments?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
An Hon. Senator: On division.
The Chair: Defeated, on division.
Shall amendments 48 to 59 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall amendments 60 to 76 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall amendments 77 to 78 carry?
Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Amendment 79 has been replaced by CPC-1.34, version 7. Are you going to explain this change, Senator Patterson?
Senator Patterson: This amendment responds to concerns that we would lose the expertise of life-cycle regulators on review panels if the current wording of the bill stands. Currently, the chairperson cannot be appointed from the roster as the bill is written, nor can members from the roster constitute a majority.
This amendment would align the constitution of the review panels constituted under this act with those of the offshore boards. It would ensure that the chairperson is appointed from the roster and allows for the possibility of the majority of members being appointed from the roster.
On February 7, I had an exchange with a witness from the Nunavut Impact Review Board that leads me to support this amendment. I asked:
It has been asked whether a life-cycle regulator would be placing themselves in conflict. They also conducted the impact assessment. In fact, you are both the impact assessor, the licensor and the life-cycle regulator. Could you explain how you make that work and why it might be beneficial to perform both roles?
The Executive Director of the Nunavut Impact Review Board, Mr. Ryan Barry, answered:
In our experience, we haven’t seen a conflict in the decision-making points that go along between environmental assessment and then regulation afterward. If anything, it just increases the familiarity with the projects in question.
The way our system is designed means that things that had less certainty during the environmental assessment — when they are on the ground and projects are actually operating, the precautionary approach we take yields new information that allows us to adjust in terms of approval as needed as the project actually goes ahead. We have many instances where that has become necessary, where something in theory seemed like a good idea and then goes to licensing, but it doesn’t work as well as expected. So we go to an alternate means of still allowing the project to go ahead but making sure the environment is protected.
Since we were told that this bill was supposed to create an assessment process that aligns with processes in the North, this amendment would help ensure that the expertise developed on the roster could be properly utilized on the review panels.
The Chair: Any comments?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall amendments 80 to 90 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall amendments 91 to 101 carry?
Some Hon. Senators: Yes.
Senator Woo: Just a second.
That’s fine. Agreed, on division.
The Chair: Carried, on division.
Shall amendments 102 to 106 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Amendment 107, Senator McCallum.
Senator McCallum: This is the third amendment that relates to UNDRIP.
The Chair: This is the third place where you introduce the notion of UNDRIP. I believe it’s the same arguments that you used before.
And, I believe, Senator Patterson, it’s the same arguments that you used before.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: Defeated, on division.
Shall amendments 108 to 118 carry?
Senator McCallum: I want to talk about 1.42d, which is the one that was in conflict with mine.
The Chair: Which number is the amendment?
Senator McCallum: The next one after 108.
The Chair: Okay. So we’ll stop at 108.
Senator McCallum: The way I read the amendment — “federal legislation applicable to the designated project” — it sounds like this supports UNDRIP.
The Chair: Senator Patterson? It’s CPC 1.42d.
It’s in the version 3 bundle of the Conservative amendments, page 93. The amendment is CPC-1.42D, and it says:
“firmed by section 35 of the Constitution Act, 1982;
(e) consistency with any relevant assessment referred to in section 92, 93 or 95 . . . ; and
(f) federal legislation applicable to the designated project and that relates to the Government of Canada’s environmental obligations and its commitments in respect of climate change.”.
That’s your amendment, and the question is?
Senator McCallum: Does it support UNDRIP?
Senator Patterson: I guess I would say no, but I would point out that the bill endorses and acknowledges section 35 of the Constitution Act, 1982, which is referred to in this amendment that we’ve already approved. And there is a significant body of court judgments that affirm the duty of the Crown to consult Aboriginal peoples. So I think that Aboriginal rights are strengthened by the reference to section 35 of the Constitution Act in the amendment we’ve already approved, but I would not say it includes UNDRIP.
The Chair: Shall amendment 108 carry?
Senator Patterson: Didn’t we already approve it?
The Chair: We have approved 108. Okay.
Shall amendments 118 to 127 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Next is amendment 128.
Senator McCallum: That’s 1.55. It reads:
That Bill C-69 be amended in clause 1, on page 55, by replacing lines 26 to 28 with the following:
“may be, must:
(a) take into account any scientific information and Indigenous knowledge — and, in particular —
I have “in particular,” but I’ll switch it to “including.”
. . . the knowledge of Indigenous women — provided with respect to the assessment; and
(b)include a gender-based analysis of the effects of the policies, plans, programs or issues being assessed.”.
While subclause 97(2) requires that the regional assessments in clauses 92 and 93 and the strategic assessment in clause 95 must take into account Indigenous knowledge, there are no provisions that require the consideration of gender factors for regional and strategic assessments. The assessment of designated projects must consider the factor of the intersection of sex and gender with other identity factors. However, there are no provisions of the proposed IAA that require gender-based analysis.
Indigenous women have experience and knowledge that can be particularly relevant and helpful to regional and strategic assessment, and it is important that the legislated framework for these processes ensure their voices are heard.
For part (b) of this amendment, speaking of gender-based analysis, I know there is some consternation over why it is located here if it is already found with clause 22 of the IAA.
Clause 22 specifically looks at gender-based analysis through the lens of project assessments and the factors to be considered therein. Clause 97, which this amendment would seek to amend, is dealing with regional and strategic assessment. This is an entirely different process.
Regional assessments are not done to coincide with a specific project. These are done to examine the impacts that projects have had or could have on a specific region.
This is an entirely different mechanism. Within this mechanism, gender-based analysis is not a factor that has to be considered, which I believe is a huge oversight. Subclause 97(2) specifically looks at the factors to be considered for these assessments.
I feel that we cannot grant gender-based analysis and the assurance of gender equity considerations for some assessment processes and then arbitrarily leave them out of others. Through this amendment, we would rectify this wrong and ensure there is continuity in having gender-based analysis as a factor to be considered through all assessments, whether they be project, regional or strategic.
Part (a) of this amendment underscores the importance of women as knowledge keepers. Native women are very present in First Nations communities, urban settings, academic institutions and heading families. They play prominent roles in their communities. They teach, heal, tell stories, set directions, and develop social and economic frameworks. They are here in the present and do amazing work toward self-repositioning as active and empowered creators of Native traditions, spiritualities and epistemologies. Storytellers, healers and teachers, whose voices are increasingly amplified by regained spiritual and cultural strength, have come to recognize the need to speak in unison to produce an identity for Native women, finally uncontested and unsuppressed and ultimately recognized and embodied as fully valid and autonomous.
Even after what has been a long legacy of hurt and despair, they have found the room to solve problems for their families and nurture a sense of purpose and future orientation, all critical for a resilient and hopeful life.
The Chair: Are there any comments?
Senator LaBoucane-Benson: I like this amendment because it talks about regional assessments. The whole idea about regional assessments is to get to cumulative effects. I think that traditional ecological knowledge, or Indigenous knowledge, is well placed here, as is the idea of searching for cumulative effects. Understanding the way the land was over generations, intergenerational knowledge would be well placed and strategic in regional assessments. I think this is a good place to add Indigenous knowledge into the assessment process.
Senator Mitchell: I would just like to add that for those who are concerned about onerous expectations of proponents, this is not an expectation of the proponents. Regional assessments are outside that process, so it’s not additional work.
The Chair: So it will be good if it’s there.
Senator Mitchell: Yes.
Senator McCallum: There are already proponents working with gender-based analysis, and there are frameworks.
Senator LaBoucane-Benson: This is outside of that.
The Chair: I want to also want to put my support behind this amendment.
I will just read item (a). It will say:
(a) take into account any scientific information and Indigenous knowledge — including the knowledge of Indigenous women — provided with respect to the assessment;
So we have changed that word.
In French it will read:
[Translation]
(a) take into account any scientific information and Indigenous knowledge—including the knowledge of Indigenous women—provided with respect to the assessment;
[English]
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division. Good. Thank you.
Senator McCallum: Excuse me. I missed an amendment that I wanted to speak to. Is it too late to go back?
The Chair: Which one?
Senator McCallum: It was number 120, CPC-1.48.
Senator Stewart Olsen: Do you just want to be on the record and not change the —
The Chair: We have already voted, but do you want your comments on the record?
Senator McCallum: Yes.
With regard to 1.48, I missed it. What effect will this amendment have on First Nations’ right to litigate? Will it limit litigation?
I can bring it to third reading.
The Chair: To third reading. Thank you.
Shall amendments 129 to 146 carry?
Senator Patterson: Which number?
The Chair: Numbers 129 to 146.
Senator Woo: With the indulgence of colleagues, I’d like to suggest a very small change to ISG-1.84. It’s amendment 139 on the roadmap.
The Chair: Why don’t we agree on this, then: Shall amendments 129 to 138 carry?
Senator Massicotte: I have a comment on 129.
The Chair: So we are at 129. Let’s start with Senator Massicotte.
Senator Massicotte: There have been so many discussions regarding subclause 160(1) and the appointment of the officer. Where did we end up? At one point, we had an amendment that the nomination would occur with consultation of the Leader of the Opposition and the leaders of every party. Is that where we finished? I noticed at one point that’s what we had.
Senator Wetston: By memory, because I don’t have it in front of me, I don’t believe we included the extent of that amendment. But please refer to it. There are a lot of amendments here and we can discuss it.
The Chair: You have the amendment.
Senator Massicotte: I’m looking at subclause 160(1). At one point, the text, as amended, was that the Governor-in-Council should appoint an officer to be president of the agency after consultation with the leader of every recognized party in the House of Commons. Is that still the case?
The Chair: The amendment reads as follows:
“meaningfully, in a manner that the Agency or committee, as the case may be, considers appropriate and within the time period that it specifies, in any assess-”.
Senator Massicotte: You are talking about something else. I have no problem with that.
Senator Woo: That’s the amendment you are referring to.
Senator Massicotte: That’s still the case?
Senator Woo: That’s amendment 129. That’s your amendment.
Senator Massicotte: Subclause 160(1).
The Chair: Which amendment are you referring to?
Senator Massicotte: It’s number 158.
The Chair: You said amendment 129. Is that the case?
Senator Massicotte: I’m looking at number 158 on the roadmap.
The Chair: No, we are not there.
Shall amendments 129 to 138 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Senator Woo, amendment 139.
Senator Woo: Colleagues, in the last paragraph of proposed amendment ISG-1.84, we talk about how “. . . the President must not give directions with respect to any particular project report, decision, order or recommendation of the Agency or review panel except as otherwise provided in this Act.” The intent is to not have interference on the part of the president. The president has to do his or her job in an impartial way. However, it occurred to me and others that we should leave “Agency” out of this paragraph because the president of the agency is responsible for the agency and has to give direction to the work of the agency. Whereas the president should not give direction to a review panel, it would be contradictory to have a president of an agency if that person is not able to give direction to the work of his or her institution.
The Chair: Senator Woo, can you tell us where your change is?
Senator Woo: What I would propose, therefore, is a very small change, if you will allow it, to simply delete the words “the Agency or” in that last paragraph and replace them with the word “a.” the letter a.
I will read the new version of the last paragraph, replacing line 17 with the following:
“Act as authorized by the Minister. However, the President must not give directions with respect to any particular project report, decision, order or recommendation of a review panel except as otherwise provided in this Act.”.
The Chair: And the French will read:
[Translation]
(b) by replacing line 17 with the following:
“Act as authorized by the Minister. However, the President must not give directions with respect to any particular project report, decision, order or recommendation of a review panel except as otherwise provided in this Act.”.
[English]
Maybe someone French can help me. In English it will read “. . . order of recommendation of a review panel.”
And in French it will read:
[Translation]
“[...] en particulier d’une commission [...]”
It can’t be “de la commission”. It has to be “une commission, sauf disposition contraire de la présente loi”.
[English]
I think it’s “d’une commission.”
Senator Massicotte: Why don’t we just approve it in English?
The Chair: We can’t do that.
I think it will be “d’une commission.”
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division, okay; so amended.
Shall amendments 140 to 146 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
We have finished clause 1. Shall clause 1, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: With leave, is it agreed to group clauses for which we have no amendments identified in the roadmap?
Hon. Senators: Agreed.
The Chair: Shall clauses 2 to 5 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall amendment 147 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
We now have amendment 148. Senator Cordy.
Senator Cordy: I wonder if I could combine 148 and 152, because they are basically the same, just for different offshore petroleum boards? My speaking notes would be similar forth both.
The Chair: We cannot because they belong to different clauses.
Senator Cordy: I know, but I will give speaking notes for both at the same time, just to save time.
Thank you very much. I’m putting forward these amendments, 148 and 152, because of testimony that we heard in St. John’s, Newfoundland, and in Halifax, Nova Scotia, when the committee travelled there.
Many witnesses expressed concerns with provisions in Bill C-69 which provide significantly enhanced influence on review panels of petroleum boards in Nova Scotia and in Newfoundland and Labrador.
Solutions from witnesses that we heard in testimony on this imbalance ranged from prohibiting petroleum boards from sitting as members on assessment review panels to limiting their membership on panels to prohibiting their ability to chair a review panel. We heard these arguments from witnesses, as I said earlier, particularly when the committee travelled to the East Coast and St. John’s and Halifax. That’s understandable because that’s where the effects are felt. Some of the people who presented these arguments were Gail Fraser, Associate Professor, Faculty of Environmental Studies from York University; Nathan Blades, Director of Clean Ocean Action Committee; Mark Butler, Policy Director of the Ecology Action Centre; Gretchen Fitzgerald, National Programs Director from the Sierra Club; Andrea Paul —
Senator Massicotte: That’s okay.
Senator Cordy: There are a lot of them. That’s what I’m trying to tell you.
Hon. Senators: Dispense.
Senator Cordy: You get my point. Those of you who were there — in fact, I heard somebody say that they were surprised to hear all of the concerns that people from the East Coast had on that.
Therefore, I move:
That Bill C-69 be amended in clause 6, on page 94, by replacing line 34 with the following:
“(4) The chairperson must not be appointed from the roster and the persons appointed from the roster must not con-”.
The Chair: Any comment?
Senator Patterson: Madam Chair, I was at the Atlantic hearings in St. John’s and Halifax. I don’t know why this happened — I was told that it was partly due to an election going on in Newfoundland and Labrador — but we did not hear the other side of the story in Atlantic Canada.
There was a flood of testimony, as Senator Cordy has said, critical of the offshore boards which, of course, were set up following difficult and long-standing negotiations between Canada and the Atlantic provinces. But we didn’t hear any representations from the offshore boards. Senator Cordy is correctly describing the concerns, but that was not balanced testimony, in my view.
However, we did have very good evidence here in Ottawa, after we came back, from a professor at Memorial University who described in considerable detail the exemplary safety record of the offshore boards in both Newfoundland and Labrador and Nova Scotia.
So I don’t believe that we need to diminish the role of these boards. In fact, Senator Cordy’s amendment would undermine amendments we agreed to earlier today which gives more credibility to the expertise and long-standing experience of these boards.
For those reasons, I won’t be supporting these amendments.
The Chair: I want to make a point of clarification. The two offshore boards were invited. They didn’t accept our invitation.
Second, they were also invited to submit written statements. They did, but unfortunately they didn’t mention any of these points. That is just a point of clarification. You have that in your records.
Senator MacDonald: Because this touches upon Nova Scotia and the Nova Scotia board, and Senator Cordy rightly points out that a number of concerns are a raised, but all of those concerns were raised by basically the same circle of people when it came to the boards. As Senator Patterson rightly points out, we really didn’t hear the other side of the story from the Nova Scotia board or the Newfoundland board.
I’m fairly familiar with the operation of the Nova Scotia board over the decades, and I think they have done a good job. Like Senator Patterson, I don’t feel comfortable supporting these amendments because I think the board didn’t have its stellar record properly represented or reflected in the testimony. So I’ll be voting against the amendments.
Senator Woo: We certainly heard a lot of testimony about the need for the life-cycle regulators to be more involved in the impact assessment process, both in early planning and at the review panel stage. The principle is correct. The expertise of these regulators should be utilized to the extent possible so that the expertise can be applied to impact assessment. Many of the ISG amendments tried to do that by way of increasing the possibilities and in fact increasing the requirement for consultation and an involvement of the regulators at a very early stage, in early planning, so that their input can be factored into impact assessment.
A number of the Conservative amendments, which have already gone through on division, go even further. I believe we said it “must” have an NEB or CER person be the chair, and we allow for the possibility of a majority as well on review panels from members of the CER.
In my view, that goes too far, but those amendments have been passed on division.
Senator Cordy’s approach goes in the opposite direction and I support it, but it will create a discrepancy, of course, between how we treat the CER and how we treat the offshore boards.
If this amendment were to pass, there will be an internal inconsistency in the amended bill and the government will have to deal with that inherent inconsistency. I think we’ve gone too far on the amendments already passed, and I’m hoping that we can swing the pendulum back a little bit. For that reason, I will support this amendment.
Senator McCallum: I have a question for Senator Patterson. Is there a conflict of interest in the way that would be handled when you look at what the chair of the Canada-Nova Scotia Offshore Petroleum Board is recommending?
Senator Patterson: Madam Chair, I struggle with this suggestion of conflict that comes up sometimes. We want members of the offshore petroleum boards to understand the industry and to be knowledgeable of the industry, and so the composition of those boards reflects that.
Perhaps there could be more balance in the composition of those boards as to environment and development, but that’s an issue that can be fixed through the appointment process. I don’t think that is a problem, or if it is a problem, I don’t think it can be addressed by this bill and certainly not by this amendment.
The Chair: Any more comments?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: A show of hands. Yeas? Nays? Abstentions?
Maxime Fortin, Clerk of the Committee: Yeas 5; nays 6; abstentions 2.
The Chair: The amendment is defeated.
Shall clause 6, as amended, carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall amendments 149 to 152 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
Some Hon. Senators: Not 152.
The Chair: Now we’re at amendment 152.
Senator Cordy: I won’t speak. I have the same comments I had earlier.
The Chair: Are you withdrawing it?
Senator Cordy: I’m not withdrawing it.
The Chair: You have the same arguments?
Senator Cordy: Yes.
The Chair: Do we need a vote?
Some Hon. Senators: The same vote.
The Chair: So the amendment is defeated.
Shall clause 7, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall amendments 153 and 154 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clause 8, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Shall amendments 155 to 173 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 10, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Shall amendment 174 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 12, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall amendment 175 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 13, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clauses 14 to 46 carry?
Hon. Senators: Agreed.
The Chair: Shall amendments 176 and 177 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 47, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clause 48 carry?
Hon. Senators: Agreed.
The Chair: Shall amendments 178 to 185 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 49, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clauses 50 to 58 carry?
Hon. Senators: Agreed.
The Chair: On amendment 186, Senator McCallum.
Senator McCallum: I move:
That Bill C-69 be amended in clause 59, on page 303:
(a) by replacing line 22 with the following:
“27(1) The minister may, with respect to his or her responsi-”; and
(b) by adding the following after line 28:
“(2) Before entering into an agreement or arrangement under subsection (1), the Minister must be satisfied that the agreement or arrangement, as the case may be, does not infringe on any rights or privileges conferred by any other agreement or arrangement that has been entered into under that subsection with an Indigenous governing body.
(3) In this section, Indigenous governing body means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982.”.
Through this amendment, Bill C-69 would ensure that Transport Canada would be required to recognize the jurisdiction of a First Nation that already has a Crown agreement for co-managing a navigable waterway, especially where that waterway is integral to the culture and economy of the First Nation.
By this, any previously existing agreements or arrangements with an Indigenous governing body would not be infringed upon by any new agreements that would arise in the future.
The definition of “Indigenous governing body” has been borrowed from Bill C-91, An Act respecting Indigenous languages, which was reported by the Standing Committee on Canadian Heritage to the House of Commons on April 1, 2019. By borrowing a term already created, there is solid precedent for its use.
This amendment came from the Chief of Easterville in Manitoba. That land is used as a reservoir for the Grand Rapids hydro dam.
Senator LaBoucane-Benson: This is a good amendment because it calls to remind people that if there are other agreements already formed between the federal government and a First Nation, those agreements would stand.
The “no agreement” created in this section could contravene, contradict or wipe out an agreement that a First Nation already has with the federal government. It doesn’t affect a proponent, but it holds these agreements up and makes sure they are respected. It’s a good amendment.
Senator Cordy: I agree with Senator LaBoucane-Benson’s comments. It’s just a reminder that other pieces of legislation are in place and we can’t forget about them.
The Chair: I think so too.
Senator Patterson: Madam Chair, sub (2) of the amendment is really a non-derogation clause, in my opinion. These are common in federal statutes and are not contentious. Certainly a treaty has constitutional protection and should be respected. Many acts also recognize Indigenous governing bodies that have responsibilities pursuant to agreements under section 35 of the Constitution Act.
So, I’m not sure that the amendment is necessary. Section 35 covers it and standard non-derogation clauses cover it. I’m not sure that it’s necessary, but I’m not going to go so far as to speak against the amendment.
Senator Simons: Just to clarify, this is in the navigable waterways section. This is not talking about project assessment. This is talking about access to navigation. I think it’s important, because the avowed intent of that act is to recognize in traditional Indigenous access of waters that some of those things today are not going to be so traditional. I think it’s important that we don’t create a situation where we keep Indigenous communities trapped in the past, that if they want to use the waterways in different ways now, and there’s already a pre-existing agreement, that should be respected.
I understand what Senator Patterson is saying, that it may be a case of suspenders and belts at the same time. But given the intent in the navigable waters section to support Indigenous rights, this is a valuable amendment. And based on the model we’ve been using thus far, if we support it on division, I think that’s applicable and we’ll let the Crown decide.
The Chair: Okay, good idea.
Senator Stewart Olsen: As a point of clarification, does this amendment match in the tanker ban bill? I would assume that the tanker ban legislation relates to navigable waters. Are we contradicting ourselves or should we look at this more carefully?
I’m just not sure where we are with this. I certainly understand, but I don’t know the agreements regarding waters and navigable waters. I don’t know how all-inclusive that is.
Senator McCallum: Cedar Lake is used as a reservoir. The lake was the original home of Easterville, and they were moved so that the water level could be raised. They’re trying to clean it up so that it doesn’t affect the fishing, because a lot of trees and debris come up in the lake which was, at one time, pristine but is now very silty.
It doesn’t affect any other people except for Easterville. It’s a lake, Cedar Lake.
Senator Stewart Olsen: Thank you.
Senator Woo: I think this amendment is already covered on page 286 of the bill. This is Part 3, amendments to the Navigation Protection Act.
The Chair: Could you speak a little louder?
Senator Woo: I think this amendment is already covered by existing clauses in the act. I’m referring to page 286 of the act, Part 3, navigation protection. There is a section regarding Indigenous peoples. It says, “For greater certainty, nothing in this Act is to be construed as abrogating or derogating from the protections provided for . . .,” et cetera, referring to section 35.
Senator Patterson: So we agree.
Senator Woo: I believe it’s already covered.
The Chair: Senator Woo is speaking about page 286 of the bill, proposed section 2.2, “Rights of Indigenous peoples of Canada.”
Senator Patterson: That was my point.
Senator LaBoucane-Benson: We saw this in a different bill that we’re working on, Bill C-92. Proposed section 2.2 that Senator Woo refers to is not the same as agreements.
Affirming the section 35 rights of Indigenous people under the Constitution Act is important, but what Senator McCallum is talking about is modern agreements that are already signed, that are in force right now, and no agreement that could be signed here under this act should contravene those agreements. Those are two separate things.
I think this amendment is worth our consideration.
The Chair: So shall we pass it on division?
Senator Massicotte: I think we all agree.
The Chair: Unanimously?
Senator Stewart Olsen: No, on division.
The Chair: Passed, on division.
Shall clause 59, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 60 carry?
Hon. Senators: Agreed.
The Chair: Now we have amendment 187. Senator Richards, could you explain your amendment?
Senator Richards: Thank you, Madam Chair.
This is about cable ferries, and there are more than 40 across the country. There are five or six in the Saint John area and there are cable ferries in Cape Breton.
My concern is that every time you need to do something with the cable, which happens two or three times a year or more, you have to go to Ottawa to get a declaration to do it. It’s a heck of a waste of time for the people travelling, for the ferry operators, for the workers. It will just bog everything down.
I would like to change the line to:
“(b) designating any works, other than ferry cables, that are likely to substan-”.
That’s on 305, replacing line 18.
The Chair: This is DR-61.305. You received it this morning.
Senator Richards: Line 18, paragraph (4)(b). I have added the words “other than ferry cables.”
Senator MacDonald: I want to speak on this for a few minutes. I received the same concerns from the operators of the cable ferries in Nova Scotia. We have a couple of them in Little Narrows and the Englishtown Ferry in Cape Breton. These ferries often have to replace their cables twice even three times a year. It seems a bit much to have to go to Ottawa to go through a whole list of approvals to put a new cable in place.
So I support this amendment. I think it’s common sense. There is not a huge environmental impact to putting a new cable on a cable ferry.
Senator Massicotte: Given the proposed wording, if there is a major hydro project as we see in Montreal where the cables are underneath the St. Lawrence Seaway, and it’s a new project, under your wording there is no review, no consequence. In fact, it could impede navigation seriously.
I know what you’re thinking. You’re thinking about the test program and small cables, but with the proposed wording, it could be significant and would be under the supervision of no one.
Senator Richards: I think there are two things here. Cable ferries that run across a river from an island to the mainland are sometimes 400 yards long. It’s a whole different ball game, cable ferries compared to what you’re talking about, major hydroelectric projects.
Senator Massicotte: But it’s still cables.
Senator Richards: But I’m specifying ferries here.
Senator Simons: My one concern with Senator Richards’ wording is if this would encompass brand new ferries. I think the real problem is with the definition of cable ferries as major works. The definition of major and minor works is a regulatory thing.
I take Senator Richards’ point, because I remember the cable ferry man. I’ve thought of him often because he made a very impassioned plea for why his area of jurisdiction was improperly encompassed. I’m just worried that the wording of this would suggest you can start a new cable ferry without permits, and that wouldn’t work.
Senator LaBoucane-Benson: I think the issue is that we need to add “existing ferries cables.” You’re talking about regular maintenance work on existing ferries, right?
Senator Richards: Yes.
Senator LaBoucane-Benson: Could we add “existing ferry cables?”
Senator Mitchell: That was my comment.
Senator Richards: “Existing” would be fine.
The Chair: I will read the amendment again:
That Bill C-69 be amended in clause 61, on page 305, by replacing line 18 with the following:
“(b) designating any works, other than existing ferry cables, that are likely to substan-”.
In French, it would read:
[Translation]
“(b) designating any works, other than existing ferry cables, that are likely to substan-”.
[English]
Senator Simons: You can say “repair of existing ferry cables” or “repair or replacement.” You can’t just say “existing ferry cables.” The issue is ferry cable operators were concerned that the definition of major works included routine repairs or replacement if a cable breaks. The issue is that every time they have to repair or replace a cable, you don’t want them to have to go through the whole permitting process again from the beginning.
Senator Cordy: That’s “any works, other than existing” — replacement or repair.
Senator Simons: No, “repair or replacement.”
Some Hon. Senators: Repair or replacement.
The Chair: But “replacement” means a new cable, so just “repairing of existing”?
Senator Simons: Think about the Paula Simons cable ferry company setting up a cable ferry. You can’t have people setting up cable ferries everywhere.
The Chair: We will just add the word “repair.”
Some Hon. Senators: No, “replace.”
The Chair: Maybe the officials can help us. Is it possible to add this? I would like the opinion of the officials.
Nicole Girard, Director General, Navigation Protection Program, Transport Canada: The phrase “major works” is intended to catch substantial interference to navigation. When you are looking at repair and replacement for any work, if there is no substantial interference, “major works” is not intended to capture it. With the replacement of cables, for example, if they are submerged or above, and if there is no substantial interference for navigation, an approval would not be necessary.
The Chair: I think that’s clear.
Senator Woo: Colleagues, the fact that we’re having such a detailed discussion on how to define this issue suggests to me that this belongs in regulation. It doesn’t belong in the bill.
Senator Simons: This is my concern.
I shouldn’t keep calling him the cable ferry man, but I don’t remember the names of all the witnesses at this point. He sent me the documentation and he was correct. They had been encompassed as major works. I know that’s not in the bill, but it is in the documentation that supported the bill. I would be content to have it left in regulation as long as it is publicly noted that this is a legitimate concern. I don’t know that we need to micromanage a particular industry in the text of the bill, but the concern was legitimate. Cable ferries are captured and that’s not right.
Senator Massicotte: All these comments are valid. The problem I have with the interpretation is if this becomes law, the way it reads, it designates “any works that are likely to substantially interfere with navigation as major works.” So it doesn’t matter what the licence is; if it becomes that by definition, it reverts.
Given that we’re talking only about substantial interference with navigation, I’m okay leaving it as is.
Senator Mockler: I like the wording. First, it’s a concern from the Premier of New Brunswick that was brought to our attention. Also, within the context of the letter from the Council of Atlantic Premiers and their concern about Bill C-69, and given what I heard from the officials, I believe that repair and replacement of the ones in New Brunswick, existing cables, should be part of Bill C-69 that we are improving. Right, Senator Mitchell?
Senator Mitchell: Sure.
Senator Mockler: And providing clarity.
The Chair: In your amendment, Senator Richards, you say “designating any works.” When you use the term “any works,” it’s already putting some ambiguity there.
Senator Richards: But that’s in the bill.
The Chair: Yes. So “any works,” followed by your specificity, “other than repairing existing ferry cables.”
Senator Richards: “Repair and replacement.”
Senator LaBoucane-Benson: “Repair and replacement of existing cables.”
Senator Mockler: Regarding the big projects that Senator Massicotte is talking about, in Atlantic Canada we would love to have those projects.
Senator Stewart Olsen: I would agree with “repair and replacement” mostly because if we wait for regulations, it would be five years from now before they get them finalized. I don’t think we should leave our cable ferry operators in that position.
Senator Seidman: I’d like to add that there are no guarantees about the regulations. We can be hopeful about the regulations, but that’s about as far as it goes. So I think we should specify.
Question.
The Chair: I need to read the French version because we added:
[Translation]
“b) désignant des ouvrages autres que les câbles de traille [...]”
[English]
The English would read:
“(b) designating any works, other than repair and replacement of existing ferry cables, that are likely to substan-”.
And the French will read:
[Translation]
“b) désignant des ouvrages autres que la réparation et le remplacement de câbles de traille existants, qui risquent de gêner [...]”
Does that sound good?
[English]
But we say in English “repair and.” So it’s “or.”
Shall amendment 187 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: As amended?
Some Hon. Senators: As amended.
Senator Wetston: Madam Chair, from the point of view of interpretation, “and” can be “or,” but “or” can never be “and.”
Some Hon. Senators: It should be “and.”
Senator Mockler: A good point.
Senator Wetston: Legislative draftspersons will say I’m totally wrong, but that’s my understanding.
The Chair: We just adopted it. Sorry, we have to continue.
Shall clause 61, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall amendments 188 and 189 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 62, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clauses 63 to 73 carry?
Hon. Senators: Agreed.
The Chair: On amendment 190, Senator McCallum.
Senator McCallum: This is amendment MJM-74.313. I move:
That Bill C-69 be amended in clause 74, on page 313,
(a) by replacing line 28 with the following:
“74(1) The Schedule to the Act is amended by replac-”; and
(b) by adding the following after line 34:
“(2) the Schedule to the Act is amended, in Part 1, by adding the following after item 100:
Item 101 gives the coordinates for Cedar Lake and says, “The lake’s water boundary includes the mouths of all connecting waterways.”
So 10 and 11 are together.
These amendments to the schedule would see Transport Canada add Cedar Lake — which is what amendment number 9 was about — to the schedule of important navigable waterways to ensure a higher priority is given to reviewing future projects or development works in our Cedar Lake resource management area.
There was a forced relocation by Hydro of the residents of Cedar Lake, and it happened without consent of the residents. The flooding of approximately 200,000 hectares placed the majority of the traditional land and home community under water. Flooding has impacted the once-pristine water, which is no longer to be trusted for drinking. Trees fall into the water and erosion occurs due to fluctuating water levels. Graves are exposed and sacred sites are now under water. A river that was once a basis for life has become deadly. Wildlife habitat has been destroyed.
Cedar Lake was the resource area for the residents and their way of life, and everything they knew changed overnight. Their way of life included the harvesting rights. They practised, fishing, hunting and trapping and a healthy lifestyle.
The flooding impacted their environment and social, cultural and financial aspects of their lives, and it contributed to a breakdown of society and community. Their main focus has been managing the lake and bringing it back to a safe and healthy state.
At Cedar Lake, the reserve of Easterville is called Chemawawin. They closed the lake for harvesting for four or five years to help rejuvenate the fish stock. The residents of Easterville would like support to improve the health of their resources, the lake and the lands around them and, in the process, the health of their residents. They would like support so that their resources do not become vulnerable to projects or development in the future.
Clause 74 was chosen because it, along with clause 75, is the clause that deals with the schedule to the Navigation Protection Act. An amendment to clause 75 will also be necessary because clauses 74 and 75 amend the same portion of the Navigation Protection Act that contains the references found immediately after the heading “Schedule.”
Because clauses 74 and 75 have different coming-into-force dates as prescribed in subclause 196(1), clause 75 will come into force on Royal Assent and clause 74 will come into force at a later date to be fixed by order of the Governor-in-Council.
At the time clause 74 comes into force, its content will replace in the act the content of clause 75. By having this amendment included in both clauses 74 and 75, we ensure continuity of this amendment from Royal Assent onwards.
The Chair: Any comments?
Senator Simons: I wonder if we could get someone from the staff table to explain this to us, because this is a very complicated point.
Ms. Girard: If I can turn your attention to clause 62, proposed section 29, regarding when the minister can amend the order of this schedule, there’s a series of criteria that are to be considered.
Under section 29, there are various conditions that the minister may consider, including whether the waterway is navigable on a nautical chart, the physical characteristics of navigable water, how it connects, the safety of the navigation and past current navigation in the navigable waters, and whether there are Indigenous peoples who have navigated or navigate the water.
These are the criteria the minister would consider in adding to the schedule.
Senator Simons: Is Cedar Lake not currently a scheduled waterway?
Ms. Girard: At this time it is not. How it would work, in terms of the process in the legislation, is that for the waterways that are being proposed there would be an assessment based on these criteria and then, according to the process that would be established, they would be added in the order.
Senator Simons: What is the legal consequence if we were to adopt these two amendments to clauses 74 and 75? Is it our place to be prescriptive about which things go on this schedule?
Ms. Girard: The difference between adding waterways to a schedule would mean there are additional approval requirements. If there are any works other than minor ones that take place on a scheduled waterway, it would mean that an owner would need to verify that there’s no interference with navigation and would need to submit an application for approval.
If it’s a waterway on non-scheduled waters, there’s a two-step process: either the owner comes in for an approval or goes through a public resolution process.
Senator Simons: How would this affect the operation if there’s a hydro dam on the water now?
It’s a reservoir, so the dam isn’t there.
Senator McCallum: No.
Ms. Girard: It would be captured at that point. When future work is intended, if it’s a repair that may interfere with a navigation, the proponent would likely need to come in for an approval.
The Chair: Thank you.
Senator Patterson: I think it’s clear that there is a process set up under section 29 which would allow the minister, or the Governor-in-Council, to amend the schedule as Senator McCallum is proposing to do. That sets out criteria, including the interest of Indigenous peoples and other impacts, safety of navigation, et cetera.
There is a way of addressing this through a process that would include gazetting. I’m not sure that it’s in the purview of this committee or in the scope of our work on this bill to actually amend the schedule.
Having said that, I was in Winnipeg when we heard from First Nations about the impact of flooding. Senator McCallum, you can confirm to me, but I think we heard about the situation in Cedar Lake while we were in Winnipeg.
Senator McCallum: Yes.
Senator Patterson: I would suggest that we should acknowledge this testimony and we should consider including this situation in an observation in the report, but it is not appropriate for the committee to unilaterally amend the schedule when there’s a process set out in the bill.
Obviously it would be suggested that Cedar Lake should request that the minister amend the schedule following the process set out in 29(2), but we just can’t do this while we’re looking at the legislation. I would say that is a regulatory matter, but let’s make an observation in the report.
Senator Wetston suggested that; I don’t take credit. I think it’s a way of showing respect to the testimony we heard and Senator McCallum’s concern, without going beyond our scope in reviewing the legislation.
Senator McCallum: What would the observation accomplish?
Senator Patterson: It would let the minister know that there is an issue of concern in Cedar Lake and that consideration should be given to including this in the schedule. The band can request that the minister consider this as soon as the bill is passed.
Senator McCallum can help us draft an appropriate observation.
Senator McCallum: Can I have your comment on this?
Ms. Girard: Yes, certainly. When we issued a consultation paper last fall looking at the process, we also received submissions regarding different waterways, so that’s part of the assessment we do. There certainly has been expressed interest.
You spoke about section 27 earlier in terms of co-management agreement. This would be a good opportunity to set up a tailored approach with Indigenous groups as to how these waterways are considered in the schedule.
We are finalizing the consultation process. We intend to launch that upon Royal Assent, where we would be receiving the names of the waterways. Our intent is to be able to amend the schedule as soon as possible.
Senator McCallum: Okay. I just want to make certain — because they’ve had such a hard time for the last 50 years — that it’s just not shuttled off somewhere and not dealt with.
The Chair: My understanding is that you can submit or the community can submit a request to the officials.
Senator Massicotte: Irrespective of that, I still recommend that there be an observation. I think it would add a lot to the report.
Some Hon. Senators: Agreed.
The Chair: We will discuss observations at the end.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Senator Mockler: I will support observations as long as Senator McCallum is consulted. In the spirit of what our colleagues Senator Wetston and Senator Patterson said, maybe they could be part of helping draft the wording so that, going forward, this observation could be considered when we send it over to the other chamber.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: No.
The Chair: Shall clause 74 carry?
Hon. Senators: Agreed.
The Chair: Amendment 191, I believe, touches the same thing.
Senator McCallum: It’s the same one.
The Chair: So you will withdraw it?
Senator McCallum: I don’t really know what to do. It will be the same observation because the two are the same. There’s a link.
The Chair: So you are withdrawing it?
Senator McCallum: No, it will be an observation.
The Chair: So I’m going to ask the question.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: No.
The Chair: Shall clause 75 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 76 to 101 carry?
Hon. Senators: Agreed.
The Chair: Shall amendment 192 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 102, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clauses 103 to 127 carry?
Hon. Senators: Agreed.
The Chair: Shall amendment 193 carry?
Some Hon. Senators: Agreed.
The Chair: On division.
The Chair: Carried, on division.
Shall clause 128, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall clauses 129 to 195 carry?
Hon. Senators: Agreed.
The Chair: Shall amendments 194 and 195 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 196, as amended, carry?
Some Hon. Senators: Agreed.
The Chair: On division.
The Chair: And that’s it.
Before going into the schedules, can we revert to amendment number 40? Our law clerks have been very efficient and they have something to propose.
Now that everybody has in their hands the new draft amendment 40, it will read:
That Bill C-69 be amended in clause 1, on page 19:
(a) by replacing line 18 with the following:
“sessment of the effects of a designated”; and
(b) by adding the following after line 28:
“(1.1) the Agency or the Minister, as the case may be, must, when consulting with any jurisdiction referred to in paragraphs (e) to (g) of the definition jurisdiction in section 2, consult in a manner that is inclusive, transparent and reflective of the views and priorities of Indigenous peoples of Canada, including Indigenous women.”.
The new word is “including.”
I will read the French:
[Translation]
The following is proposed:
That Bill C-69 be amended in clause 1, on page 19:
(a) by replacing line 18 with the following:
“sessment of the effects of a designated”; and
(b) by adding the following after line 28:
“(1.1) the Agency or the Minister, as the case may be, must, when consulting with any jurisdiction referred to in paragraphs (e) to (g) of the definition jurisdiction in section 2, consult in a manner that is inclusive, transparent and reflective of the views and priorities of Indigenous peoples of Canada, including Indigenous women.”.
[English]
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Senator Woo: The issue that was raised was the potential conflict with CPC-1.19. Can somebody clarify how this revised amendment connects with CPC-39 which we’ve already agreed to? Maybe Senator Patterson can help us.
Does that mean that if we combine it, essentially we are revoking 39?
The Chair: No. We adopted that and we’re adding a section following it.
Senator Woo: There’s no conflict?
The Chair: What we have done is replaced MJM-1.19 with this new version.
Senator Woo: I understand it’s just a renumbering issue, then.
The Chair: Yes.
Senator Woo: Thank you.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: We now need to re-adopt clause 1, as amended.
Hon. Senators: Agreed.
The Chair: Thank you.
Shall Schedules 1 to 4 carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Hon. Senators: Agreed.
Senator Massicotte: I have a question. I know we changed the wording quite a bit. We got a copy this morning. As amended, it reads:
“Whereas the Government of Canada is committed to enhancing Canada’s global competitiveness by building a system that enables decisions to be made in a predictable and timely manner, thereby providing certainty to investors and stakeholders, driving innovation and enabling the carrying out of sound projects that create jobs in all regions of Canada;”.
The Chair: Senator Massicotte, you have to go slowly because we have to follow where you are.
Senator Massicotte: Amendment ENEV-1.02. It affects clause 1, page 2. It’s in relation to the preamble.
The Chair: It was adopted.
Senator Massicotte: This is in the preamble.
The Chair: Clause 1, page 2.
Senator Massicotte: Are we all on the same page?
The Chair: This was adopted, it’s not the preamble. This is clause 1. If you read it, it says clause 1, page 2.
Senator Massicotte: So it’s too late?
The Chair: It is already adopted.
Senator Massicotte: Got it. The mistake is going to remain, I guess.
The Chair: Address it at third reading, if you want.
Shall the preamble carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make technical and typographical changes and adjustments to the amendments adopted by the committee?
Hon. Senators: Agreed.
The Chair: Thank you.
Does the committee wish to consider appending observations to the report?
Hon. Senators: Agreed.
The Chair: We have one observation but we cannot just give it to somebody to do. We have to do it here.
Do we have permission for steering take care of the observations with regard to Cedar Lake?
An Hon. Senator: Yes, but in consultation.
The Chair: In consultation with Senator McCallum.
An Hon. Senator: And Senator Wetston.
Senator Cordy: Why don’t we do that now? It doesn’t have to come back to the committee, then.
Some Hon. Senators: No.
The Chair: It doesn’t have to come back. We are going to approve right now, so we will not need to.
Senator McCallum: Does it have to be done now?
The Chair: With general instructions.
Senator McCallum: So you’ll do that.
The Chair: Yes.
Senator McCallum: Okay.
Senator Woo: I agree we should make the decision now. We should delegate it to steering, but do it now, after this meeting if you can, so that we can get the report prepared during the break and have it tabled in the Senate as soon as we come back.
The Chair: Is that a motion?
Senator Woo: That is my motion, yes.
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill, as amended and with one observation, to the Senate?
Hon. Senators: Agreed.
The Chair: Colleagues, we have three pending matters to discuss. We have received the budget implementation act. We are in the process of finding witnesses. Hopefully, it will take us just one sitting day. After that, we need to finish our report.
I have sent you my reflections on the recommendations. If you have read them, they are very general, positive and constructive. I hope you read them so that when we come back, we can finalize our report, which is due very soon, before the end of this session. We have done so much work on this report. We cannot not submit it.
Senator Mockler: That report must be tabled before or on June 6.
The Chair: We had a date.
Senator Mockler: The BIA.
The Chair: The BIA, yes.
Senator Cordy: Will we be dealing with the legislative piece that we’re responsible for at our meeting on Tuesday when we come back?
The Chair: Yes. We already have some names. Everything should be ready for the next sitting to start with witnesses regarding the legislation.
Senator Cordy: Thank you.
Senator Massicotte: You also mentioned the email we got suggesting how we should complete our work. I think we should all read that. I think it’s going to be complicated.
The Chair: Senator Massicotte, we have to be constructive. Everything can be complicated, but everything can also be very simple if the will is there.
Are there any more questions?
I will ask steering to stay so we can decide on the instructions for the observation.
Senator Patterson can you stay? It will take 15 minutes maximum to do the observation.
Senator Mockler: Is this the last item? I have a question.
The Chair: Yes.
Senator Mockler: In the spirit of cooperation, is Senator Mitchell part of steering?
The Chair: No.
Senator Mockler: Okay, thank you.
Senator Cordy: I would like to take a moment to thank the staff who have worked exceptionally hard, the chair for moving things along quickly today, and the willingness of all sides to get together the other evening to start a process so that we could get this through efficiently and quickly.
The Chair: Thank you very much.
(The committee adjourned.)