Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue No. 58 - Evidence - April 2, 2019
OTTAWA, Tuesday, April 2, 2019
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, met this day at 5:01 p.m. to give consideration to the bill.
Senator Rosa Galvez (Chair) in the chair.
The Chair: Good evening and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Rosa Galvez. I’m a senator from Quebec and the chair of this committee. I will now ask senators around the table to introduce themselves.
Senator McCallum: Mary Jane McCallum, Treaty 10, Manitoba region.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6, Alberta.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Pratte: André Pratte from Quebec.
Senator Neufeld: Richard Neufeld, British Columbia.
Senator Mockler: Percy Mockler from New Brunswick.
Senator Richards: David Richards, New Brunswick.
Senator MacDonald: Michael MacDonald, Nova Scotia.
The Chair: I also want to introduce the analysts from the Library of Parliament, Sam Banks and Jesse Good and the clerk of the committee, Maxime Fortin.
Before we officially start the meeting, do you agree to authorize Senate Communications staff to take pictures, to film excerpts during the meeting and to publish them?
Do you agree?
Hon. Senators: Agreed.
The Chair: Thank you. Colleagues, tonight we are continuing our study of Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts.
Today we welcome, from the Smart Prosperity Institute, Stewart Elgie, Executive Chair; and from the Canadian Environmental Law Association, Richard D. Lindgren, Counsel.
Thank you for joining us. I invite first Mr. Elgie to do your opening statement, after which we will proceed with a question period.
I’m wearing two hats, I’m a professor at the University of Ottawa and I chair the country’s largest environment-economy research institute called the Smart Prosperity Institute. I’m also the co-chair of a business leader’s council that includes CEOs from oil, mining, manufacturing and banking that are working together to promote clean growth for Canada.
I ended up being on the government’s economic strategy tables for the past year on the natural resources economic strategy table. We spent a lot of time talking about how to drive competitiveness and resource sectors, and also discussing Bill C-69 and some of my views have been shaped by that experience. In a previous life, I was an environmental lawyer and litigated many cases under the old Environmental Assessment Act and helped draft the original one in 1992.
In my view, the impact assessment act, overall, is an improvement from its predecessor, particularly the focus on economic, environmental and social sustainability both in the assessment process and the final approval decision. I will talk about some other aspects of the act, but there are some areas where I would recommend the act could be improved, both better economic and environmental outcomes. I will speak to some of those. And the key will be how it’s implemented. That will drive the effectiveness of the act and I will perhaps say one or two things about what the bill might do to promote better implementation. I have put a brief in. I won’t read it all. It’s there. I believe the clerk may have distributed it. Let me focus on a few things.
The key to the new act is its focus on sustainability, and that is commendable because that should be the ultimate purpose of development in Canada. It is development that promotes economic, environmental and social benefits. Development that meet this test will be more acceptable to the public and beneficial to Canada in the long run. The goal is a good goal.
Let me talk about what gets assessed, and the first point is the inclusion of strategic and regional assessments in this bill. To me, this is the single most important thing in this act. As someone who has litigated many of these cases in an earlier life, the main shortcoming of the assessment process to date has been its sole focus on the project level. The problem is that many of the issues that end up coming into conflict or concern around development proposals — whether it is pipelines or mines — are larger regional or strategic issues. I saw this time and time again when I was an environmental lawyer. We see it in the pipeline conflicts now. They are less about the pipeline itself and more about the upstream and downstream activities and climate policy.
The problem traditionally has been because there is no forum to look at these larger regional or strategic issues, they get jammed into project level processes. And I have a lot of sympathy for the proponents in those cases because all of a sudden their pipeline project becomes a debate on climate change in Canada or the fate of woodland caribou, which really needs a broader forum. And this act has created it. The equivalent would be if I wanted to build an addition to my home and they told me I first had to do a regional assessment of the planning process for my whole neighbourhood before I could do a home.
Getting the regional and strategic assessments right will be more important than anything else you do in this act. If you get those large scale assessments right, that’s where you can solve the large-scale problems and you can leave the project assessments to deal with the project level problems. I would say two specific things in my brief to do that. What will happen is because these regional and strategic assessments are not required and the project assessment level ones are, the required will trump the important, as it does in life. I think the act needs to create some urgency and momentum to tilt it in favour of doing these larger scale assessments.
One way to do that is to take a page from the Canadian Environmental Protection Act. It has established what it calls a priority list of substances it plans to assess. You do the same for regional and strategic assessments. You could require the minister and the agency to publish a list of its priorities for regional and strategic assessments, which would create some inertia and pressure to actually do them. You could also have a dedicated fund set up by the agency to set aside budget for doing all this, so it’s not competing with the project budget, which is going to be required.
I’d say getting that one done will be the most important thing in the legacy of this act. There are a couple of other recommendations I’ve put in there about making sure that all significant types of projects are included in the designated projects list, but I will leave my brief on that one.
The second point is what’s called project splitting, which is making sure that all components of a project are assessed in one assessment. This is probably the biggest single flaw in project level environmental assessment, the single biggest area of conflict. The idea is that you should look at all the related components of a project at one time so you understand all the impacts. There have been a number of cases where attempts to split up projects have been struck down by courts. For example, I did one where a proponent was building a new logging road in the eastern slopes of the Rockies near Banff to set up a new mill and logging, and the assessment looked only at one bridge crossing a river.
Similarly, the building of the Great Whale dam in Quebec looked only at wires crossing at the Quebec-Vermont border. That was struck down by the Supreme Court of Canada. There is an easy solution to that. It is the one the U.S. has used for 30 years, which is to require all integrally connected parts of a project be part of one assessment. The U.S. regulations call it the connected actions test. They have used it for 30 years. It has worked well, the sky has not fallen and doing that here would reduce conflict, improve clarity in the act and make sure we look at all aspects of a project at once instead of having to do it over multiple periods. I will also draw attention to one small recommendation I made about changing the definition of cumulative effects. It is worth looking at; I will not dwell on it. I will flag it for you to follow up on.
The third point is the ultimate approval decisions. The act sets out criteria for deciding what’s in the public interest. That’s a big improvement over the previous version that simply said the public interest, which is so vague that it could mean anything or nothing. This act defines what the elements are, which will promote predictability and consistency in decision making. And that is good. I would recommend adding one more element, that sustainability is ultimately about balancing economic, environmental and social factors and ensuring the net balance achieves substantial benefit for Canada.
That’s the trade-off that gets made in these approvals, and the act should be explicit about why that trade-off is being made. I recommended adding a factor that says they should explain why the project’s benefits substantially outweigh any adverse effects. That’s the real decision being made. Let’s be transparent about it to promote better accountability.
Fourth, innovation. Innovation is the environment-economy win-win. It’s the way in which we lower costs and improve environmental benefits. The more we can use this act to drive clean innovation to make Canadian firms in all parts of the economy leaders in environmental technology, the more we will get economic and environmental benefits because all our competitor countries are trying to do the same. I have made a few recommendations for how to do that.
I will flag my Recommendation 10, which is this: The act, in the factors to be considered, includes looking at whether the project uses best available technologies. That’s a factor in the final approval decision, which is strange. It’s a factor to consider, but it’s not listed as a factor in the approval. It should be a factor in the approval that will encourage firms to be adopting technologies and rewarding firms that do that.
The same is true of the mitigation measures. One thing that kills innovation is cumbersome, regulatory barriers. We heard that time and again at the economic strategy table.
The mitigation conditions should encourage firms to try innovative practices and let them take chances and create experiments to see what works. I’ve given some wording about how this might happen.
I will cut off the federal jurisdiction point because I can’t explain that in one minute. This act sets out a process for a schedule that will define all areas of federal jurisdiction. That is a crazy thing to undertake.
First of all, it’s unnecessary. It is presumed, in every act of Parliament, that Parliament will act within its jurisdiction, and the act doesn’t attempt to spell out that jurisdiction. No other environmental statute tries to define completely what federal jurisdiction is. As a matter of law, it’s assumed.
Trying to find it will take thousands of hours, and the example of why that’s a bad idea was the previous act. This idea came in CEAA 2012. They just said federal lands, fish and migratory birds and we will define the rest later. Six years later, they never did the rest. That’s the problem. Going down this road will mean an incredibly narrow view of federal jurisdiction. I would say eliminate that and treat it the way every other act does, which is the Government of Canada is presumed to act within its jurisdiction.
Having sat on the economic strategy table, I know there are a number of concerns particularly from the oil and gas industry about the act. Interestingly, the forestry and mining industry were happier with the act, in our deliberations around the economic strategy table, but the concerns are real from some of the oil industry.
Their concerns mostly, not all, boil down to a concern that the discretionary powers in the act will be applied in a way that unnecessarily impedes development. There is no way to know in advance whether that will be true. The government’s view is this act has new powers that will result in better assessment. That may also be true. It depends on how the act will be applied. There’s nothing we can do here today that will crystal ball gaze how it will be applied.
We can do one thing: There is a 10-year review built into this act. That is a long time to wait to see how the act is doing, and it’s a long time to correct course if there are problems. I’d recommend shortening that to five years. You could mandate the agency to track the implementation of the act, particularly the application of discretionary powers like timelines, and to report annually to the minister’s advisory committee on what it has been tracking so they have the ability to recommend course correction as well, not even waiting five years.
Those two things won’t fully satisfy the concerns industry has because only real action will satisfy them. We can’t know how the act will be implemented. We can build in quicker course correction to adjust and adapt if it’s not being implemented the way we hope.
The Chair: Thank you very much.
Richard D. Lindgren, Counsel, Canadian Environmental Law Association: Good afternoon, members of the committee. The Canadian Environmental Law Association, or CELA, welcomes this opportunity to speak to the impact assessment act.
As you may know, CELA is a public interest law group. We specialize in environmental law. We have been around for almost 50 years. Over that time, we have had the opportunity to represent clients in federal EA proceedings under the EARP guidelines and CEAA 1992 and CEAA 2012.
It is on the basis of that experience that we have reviewed the impact assessment act. In our view, it is a modest step forward from CEAA 2012, but it requires a number of key amendments. Those are described in more detail in our brief that I filed with the clerk a couple of days ago. We’ve recommended approximately three dozen amendments to the legislation that hopefully bring it up to snuff.
Today I will not look at the three dozen amendments. I will focus on two areas of interest. The first is public participation, under the act, and the second is litigation risk.
Turning first to public participation, when the act was being considered last year by the House of Commons, a number of groups, including CELA, recommended that the act needed much more prescriptive detail to ensure full public participation in impact, regional and strategic assessments. In response to those concerns, however, the House of Commons simply inserted the word “meaningful” to the phrase “public participation ” in a few sections in the legislation.
In my respectful submission, simply adding an adjective is not good enough. It does not provide sufficient clarity, certainty or accountability in terms of public participation under the act.
That is why CELA is recommending a series of amendments that define “meaningful public participation,” that set out the purposes and goals of meaningful public participation and that describe how and when it will occur under the act.
At the same time, CELA recommends against including a restrictive standing test or a definition of “directly affected person” that is intended to limit public participation under the act.
After all, one of the main goals of this law reform exercise is to regain public trust in the federal environmental review process. Frankly, public trust will not be regained by excluding some members of the public from participating in the impact assessment process. In short, CEEA 1992 did not restrict standing, and the new act should not restrict standing either.
That brings me to my second issue — litigation risk, as some people have called it in these hearings.
When CEAA 1992 was first being debated in Parliament over 25 years ago, I went to Ottawa to speak to a standing committee on this very issue. Because at that time there were a number of people who were making the claim that endless litigation was going to ensue under the act and that projects would be bogged down by a raft of unmeritorious lawsuits.
That scenario did not play out at all. There was no floodgate of litigation. To the contrary, under CEAA 1992 and CEAA 2012, literally thousands of projects have been reviewed, approved and implemented. Only a relatively small handful of high-profile projects ever triggered a legal challenge.
In my opinion, those challenges were not frivolous, vexatious or brought in bad faith. They brought serious questions of statutory interpretation forward that, quite frankly, the Federal Courts can and should answer. That was amply demonstrated in the recent Trans Mountain and Northern Gateway cases.
In my view, the overall track record demonstrates that the so-called litigation risk is overstated.
The bottom line is that CEAA 1992 did not have a prohibitive clause, CEAA 2012 does not have a prohibitive clause and the impact assessment act does not need a prohibitive clause that is intended to restrict judicial oversight of administrative decision making under the act.
Subject to any questions, those are my opening comments.
The Chair: Thank you very much. At 5:45 we have to vote, so let’s start with the questioning. Three minutes for each one. Please keep your preambles short. We will start with the deputy chair, Senator MacDonald.
Senator MacDonald: I think, Mr. Lindgren, I will start with you. A section of your website says that, “Canada needs a transition to 100 per cent reliance on low-carbon electricity by 2035 and strive for 100 per cent reliance renewable resources for all forms of energy by 2050. Investing in renewable energy will create up to eight times as many jobs as investing in oil and gas.”
Does this mean your organization will oppose the development of any oil sands projects with a lifespan going beyond 2035?
Mr. Lindgren: We’re looking for a just transition to a low carbon economy. Where oil sands projects fit into that remains to be seen. If it adds any comfort, I don’t think we’ve intervened in an oil sands case.
Senator MacDonald: Public figures in this country — the premiers of Alberta, New Brunswick, Saskatchewan, Manitoba and Ontario — strongly criticize Bill C-69, as do many industrial leaders and workers groups. However, many environmental groups such as yours have called criticism of Bill C-69 inaccurate and misleading.
Does your organization believe that criticism of Bill C-69 from major stakeholders is legitimate? If not, what is accurate or misleading about their testimony to this committee?
Mr. Lindgren: I thought I was pretty clear. I was critical of the act myself. There is lots of well-founded criticism out there, whether expressed by environmental groups, First Nations, governmental representatives, et cetera.
What I was taking exception to, in my written submission, if that’s what you were referring to, were some of these rather sweeping generalizations from some folks who suggested that the Canadian economy will come crashing to a halt if this act is passed as drafted. I think that’s hyperbolic, to be diplomatic. I don’t think that’s true. As my friend Mr. Elgie just indicated, trying to crystal ball how this act will work in the future depends on how it will be implemented. Right now, we don’t have a lot of that detail including, for example, the projects list. It’s hard to say with certainty what this act will do on the ground for provincial or federal economies.
Senator Cordy: Thank you very much for being here today. My first question is to Mr. Elgie. You have offered good suggestions, such as having a five-year review instead of a 10-year review. I think you said that would allow enough time for initial projects to go through the process.
What does industry think about this? Industry is always a little nervous whenever changes are made — what they would consider too quickly. Have you spoken to them? Do they think a five-year review is too short a period of time to determine whether it’s helpful? I thought I heard some of them say — but we heard so many witnesses — they want to ensure that they’re not caught partway through starting a project before there’s another review on it.
Mr. Elgie: I won’t pretend to speak for all industry on this. I know their views. Even on the economic strategy table, most of the mining and forestry companies like the new bill. There’s even a split among the oil companies. Some of them liked it; some didn’t. I won’t pretend to speak for all of them.
One thing that came up time and again was this idea of tracking the implementation of the act. That is, using the new act as a learning experiment to ensure that we look for ways to do it more efficiently and look for win-win solutions. There was a real interest in making sure that there be case studies that industry was involved in producing and that there was co-learning between the agency and the proponents involved in the projects.
I think there is a real interest in having quick feedback and course correction. You are right in that they don’t want the rules to change. However, you can address that by grandfathering in existing projects. Anyone in the process could have a choice under the act. They could say, “You have the choice of staying on the existing track or, if amendments are made after five years, shifting to the new track.” There is a way of dealing with that uncertainty and minimizing it. Even a five-year review probably means amendments after seven years realistically. By that time, you will have had several cycles of projects go through the act and will know enough to make informed decisions.
Senator Cordy: Mr. Lindgren, you spoke about the House of Commons changing “public participation.” The House of Commons added “meaningful.” How would you change it to make it more inclusive? How many people could you foresee wanting to appear before any public participation impact assessment project?
Mr. Lindgren: It’s hard to predict in advance who will be interested or affected by a project until it is announced. That’s why it’s hard to speculate how many people will be interested in any particular project. It will be more than to site neighbours. It could be larger regional or national groups that have something to say and should be listened to.
In terms of how you cure the current deficiency, my brief suggests a number of different things. We offered a definition of “meaningful public participation” up front. That’s on page 8 of my brief. We’ve offered a more expansive version of a provision that can go in the statement of purpose of the legislation which expands upon what you need to do to ensure meaningful public participation. In other sections of the bill, we spell out what that means. There should be public participation in scoping exercises and in setting the terms of reference for a review panel. There are lots of opportunities for the act to be more explicit in terms of public participation. As it stands presently, a lot is being left to regulatory detail and we don’t have those regulations either. If you were to ask me what kind of guaranteed public participation is in the act, it’s simply the right to receive a notice and provide written comments within the comment period. That’s it and that’s deficient. We need to go way beyond that.
Senator Woo: I would like you both to comment on the nexus between section 22 factors, the report, and the proposed section 63 public interest test. You have specific recommendations. You didn’t speak to them in our presentation, but could you focus on whether you think the reporting requirements for the agency are sufficiently spelled out for the 63 criteria to be applied and whether the linkage is sufficiently tight and any other matters that apply to that nexus.
Mr. Lindgren: You are quite right. I think there is a disconnect between the proposed section 22 factors, the content of the report and the actual clause 63 factors to be considered. Clause 22 is drafted in a fairly broad manner in terms of the factors that need to be considered in an impact assessment. At the tail end of the process, clause 63 is drafted in a fairly broad fashion, setting out public interest considerations including contributions to sustainability. However, when you look at the report content, the only mandatory component for the report is the report on adverse effects. That’s far narrower than what the impact assessment is supposed to address and far narrower than the factors to be used for addition-making purposes. The mandatory content requirements for both the review panel report and the agency report need to be beefed up. Otherwise, the agency and the review panel will be mere note takers and the real decision makers won’t have the benefit of their insights and analysis of the evidence they receive.
Mr. Elgie: I would agree with that. The big gap is the requirements of what must go into a decision to have an EA or into an EA panel report. The gap between that and proposed section 22 is bizarre. For example, it doesn’t include “alternative means,” or “use of best available technologies,” or “meeting environmental and climate obligations.” Those are in clause 22 but don’t have to be in a report. The biggest thing in a decision-making process is that, at the end of the day, you balance it out and try to decide if it will have net benefits for Canada. While it lists criteria to consider, it doesn’t say why the decision was made that it will have net benefits or why the benefits of the project substantially outweigh the adverse effects. It will be good for all involved to make that more explicit in the final decision.
Senator Seidman: Thank you very much for your presentations. I will grab the bait, Mr. Elgie. You mentioned that you would change the definition of “cumulative effects.” That is something that we have discussed here and the confusion around that provision. I am interested in hearing what you have to say.
Mr. Elgie: People don’t take the bait very often.
First, the number one thing for cumulative effects is to get regional assessments right, because the problem with cumulative effects is I’m going to build a new mine and all of a sudden I have to look at all caribou populations in the Northwest Territories. That’s not fair.
Create a place to look at all caribou populations in the N.W.T., and then the mine can simply tier off that. Getting that right is far more important than anything you do at a project level, cumulative effects.
The one thing I said about cumulative effects that is more modest is this: The way the act is worded, it says you look at the cumulative effects of other activities that have been or will be carried out. The word “will” be carried out is a tough word because how do you know when you’re doing a panel whether something will be carried out, unless they are actually physically building the thing and it’s half-done.
The test that the U.S. has used for 30 years is they say, “likely to be carried out.” It’s a much better test because then you can make a judgment call as to whether or not something is likely to happen instead of having to decide, “Do I know if something will be carried out?” There’s 30 years of language around that wording in the U.S. That was modest, though.
Senator Seidman: Thank you.
Senator Massicotte: Thank you for being with us today.
Mr. Elgie, you mentioned at the start that the most important thing about this whole project, this revised law is the right to have specialized regional projects. Therefore, you are getting better information and are able to separate the politics from the policy from the approval at the project stage. Legislation provides for that, but the legislation does not describe exactly how it’s going to be taken out.
It gives it authority to do so, but should we feel comfortable that it’s going to get right or should there be more structure to it and so on?
Mr. Elgie: That’s a good question. I have thought about this a bunch. The problem is that the nature of these assessments could be so different. The region could be a lake, it could be all of the NWT, the problem could be a particular toxin, climate change. I guess you could have a little more flesh on it, but this is new. To me, one of the good things for a five-year review is to try and do a couple of things, learn from them.
My biggest concern, I’ve seen it time and time again, is that because the project-level assessments have to be done in an agency with limited time and budget, they’re going to squeeze out doing these regional ones. This has been my experience the last 25 years; time and time again there have been commitments to do regional assessments and they have gotten mothballed.
I think anything you can do in this act that creates a requirement and urgency to tilt the scale in favour of doing those are going to take the pressure off the project level to have to deal with these big issues. That’s the single biggest way to help project level assessment go well.
I won’t repeat the two suggestions I made, but I’m happy to help with wording.
Senator Massicotte: My perspective on review is that I think the new legislation is very clear. You somewhat define your project, you get input from the agency and input from the public. When you do the macro informal assessment, the department says exactly what they need to see, they get approved, and then eventually you get it done.
It all sounds very good, and when you hear the deputy minister describe it, it’s logical. In fact it’s a very logical process. You would see that in any other sector. But meanwhile, industry is saying it’s good, talk is cheap. Will it be good and will it be done right? Is there any way to legislate that being done right or do you just have to hope competent, able people will be adequately instructed and cooperate to get a deal done, the process accomplished? Any comments on that process?
Mr. Lindgren: I would back it up a step and look at the big picture. We’ve been doing environmental assessment here in Canada for 40 or 50 years. We have a fairly good idea of how to run a good robust evidence-based participatory process, but the things you need to do that aren’t fully reflected in the legislation. That’s what I was trying to get at before. There’s a lot of detail missing. I presume the federal government’s intention is to flesh this out by way of regulations and operational policy statements and other guidelines. That’s great, but that’s down the road.
I’m a bit nervous to provide any assurance that this is going to be as good as everybody predicts because I don’t see a lot of the implementation details yet. I can’t reach that conclusion.
The Chair: Can I jump on that and say that —
Senator Massicotte: Can you jump after me?
The Chair: No. You already had your three minutes; sorry.
Senator Massicotte: Time flies.
The Chair: What exists right now? Because there are some regulations, and there is a list of projects and there are some details. Do you expect that what is coming is going to be completely different because you’re worried?
Mr. Lindgren: Hard to say. If you talk about the projects list, the projects list we have right now in CEAA 2012 is deficient. There are a number of environmentally significant projects that are not caught by the list. I would be very nervous if that got brought up forward in its entirety.
As well, we don’t have a lot of information setting out the bare bones of how you actually implement public participation. In fact, we have some operational policy statements from the current agency on that. We’ve got lots of direction and lots of guidance. It doesn’t seem to really hit the ground that often or that adequately.
As a lawyer, I prefer to see more detail, even of a general nature, in the legislation to help drive the regulation-making process. That’s the big disconnect in terms of the grandiose words we see in the statute and the on-the-ground reality that we’re going to see.
Mr. Elgie: From a business perspective, the one thing that gives me optimism is the idea that assessments are going to be centralized within the agency. Before you had a number of different departments, each doing it themselves and they did it in different ways, couldn’t have a real depth of expertise in any one place because they have a few of them. Now we are going to have one place that builds staff capacity, has a depth of expertise and learns by doing. That doesn’t guarantee it’s going to work better. But I think the odds of it becoming more efficient and better working are higher.
The Chair: Thank you.
Senator Neufeld: We need to vote here.
The Chair: We say five minutes before. It’s at 5:45. This is our last question, Senator Pratte.
Senator Pratte: Mr. Lindgren, you mentioned the idea of a privative clause. I’m not a lawyer, but I’ve been told that these are more symbolic than anything else that very often the courts just ignore them. Tell us more about what your concern is regarding the privative clause.
Mr. Lindgren: You’re quite right. A clever court or clever set of lawyers can always argue around a privative clause. For example, I’ve heard some suggestions in this committee that the act needs to insulate every decision under this act and call them final, conclusive and binding. Essentially irreviewable. Courts can easily get around that by saying that surely means questions or decisions made within jurisdiction. That doesn’t protect matters that are outside the jurisdiction. We are going to review it anyway.
Having said that, if we’re going to recognize that there is a need from time to time to go to court and sort out some of these big, legal or jurisdictional questions, why put another little hurdle in the way? Let’s just get to the meat of the matter instead of arguing about privative clauses and deference and reasonableness and standard of review. Let’s get on with it. That would be my perspective.
Senator Pratte: Thank you.
The Chair: I’m going to ask if you would be so kind to wait for us.
Senators, please, we need to go to vote. We’ll be back as soon as we can.
(The committee suspended.)
(The committee resumed.)
The Chair: Senators, we will continue with our questioning for 15 minutes.
Senator Pratte: My second question is for Mr. Elgie. You mentioned that the concept of sustainability is at the heart of this bill, obviously. Many stakeholders have asked us to amend the bill to include the idea of economic impacts or economic development either in proposed section 22 or proposed section 63.
Of course, economic development is included in sustainability but obviously some people would want more than this. What is your opinion on this request that we are hearing?
Mr. Elgie: I would say the same thing you do: Sustainability is defined to include the economic benefits of a project. It would be repetitive to say it again. There’s no downside in listing it again, but you don’t need to, by definition.
You don’t want just economic benefits. The good thing about sustainability is it’s about finding ways to create win-wins. That’s the core concept. To me, it’s a better word, actually, than economic benefits. It really means net benefits.
Senator Pratte: Thank you.
Senator LaBoucane-Benson: Mr. Lindgren, you made a statement about meaningful participation in your brief on page 9. I have to admit I’m not a fan of the word “meaningful” either. That’s open to interpretation. But I am also not sure about the definition that you’ve provided. It still doesn’t help to us determine the weight of the evidence. When I think about how even this is going in the Senate, the people that have the loudest voice are not Indigenous people. We are not being bombarded by emails from Indigenous people. We are not necessarily seeing Indigenous people in front of us. In this process of assessment, how do we determine the weight of the evidence before us so that we know who to accommodate and what to mitigate?
For example, if we’re not talking about who has the most impact by a project — and I understand that you’re asking how do we determine that — but if we are not talking about the people with the most skin in the game, who are we accommodating and what are we mitigating in the outcome? There has to be some criterion. I’d like to hear your thoughts on that.
Mr. Lindgren: I’ll give you my thoughts but I’ll start with an apology. I regard myself more as a litigator than a legislative counsel. I have taken my best stab at trying to provide some language, that might get the job done. I’ve offered a definition of “meaningful public participation.” That is probably better understood as drafting instructions for your legislative counsel if you think it’s a worthy thing to do. We’ve tried to get at the essential elements of “meaningful public participation.”
In terms of Indigenous communities whose interests may be at stake in a particular project, you’re quite right, I think the proposed impact assessment act is intended to at least bring them to the table to have a proper and meaningful opportunity to have their say and have that accommodated in some way or fashion. In fact, in the right set of circumstances, they may co-exercise the decision-making process and utilize their own impact assessment process, if they have one.
That is important because Indigenous communities are there to ensure that their section 35 rights and interests are not adversely affected by a project if it’s approved. That gives them a different status than most of the stakeholders we represent. We represent individuals, farmers, environmental groups and the occasional First Nations as well. I think it would be a mistake to lump First Nations in with other stakeholders. As I indicated, they have constitutionally protected rights so they should have a seat at the table. When I say “meaningful public participation,” I don’t necessarily mean Indigenous participation. That’s a whole other set of things that need to be done in order to truly advance the reconciliation agenda.
Senator LaBoucane-Benson: Even for the people that you’re talking about, the farmers, for example, if a farmer is farming near a project, wouldn’t you want that farmer’s voice to be louder, let’s say, than somebody who lives 2,000 kilometres away and has an interest in the environment but really doesn’t have the skin in the game? Wouldn’t that set of criteria help that farmer?
Mr. Lindgren: I think I have to disagree with your premise of the question. The farmer who lives next door to the project site may have an interest because he or she may be impacted, but the person who lives 200 kilometres away may also have an interest because they’re potentially downstream and it may be a commonly held natural resources that the public enjoys that might also be affected. I wouldn’t rule out participation by someone who is 200 kilometres down the road.
Senator LaBoucane-Benson: True, but without criteria it’s difficult to know who is really affected. You’ve given me criteria. If this person is 200 kilometres down the road but they are affected, then they do have skin in the game. There’s just no criterion in a massive public participation that helps us to understand who is affected.
Mr. Lindgren: For 20 years under CEAA 2012, there was no standing test. People who were interested in, or potentially affected by, a project were allowed to participate, no problem. That worked. Now it’s a problem because CEAA 2012 parachuted in that standing test. Now we’ve got a problem. I say avoid the problems by taking out that test.
The Chair: I’m sorry.
Senator LaBoucane-Benson: We were having a nice conversation.
The Chair: Yes.
Senator Neufeld: Thank you, gentlemen, for being here. One of my questions was just asked because I have the same feeling about what the last senator just talked about, regarding public participation.
I’d ask both of you this: Do you think there should be a project list or a description of what could actually be revealed in the legislation like we have now? I agree that some will think it’s okay; some won’t. The fear is that they don’t know what’s going to come down the pike. They don’t know if everything is going to be included or what’s included and what’s not included.
Is it any wonder that you actually have some discontent out there and that people aren’t keen about doing some of these things when there’s no project list that tells them, “This is what we have to concentrate on.”
I’d like a response from both of you on the project list.
Mr. Lindgren: I’ll start and perhaps my colleague can finish.
I think it’s a grave disappointment to a number of us that the list of projects has not been released, even in draft form. I read the transcript from a couple of hearings ago, where Madam Chair made the point that you can’t actually promulgate a regulation until the law is actually passed and proclaimed in force. That’s true. But there’s nothing preventing this government from releasing a draft list. We’ve heard from at least one governmental witness there is a draft list in existence, but only a handful of people have seen it.
Releasing that list earlier rather than later would go a long way in deflecting some of the concern that people have had about how far this act is going to go; what is it going to apply to? My own personal preference is I like the triggers under the old CEAA 1992, namely, a law list, comprehensive study list, inclusion list, exclusion list. That was a better way to do it. You were catching not only the migratory birds and aquatic species but whenever a federal permit, federal money, or federal lands were going to be used to facilitate a project, that triggered some level of assessment. I prefer that, but I don’t see it in the cards that it’s going to be parachuted in. By default, we are stuck with a list.
Senator Neufeld: Mr. Elgie.
Mr. Elgie: I sympathize with not knowing. I agree it would be better to know.
That said, the issue of whether this act sets out a good assessment process is a separate question from which projects are subject to that process. It’s either a good process or it isn’t. We shouldn’t design a process that’s good and say because it applies to this other industry, it’s therefore not a good process. That doesn’t mean it wouldn’t be good to know the list. I think the exercise is setting out a good process.
The one thing I recommended here is that the act can’t set out all the projects in the act itself. Those will always be an act of regulation. However, it could set out the criteria for deciding what will be a designated project. That should be in the act. The act should say: Here are the criteria that should be used in deciding what would be a designated project. One of them should be, for example, types of projects that are likely to have significant adverse impacts. That would be a pretty broad example of the kind of criteria that should be on there.
Maybe that goes halfway to what you’re suggesting.
Senator Richards: Thank you for being here and thank you for allowing me to ask a question. My problem was with the word “meaningful” too. I’m wondering if “meaningful consultation” can mean “unending consultation with a variety of players.”
If we must hear from all concerned, does that mean informed players with economic or popular clout can help decide a project? I’m thinking, in particular, of Trans Mountain, where there’s been a whole slew of debate and stuff over it. Ms. Elizabeth May recently said there’s not a chance in the world that this government-owned project will get made.
I’m concerned about “meaningful consultation” being “unending consultation” in any project list that we have. Could you maybe set my mind at rest about that?
Mr. Elgie: Maybe I’ll take a quick shot at it. My friend will probably have more to say on “public participation.”
Regarding your concern about foreign players, are you concerned that foreign-owned companies are going to be involved in this? Is that the concern, because I think foreign-owned companies should be able to participate.
Senator Richards: We know that foreign-owned companies will be involved in it, but there are foreign players. There is foreign money from environmental groups that have been long involved in trying to stop Trans Mountain and other oil projects down into the states and across Canada.
I’m wondering if they are the valued consultants we’re going to listen to when deciding a project.
Mr. Elgie: I understand. I thought you were referring to the foreign-owned companies, but it’s the foreign-funded NGOs you are worried about. I’ll let others speak to that.
From my experience, it’s never a good decision to tell people that have a legitimate and real interest in a project that they can’t be heard.
Senator Richards: I agree with that.
Mr. Elgie: If you do that the concern won’t go away. It will just find a way to manifest itself outside the process.
Courts have been dealing with this for decades. The two things they do is limit their time so you can’t grandstand and spend forever, and clump like-minded interests together so that you do it efficiently, it doesn’t bog the process down, but you’re also not telling people that you can’t be heard in a room because then they will be heard outside the room, and that is never a good strategy.
Senator Richards: The problem is that the consultation if heard and dismissed inside the room will go outside the room. That’s what will happen here.
Mr. Elgie: I cannot say that nothing will happen. When I used to be an environmental lawyer, the vast majority of conflicts I saw over environmental assessment were that there was a larger regional issue and there was no place to deal with it, so people jammed it into a project process or people who had felt that they had legitimate concern were not able to be heard in the process. I never saw a case — but others have — where there was a meaningful hearing, people who were concerned about it felt like they had their say and didn’t get everything they wanted, and then they went away and litigated. It probably did happen, but I never saw that in my experience for 15 years doing this.
Senator McCallum: Thank you for your presentations. I wanted to go back to the cumulative effects because I’m concerned about the damage that has been done from a lot of the megaprojects in almost all the provinces. When I look at the caribou, the moose, all the biodiversity that is disappearing, that needs to be taken into consideration because it’s impacting the lives of a lot of people up north.
For example, on my reserve for the last two years, the caribou haven’t come down so the people haven’t been able to hunt and have to buy the store food. My reserve had one of the lowest rates of diabetes because they were eating the wild food. So when you said that — I don’t know if I misunderstood you — looking at caribou herds and that was minimal and it wasn’t really a cumulative effect that needed to be taken into consideration. I believe it does.
Mr. Elgie: I’m not sure which of the caribou herds, maybe I didn’t express it well. I had said that the effects on something like a caribou herd are so wide ranging and the result of many different projects across a wide area that it’s hard for a project assessment alone to look at that. Caribou would be a poster child for something that needs a regional impact assessment. You should look at the threshold levels of disturbance across that whole range of habitat that you need before you see caribou populations start to decline. And then, when you’re looking at any individual project, you will have the overall regional threshold assessment and you can ask, “How does that project fit into the big picture,” as opposed to go the other way. That is, when you are doing a project, to require that project to look at the entire range of a massive caribou herd within the timeline set out in this act.
You will never get it done well. Not at all. That’s why I say the most important thing this act will do will be to get regional and strategic assessments right, because those are the big questions. And if you get that right, projects will be just about projects instead of solving large-scale issues that projects can’t solve.
Senator McCallum: B.C. did a study on the moose and what the projects did to the moose, and then you look at Manitoba, and you look at Alberta, which has a lot of devastation. And it’s not only the animals. It’s the medicines that are on the earth, the berries. They will never be able to reclaim that land, even though they say they can. You look at the fish that has been destroyed.
So who is going to look after that big picture — because it is a big environmental picture of Canada — if this system can’t? How do we monitor that? That’s where my concern is.
Mr. Elgie: You ask the easy questions. That’s one of the biggest questions we have. I don’t have a simple answer other than to say that’s partly why we have governments and democracies to resolve those big issues.
The problem we have now is we don’t create a place to make system-level decisions. We don’t create a place to have system-level analysis. The closest analogy I can think of is if I want to put an addition on my house, I would have to do a plan for the entire neighbourhood, and it should go the other way. It is the same thing we do with urban planning, asking the broad systemwide questions and then worry about the addition on my house. We should do that with landscapes, too. Ask the broad questions. What would it take to keep the system healthy? What will it take to the caribou and moose healthy?
It’s like looking at one organ of the body instead of how the whole body first. You can understand how the whole system works. We have not done that in 40 years with environmental assessments. This act is the first chance we have to start doing it the way we should do it. It won’t necessarily mean that you will get the answers that you want to get, but someone will focus themselves at the scale they should be focusing. You will have a better chance at getting the answers you hope for at a system level. That would be my answer.
The Chair: Gentlemen, thank you very much for your testimony. Colleagues, we have another panel coming up.
We continue our study of Bill C-69. We welcome, from West Coast Environmental Law, Anna Johnston, Staff Lawyer; and from Ecojustice, Joshua Ginsberg, Lawyer and Director of Legislative Affairs.
Thank you for joining us. I invite you to make your opening statement. We will then have a question and answer period.
Anna Johnston, Staff Lawyer, West Coast Environmental Law: Thank you, Madam Chair. I’m grateful to be here in the traditional territory of the Algonquin nation. I’m a staff lawyer at West Coast Environmental Law. I also sit on the Multi-Interest Advisory Committee that Minister McKenna appointed to assist with this review and bill, and co-chair with Mr. Kneen, who was here yesterday, at the Environmental Planning and Assessment Caucus of the Canadian Environmental Network.
West Coast has submitted a joint brief along with other groups recommending five priority shared amendments to the bill. I will not get into these this evening, but I believe you should have received them by now.
We are also submitting an individual brief. We should get that to you shortly. It proposes an additional six ways to strengthen the bill which I will quickly outline here. Before I do, I would like to make a few observations.
First, the Senate should not capitulate to industry demands about this bill. The oil and gas industry effectively wrote CEAA 2012 which everyone agrees is broken. Regardless, they would have the Senate make the same mistakes in Bill C-69. Canadians voted for a new assessment law, one that was not written by industry.
This government ran on a platform to strengthen environmental assessment processes and to restore public trust. I have reviewed the amendments requested by the industry associations. Most would completely and fundamentally undermine the purposes of environmental assessment, meaningful public engagement and reconciliation with Indigenous people.
Those amendments also fundamentally misunderstand what environmental assessment is and what is required to make it work. EA is a planning tool to enable decision makers to look before they leap.
Second, I’d like you to know that industry has had their kick at the can on this bill. Oil and gas, nuclear, hydro and electricity have all been deeply involved for the past three years in the development of this bill. They all sit on the Multi-Interest Advisory Committee. They all appeared before the expert panels and the house committee that reviewed these laws. They all got to see and respond to the 2017 government discussion paper setting out the bones of the legislation. They all got to appear before the House of Commons committee that reviewed this bill. Throughout, they have lobbied government extensively. This bill is already a compromise. It’s a major departure from the recommendations of the expert panel reviewing EA because the government has surrendered to industry demands. To further weaken it would render this bill as bad if not worse than what we currently have.
I’ll reiterate: The kind of amendments industry is requesting is what got us here in the first place. Canadians voted for sustainability. I believe it is incumbent on the Senate to respect those wishes.
Third, just a word on jurisdiction because that has been a hot topic on the bill. It is critical that the feds have a seat at the table in environmental decision making. This bill does not undermine provincial jurisdiction. Just because the provinces have jurisdiction over natural resources in no way derogates from federal authority over things like fisheries, navigation and climate. As the Supreme Court of Canada has recognized, impact assessment is simply a tool to inform federal decisions about things that are within its constitutional authority. What cooperative federalism recognizes is that decisions are stronger and the environment and communities are better protected when all orders of government are at the table. You wouldn’t decide on your child’s university or whom to entrust with your retirement savings without first informing yourselves. Neither should the federal government approve major projects without taking a good, hard look at the evidence.
With that said, we’d like to recommend six ways that Bill C-69 can be strengthened for the environment and for communities. The first is for the impact assessment act to insert a legal bottom line to ensure that projects cannot be passed if they will undermine sustainability.
The second is for the proposed Canadian navigable waters act to add environmental effects to the list of factors that must be considered when deciding to approve a work so that it truly can act as the environmental safety net it has claimed to be.
Then the proposed Canadian energy regulator act should do four things:
First, remove the requirement for the commission to conduct its hearings expeditiously as that requirement contradicts fairness, rigour and reconciliation.
Second, remove the limitation that the commission only review effects that are directly related to the projects in order to provide more clarity and to better ensure consideration of cumulative effects.
Third, enhance the consistency in the bill and independence of decision making by allowing the commission to reject certificates for pipelines just as it can under the bill for transmission lines.
Finally, strengthen the judicial oversight by removing the privative clauses. Thank you very much. I look forward to your questions.
Joshua Ginsberg, Lawyer and Director of Legislative Affairs, Ecojustice: Thank you. I do appreciate the opportunity to be here on the unceded traditional territory of the Algonquin people to discuss Bill C-69 with the committee.
I represent Ecojustice, a national environmental law charity which since 1990 has provided free legal services to Canadian conservation groups and other concerned citizens working to protect the environment. In that capacity, we appear at all levels of court across the country, including on matters related to environmental assessment and, indeed, before bodies conducting environmental assessment. It’s that experience which informs my comments today.
I also submitted a brief in concert with West Coast and others recommending some amendments. Like Ms. Johnston, I will not speak directly to them but I am happy to answer questions. I will make introductory comments and speak to four other ways that this bill can be strengthened.
Now, senators, Bill C-69 is not perfect. It falls short of delivering the comprehensive reform of Canada’s approach to environmental assessment that Ecojustice and other groups have advocated. However, the bill is a significant step towards modern, effective, federal impact assessment. It fixes a system that everyone agrees is broken.
Impact assessment is about planning the best way to use our public lands and resources. The proposed impact assessment act, on which I will focus my comments, recognizes that it is no longer enough to simply avoid or minimize significant adverse environmental effects which is the current standard. Instead, we should use public resources for projects that enhance overall well-being. The act acknowledges the obvious: A sustainable economy, a stable climate and gender equity are critical to our well-being, and no major project seeking to exploit the public commons should be blind to them. However, some of the amendments proposed to this committee by industry groups would undermine the bill and leave us, after all of this time and effort, in the same untenable place in which we started.
Some industry associations say assessment considerations such as climate should be removed because impact assessments are not forums to debate policy. But, senators, the act does not open up any of these public policies to debate. It simply makes them mandatory considerations when determining whether a project is in the public interest or not.
On those policy goals, I will give my first two recommendations to strengthen the act: First, the assessment agency, the new independent agency to be created under the act, should have a clear instruction to provide its recommendations on the public interest factors that will ultimately ground the decision.
Senator Woo, this speaks to your question about the nexus between sections 22 and 63. The agency should actually be opining on everything, so that when it comes to that final decision, the decision maker, be it the minister or cabinet, has a full picture.
Second, the goals of the impact assessment act should equally apply to projects on federal lands and those with federal proponents or those that are federally funded. Right now there is a separate system but the actual policy goals don’t apply. I am happy to expand on that later.
Some provinces and industry groups have expressed concern that Bill C-69 introduces discretion into the decision making. That’s inaccurate in that Bill C-69 does not expand the discretionary powers available to the minister from what exists today under CEAA 2012. In fact, it imposes additional constraints on that discretion. Under the current act, CEAA 2012, responsible authorities are tasked with making a highly discretionary determination as to whether a project’s negative effects will be “significant” and then there is a decision, without having to provide reasons, on whether those effects are “justified” in the circumstances.
In contrast, under the proposed new law, the decision maker is constrained by the requirement to consider legally prescribed factors. Far from introducing additional discretion, the new framework provides far greater certainty and clarity which everyone involved in the process will appreciate. The impact assessment act increases transparency and accountability by requiring the decision maker, remarkably for the very first time, to publicly explain its decision. That has never been the case until now.
Strangely, while industry associations are complaining that the impact assessment act is too discretionary, they are also urging the Senate to adopt amendments that actually expand the discretion. So they want the agency to have the power to define the scope of the project to exclude elements from consideration. That, senators, was the site of pitched litigation battles in the original CEAA in 1992. The Supreme Court rejected that approach in a case we had and the existing law actually omits it. So we shouldn’t be making retrograde changes now that resurrect things that didn’t work.
To conclude, there are two aspects of the bill in which discretion could be further reduced. One is that we should be assessing all major projects under federal jurisdiction, everything that makes the list.
The impact assessment act, remember, is meant to review only those projects with the most potential for adverse effects in an area of federal jurisdiction — the biggest and most impactful projects. But the impact assessment act does grant discretion to allow even those select few projects to go unassessed. We say if a project is potentially impactful enough to warrant being on this project list, it ought to be assessed subject to a very narrow escape clause.
The last thing is that regional and strategic assessments, which my friends Mr. Elgie and Mr. Lindgren spoke to at some length, might be the most important part of the bill in that they give clear directions to the public and industry on what is and is not acceptable in future projects, but their use is still discretionary in the bill. To ensure that those assessments actually occur, the impact assessment act should require the minister to identify which regional and strategic assessments should be carried out and set a timeline to get them done.
I look forward to your questions, expanding further on what I’ve said and to discuss any other subject.
The Chair: Thank you very much.
Senator MacDonald: I thank both of you for being here. I’m a little surprised to see both of you here. You represent two of five groups that throughout the campaign, in the last six weeks in the media and with the literature and correspondence to the Senate, are demanding that we don’t hold hearings, that we don’t speak to Canadians, that all the important work was already heard from.
I guess I’ll go to the West Coast Environmental Law first. There’s a quote on your website:
West Coast Environmental Law is working to prevent the expansion of the tar sands —
— oil sands, it should be called —
— by opposing pipelines and tanker projects in B.C. . . . .
Since your organization opposes the development of all new pipelines to do oil sands, it approves of Bill C-69, does that mean that Bill C-69 will help you oppose new pipeline development?
Ms. Johnston: That’s an excellent question. The bill will create more transparency around climate effects. One of the things we support about the bill is the introduction of the climate test. It’s really important to remember that the climate test is not just to consider climate but to consider the extent to which the project will help or hinder Canada’s ability to meet its climate goals.
It’s a very important distinction from just effects because historically environmental assessments have struggled to identify the significance of climate effects. What leading thinkers have been proposing for years, and what the general trend has been to do, is to use things like the Paris Agreement and various policies like the pan-Canadian framework, the mid-century target, the 2030 goal, as proxies.
Providing that the strategic assessment of climate that the ECCC is currently doing nudges assessments in that direction, the act will help to better bring to light the climate impacts of projects. Problematically, from our perspective, the act — and this is why we’re requesting a legal bottom line — still allows decision makers to approve projects that would greatly hinder our ability to meet our Paris Agreement obligations.
What’s better about the bill is the transparency provisions, especially with the reasons for decision and the articulation of the climate test, but it’s certainly no guarantee.
Senator MacDonald: You didn’t answer my questions; I’ll ask you again. Do you believe Bill C-69 will help you oppose new pipeline development in Canada?
Ms. Johnston: I did answer that question. It will help us better identify the information and help the public better trust decisions about things like pipelines. I certainly do not think that this is the no-more-pipelines bill that industry is saying it will be.
To that end, you’re right, we do oppose the expansion of the tar sands because we’re concerned about catastrophic climate change. I don’t see this bill as being much of a guarantee to help us with that.
Senator Cordy: Thank you for sharing your thoughts on the bill.
Ms. Johnston, you spoke about the importance of adding environmental effects and decision making for the proposed navigable waters act. Could you expand on that? You were going through your points fairly quickly.
Ms. Johnston: Historically, the original version of the act was the Navigable Waters Protection Act. It was turned in 2012 to the Navigation Protection Act, which is an important distinction. Before 2012 the Transport Canada website recognized that the Navigable Waters Protection Act was a statute that provided environmental protection and that was the purpose of the bill.
In the last election, this government ran on a platform of restoring lost protections and introducing modern safeguards. This is the most disappointing part of the bill because it doesn’t do that, Part 3.
When the government made the decision, in the impact assessment act, to only look at major projects, it stated that its rationale for that was in part because of statutes like the navigable waters act and the Fisheries Act would act as safety nets to capture the environmental effects of the smaller projects.
Right now the Canadian navigable waters act, in the list of factors to consider in section 7, when Transport Canada is deciding whether to approve what works, in that complicated scheme, actually need a permit, environment is not listed as a factor to consider; so it can’t be that safety net for the environment if the environment isn’t in the act.
Senator Cordy: Mr. Ginsberg, you said the assessment agency should have clear direction. You mean directions within the bill itself?
Mr. Ginsberg: Yes, that’s correct, senator. Right now the bill directs them to provide a report to the minister or cabinet, which should contain their opinions on adverse effects, but what it doesn’t explicitly require them to do — not to say that they could not do this or they might interpret their mandate as including this, but it doesn’t explicitly ask them to opine and provide an opinion on how the section 63 factors, which are the decision-making factors, ought to shake out in the circumstances of this assessment.
For clarity’s sake, and so that the decision makers can benefit as much as possible from the expertise of the agency, or the review panel, as the case may be, the legislation should be a little clearer.
Senator Mitchell: Thanks to both of you. My first question is for Ms. Johnston, although Mr. Ginsberg, you are welcome to jump in.
The argument has been made that part of the change represented in this bill is to the various boards — CER changing from NEB and certain changes to the CNSC and the offshore boards — and those changes are premised upon the idea that people have lost confidence in those boards. There are those who argue that is not the case. I believe it is the case. Could you comment on whether you believe it is the case, and, if so, why?
Ms. Johnston: It’s a great question. There are a couple of things. One, there have been public perception issues, and I can’t really speak to the Canadian Nuclear Safety Commission because we don’t have nukes in B.C. For the National Energy Board, we have been engaged in National Energy Board — and I’m using air quotes deliberately and I’ll say “air quotes” for the transcript — assessments by the National Energy Board.
There’s the Energy East panel that had to step down because they had been in cahoots with industry and secret meetings. That’s the most public-facing part of it. But the National Energy Board has demonstrated that it is not very proficient at engaging the public in a way that makes them feel like they’ve been meaningfully engaged and heard.
Whereas when I’ve represented clients on environmental assessments where the agency has been the secretariat to a review panel, the public tends to walk in feeling like they’re not sure whether they can trust the agency, and they walk out of the assessment feeling like these guys are independent. They may not deliver what we’re asking for, but they’re not stacking the game against us. That is the opposite experience with the National Energy Board.
It’s not just a matter of the broader public perception and potential corruption, it’s also just in how the National Energy Board is overly formal. It’s highly unfriendly to the public and people feel like the game is rigged.
Senator Mitchell: My second question concerns a suggestion that there might be some advantage to having the panel, the proposed impact assessment agency of Canada, when it makes its report, actually include an explicit recommendation in that. In clause 51, it seems that that’s almost there if not absolutely there. It also seems to be that is certainly something that the energy industry wants. It might be, in my recollection, something that environmental activists might actually want as well. Believe it or not, there could be agreement on this.
Could you comment on that? You’re nodding your head.
Mr. Ginsberg: Certainly, senator. I’m excited that there might be a rare area of agreement between the industry and ourselves. If that’s the case, I’m happy to hear that and certainly welcome it.
You’re right about proposed section 51 with respect to review panels. It’s almost there but it’s not quite as explicit as it could be about the recommendation. It says “prepare a report with respect to the impact assessment that sets out the effects in the opinion of the review panel likely to be caused by carrying out of the designated project.” However, it doesn’t quite go so far as to say, “and how those effects influence the factors under section 63.” There’s still one missing piece.
Senator Woo: When I met with some of you some months ago, you came with the Mining Association of Canada. I recall the meeting and was struck by the degree of consensus in the group consisting of both industry and environmental groups. All of you said you didn’t get what you wanted but you were willing to strike a compromise.
My sense at the time was that you were satisfied with the bill as it stood. Now you’re coming to us with a whole new raft of amendments. I want to step back a bit and try to get some perspective on this. What I worry is happening here is that we’re in this ratcheting kind of game that’s happening where the industry participated in the process, according to what we’ve heard. I guess they weren’t happy with the outcome — I don’t know why they didn’t say it loudly enough during the process, but they were very unhappy with the outcome — so they are making a vigorous effort to lobby us. Maybe you guys — now I’m putting words in your mouths — are feeling a bit worried that the consensus is broken, that the deal has been broken. You’re now going to bombard us with your more “extreme” recommendations.
That’s not a good way for the Senate to operate. That’s not a good way for senators to make decisions, where we’re being kind of played off on both sides.
Mr. Ginsberg: Maybe I’ll address that first. Thank you for that.
It is true that we have a great relationship and consensus view with the Mining Association of Canada. That was a very productive relationship. It’s also true, senator, that if the bill was passed as is, without amendments, it would still be an improvement over what we have.
If we come to you now with some additional thoughts, it stems partly from what I said at the beginning, which is that no one got everything they wanted. There are a few select areas where the Senate has an opportunity to make a small tweak and make fairly substantial improvements. We did try to confine it, senator, to the raft in your analogy, rather than the transatlantic cargo vessel that perhaps you’ve seen from other groups. We really have tried to focus on the things we think are the very most important changes.
Ms. Johnston: I would add that when we did meet with you, in the fall, we did say that we would likely be bringing a few select amendments, which we have tried to keep within what we think are the four corners of the legislation and are necessary but doable improvements. We’ve run them by government.
To your point, yes, I think a lot of us are beginning to regret having said from the outset that this bill is better. If we had been kicking and screaming as much as oil and gas and the nukes have, then we might be in a stronger position now. Instead, we tried to play the reasonable game, which is unusual for an environmental coalition. Now we know why.
Senator Woo: Thank you.
Senator Patterson: I’d like to ask about Ecojustice. I noticed your website states:
Ask one of our lawyers why they went to law school and you’ll likely hear a variation on a theme: Strong, well-enforced laws are the best tools we have to protect wilderness and wildlife, to keep dirty fossil fuels in the ground . . . .
Based on that, is it accurate to say that Ecojustice wants to keep Canadian oil in the ground? Related to that, since your organization opposes the development of the oil sands and approves of Bill C-69, does that mean that Bill C-69 will help you prevent the development of the oil sands?
Mr. Ginsberg: Thank you for the question, senator. I thought the follow-up was going to be and why did you go to law school? It was something else but that’s all right. I’ll answer that too.
Like our friends at West Coast Environmental Law we are, of course, very concerned about the ability to continue expanding our fossil fuel infrastructure while meeting our commitments under the Paris Agreement, which we have an imperative to do immediately or risk absolutely catastrophic effects for Canada.
A report was released today in which Canadian scientists confirmed what the international community has long been warning us about, which is that Canada is being hit harder and faster by climate change than almost anyone else in the world. If we don’t do something now, we are looking at the imminent flooding of our coastal cities and we are looking at increasing health effects and extreme weather events that cost Canadian lives. So, of course, we’re concerned and, of course, we’re passionate about this issue.
As to the bill, it will provide the information and require the consideration of this critical factor when we make big decisions. That is a good thing.
Senator Patterson: You also said, in your submission to the House of Commons, that Canada has some of the weakest environmental laws in the industrialized world.
Offshore oil environmental assessments in Newfoundland and Labrador take an average of 4.5 years compared to two years in the United Kingdom and eight months in the U.S. gulf coast. A study by WorleyParsons in 2014 found that punishments for non-compliance with environmental rules are more severe in Canada than in Norway, Australia and the U.K.
What data was your statement based on, namely, that we have the weakest environmental laws in the industrialized world?
Mr. Ginsberg: It’s based on our experience in the courtroom and litigating cases in which we too often see that run away discretion prevents meaningful action. That’s why we were heartened to see that in this bill discretion is actually constrained rather than expanded.
Senator Patterson: So you took quite a subjective viewpoint rather than one based on any study or data?
Mr. Ginsberg: The results and the jurisprudence are not subjective. They are quite real.
The Chair: Thank you very much
Senator Carignan: My question is for Mr. Ginsberg. You said that you did not feel the need to amend the act to regulate the minister’s discretion. However, a number of people have talked to us about the need to regulate the minister’s power. You also said that mini nuclear power plants should be the topic of consultations. As you know, CANDU nuclear power plants have been sold to SNC-Lavalin. With all the lobbying power such a group has — we have seen its effects over the past few weeks — don’t you think it is worrisome that the minister’s powers are completely discretionary when it comes to nuclear power plants, for example? I am not saying that I agree or disagree with this, but that is a flagrant example. Don’t you think it is worrisome that the minister’s power is not better regulated?
Mr. Ginsberg: I think I have understood your question. However, I will answer in English to make it clearer.
Senator Carignan: No problem.
Mr. Ginsberg: If I understood your question correctly, in the face of what we understand to be the power of lobby groups, is it a concern that the final approval still rest with the minister and should there be some sort of intervening factor there.
Senator Carignan: Yes.
Mr. Ginsberg: Excellent. As I said in my introductory comments, and one time subsequently, the act does not eliminate all discretion. That’s very clear. The decision does rest with the political decision makers. For better or worse, those people are politically and electorally accountable. The fact that the discretion is still housed there does run counter to a recommendation in the expert panel report which was these things should be done by an independent commission. There’s an argument on both sides, and in the end we don’t object to politically accountable decision makers making the final decision as long as that discretion has some limits, is defined by some legal guidance. That will mean that they cannot be influenced, for instance, to ignore a criterion. If they did that, then their decision would be subject to judicial review and would not stand.
It’s about taking into account what the law requires, and it’s about providing adequate reasons for that decision, which makes your decision — the ultimate decision — more legitimate.
We are satisfied that this act goes a fair distance towards accomplishing that goal.
Ms. Johnston: I represented clients on the environmental assessment of the Site C dam. They picked up cans out of ditches, took out second mortgages on their homes, held dances and bake sales all so they could participate in good faith in that massive project that was flooding out some of their lands.
The assessment panel that was appointed by the federal government concluded the project’s impacts could not be justified because B.C. Hydro, the proponent, hadn’t proven the need for the energy. Cabinet approved it anyway. No reasons. That was shocking. That’s what CEAA 2012 does. So your question is absolutely bang on because that’s what we’re up against. How do you trust a process where the feds can approve a project in light of absolutely significant impacts and no proven need for the project and no justification.
This bill, I think, still leaves a lot of wiggle room for that to happen. I’m greatly encouraged by the requirement for reasons for decision, and the fact that the heading above that is detailed because I’m hoping that’s what it means.
We asked for a lot of amendments in the House of Commons, among which were much more stringent bottom line tests so the feds couldn’t approve projects with significant adverse effects, unsustainable projects, and also to require the decision maker to provide justification for any adverse effects. I still think that that would make the bill a lot stronger. We are trying to be really careful with the amendments that we ask for, but you’ve illustrated one of the most fundamental issues with environmental assessment in Canada.
Senator McCallum: Thank you for your presentations. I want to go back to cumulative effects. This time it’s with the orphan wells in Alberta.
The C.D. Howe Institute looked at the number of wells that are no longer producing and not fully remediated, and it’s 155,000 in that one province. To clean up one well would be $304,000. So it would amount to $47.1 billion in future reclamation costs.
When I was reading one of the books, it said that economic development seems to happen to clean up past messes and to try and clean it up. But when we met today with a group, they told us that Alberta had been given money to reclaim some of the orphan wells and they were not able to do that many.
Is it possible to be environmentally responsible and to encourage economic viability when there is so much to clean up right now? How do you make that balance? I understand we need that economic development to happen, but there was so little monitoring before that now it seems we’re paying for that cost today. Is it possible to do the two together?
Mr. Ginsberg: That’s a very important question. Thank you for raising it. First of all, maybe I’ll just note that Ecojustice was pleased to participate in the recent Redwater decision at the Supreme Court of Canada which confirmed that when there are liabilities from orphan wells, those companies cannot prefer the interests of other creditors before actually cleaning up their mess. Hopefully that goes some way towards addressing that deep systemic problem you’ve identified, senator.
With respect to the bill, I think it speaks to the importance of adding holistic considerations about global well-being, looking into the future of the economic viability not just of one particular company or even the country as a whole but the people and the community that are going to support to host that project. That has to be taken into account too. There has to be adequate provision for the cleanup to ensure that other opportunities, other uses of that land, are not unduly impinged. And that goes equally and perhaps more potently for Indigenous uses of that land, which are often, as you pointed out earlier, for subsistence purposes.
The requirement of mitigation measures and taking a more holistic look, hopefully, will go some way towards helping us achieve the balance that you refer to.
Senator Wetston: Thank you for coming. I want to get some clarification if I could. It’s really a very specific question around climate change and criteria. I certainly understand the concerns that we all have regarding climate change and the need to address it. The question, of course, is how? In dealing with climate change, it obviously has a pretty significant economic impact as well. I’d like to understand your view on the section 22 factor if I may and, of course, the consideration of climate change. I wonder about this.
You would probably agree that if a proponent is advancing a case to build an interprovincial pipeline, for example, they would have a burden to present evidence that would support that. I think there would also be a lot of interveners and other stakeholders that would have a point of view and would be considered by, let’s say, a review panel.
You indicated this a moment ago but just to get some clarity, Ms. Johnston, what kind of evidence could a proponent lead in any way to meet the burden they would have on that requirement, as an example, if any?
Ms. Johnston: I’m glad that you use the word “burden.” That was another amendment we were requesting in the house. In my experience, the burden is not on the proponent to prove their evidence. The burden is on the public, Indigenous peoples and any interveners to disprove proponent’s evidence.
So there’s a presumption in environmental assessment that the evidence that’s led — it’s the proponent who actually write the environmental assessment and then the assessment is reviewed by the agency or a review panel.
So there’s a default assumption that the information that the proponent provides is the best available information.
Senator Wetston: I see.
Ms. Johnston: We could get into the technicals of what exactly the climate considerations are, but if I understand your question you’re thinking —
Senator Wetston: I never know what I’m thinking. But it’s okay. I don’t mind you suggesting it.
I’m trying to understand how these kinds of matters would proceed and some of the elements. I think what you’re saying is there’s no burden on our proponent and that, because it’s an impact assessment or an environmental assessment, it would fall on Indigenous groups or environmental groups. They would have the burden to disprove as opposed to an onus. That’s an interesting matter and I would like to think about that. Let me take it a step further.
If that was the case, it’s my understanding that let’s say a review panel report goes to cabinet. That will be one report but will have two purposes if it’s a pipeline. There will be a component which deals with the important conditions that may be associated with a certificate of public convenience and necessity. I think that’s correct. I would think that part of the report, if necessary, would revert back to a burden being on the proponent. Would you not think that would be the case?
Ms. Johnston: I suppose the proponent has to prove to the commission, under the bill, that it meets the public convenience and necessity test. In terms of the scientific basis for that evidence — and I’m hoping that, with the impact assessment act and with the emphasis on Indigenous knowledge, it will be heightened — I’m tempted to say it’s tended to be a low threshold. I think the greater issue has been the scoping determinations made by the National Energy Board to rule out related effects like upstream and downstream.
Senator Wetston: Or what may have occurred on the TMX case with marine shipping. Would that be an example of that?
Ms. Johnston: Yes, TMX. And with Line 9, it was the related effects of the pipeline, the upstream activities and downstream. Yes, it was the TMX decision that led to the Canadian Association of Petroleum Producers asking for the agency to be able to scope out project proponents.
Senator Wetston: I am happy to go second round if there is an opportunity to do so.
The Chair: There is no second round, sorry.
Senator Neufeld: Thank you both for being here. I want to put a couple of things on the record. One, the House of Commons committee — and, Ms. Johnston, you say they all got to appear before the House of Commons committee — reviewed this bill and the bill is already a compromise.
According to my notes, there were 117 witnesses; 49 were from government. They held 14 meetings. However, there were no individual pipeline companies; there was no province or territory government; there was no port authority; there was no individual natural gas company or energy service company that could attend.
There were a massive three, I guess. Only one, namely Suncor, was able to appear before the house committee. The other one was CAPP and the Canadian Energy Pipeline Association. I think it’s fair to put that on the record because that’s what happened at the house committee.
Secondly, I live in Fort St. John. I know about BC Hydro and Site C dam. They didn’t use the BCUC because that would be another cost to the public. Hydro had already done all the work needed. I know it wasn’t sufficient for maybe some folks like you, but it was.
I have to ask you a question about project lists or the scope of projects. That’s one of the issues that the industry has. Do you agree that the project list should be described in the legislation, or should it come in regulation that can be easily changed by anyone without ever going before Parliament again? Wouldn’t it be better to put it in the legislation?
Ms. Johnston: For the record, I said the industry associations all appeared before the house, which is true.
I agree with Mr. Elgie. I think that the legislation is too rigid. Some things need to be in regulations. I think that having some triggers in the legislation itself, in the impact assessment act, would be very helpful. Under the original Canadian Environmental Assessment Act the comprehensive study list was a regulation, just as in CEAA 2012 the project list was in the regulation because, as new projects come down the pike, as new technologies are developed and as new impacts start to be of concern, you need to have the nimbleness to be able to amend the project list to add, remove or alter thresholds. In my opinion, more legislative clarity on the list and maybe some legislative triggers would be good.
Mr. Ginsberg: Thanks for that question. As the previous panel said, one of the unfortunate changes when CEAA 2012 came into effect was the loss of the trigger system, which was a legislative way to get projects to an assessment. However, even that required some regulatory guidance in order to tell us which projects would be, for instance, a comprehensive study and what the laws are that triggered the assessment.
It’s very difficult to get away entirely from regulatory assist when it comes to figuring out which projects are assessed. I would also have liked to have seen a list of projects to have some idea of what this act will ultimately apply to, although even if the list remains exactly the same, the legislation would improve the overall process and, therefore, is worthwhile.
The Chair: Thank you very much for your testimony and your answers.
We have our next and last panel. For the third portion of this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources, we now welcome Andrew Roman, Retired Lawyer; and by video conference from Montreal, Martin Papillon, Associate Professor, Université de Montréal, as an individual.
Thank you for joining us this evening. I will invite Mr. Papillon to make his presentation.
Martin Papillon, Associate Professor, Université de Montréal, as an individual: First, thank you for giving me an opportunity to appear by video conference. I appreciate it.
I will testify this evening in my capacity as researcher and expert on Indigenous issues, more specifically in the area of Indigenous governance. I have had a comparative interest over the past few years in the role Indigenous peoples play in decision making in land management and natural resources in various countries, including Canada. So my contribution to the study of Bill C-69 will be limited to matters more specifically related to Indigenous peoples. At this stage of the study of the bill, my objective may be less about making specific recommendations on the wording of the bill or specific provisions, but rather about inviting committee members to think, in a general sense, about how this bill, as it is drafted, contributes or not to the important reconciliation project between Canada and Aboriginal peoples.
Reconciliation is a broad project that may seem abstract. It is a sometimes general rhetoric paved with good intentions. It is often said that governments talk about reconciliation without truly taking action. There are nevertheless guides that can provide us with indications on what would enable us to conclude that such a bill is consistent with the Government of Canada’s commitments in terms of reconciliation with Aboriginal peoples. The Truth and Reconciliation Commission has 94 calls to action, which suggest to the government to make the United Nations Declaration on the Rights of Indigenous Peoples the cornerstone of reconciliation. There are also indications for the government on how that reconciliation is perceived. The main principles have been defined by the government to facilitate reconciliation and a harmonious relationship with Aboriginal peoples. We have before us a bill that, if well done, can play an important and fundamental role in reconciliation with Indigenous peoples.
You have no doubt heard testimony to the effect that the issue of recognizing the inherent rights of Aboriginal peoples, systems, legal traditions and Indigenous governance over land is truly at the heart of this bill. So it is important to wonder about the value of this bill in light of those elements.
Basically, the question I’m asking today, to which I will without a doubt offer too brief of an answer, is whether Bill C-69 is consistent with a reconciliation-based approach. Like any good university researcher, I would answer yes and no. It depends. I would say, in part, that this bill has some very good elements and other elements that should perhaps be improved upon or that leave something to desire. I will first talk about the good parts, if I may, and then about elements that seem more problematic to me.
The first positive thing to point out is the fact that this bill puts Aboriginal peoples, Aboriginal rights and Aboriginal peoples’ interests at the heart of the impact assessment process. That aspect seems essential to me. In the preamble, reconciliation among Aboriginal peoples is brought up. There is also the development of the nation-to-nation, government-to-government relationship. Those are principles that should, in theory, guide the implementation of the act. Those principles are somewhat broad and general, but they constitute a clear improvement over what was there before, and that should be pointed out.
The preamble of each of the acts this omnibus bill covers is a reminder of Canada’s commitments toward the principles stated in the United Nations Declaration on the Rights of Indigenous Peoples. The Truth and Reconciliation Commission makes the declaration one of the cornerstones of reconciliation. In the preamble of those acts, a commitment is made to comply with its intent. That principle, once again, is somewhat vague and general, but it does have its place and represents a significant improvement, as principles from the declaration are being included in a bill.
Another major improvement is that Aboriginal authorities are being recognized as jurisdictions. In English, it is a matter of jurisdictions, and in French, we are talking about instance. There is a presence and recognition of the fact that Aboriginal authorities can play a certain role, but they also have some authority in the project approval process. In other words, Aboriginals are no longer only stakeholders, interest groups or concerned citizens, but are rather jurisdictions with an authority whose responsibility is recognized. Unfortunately, that jurisdiction is not defined in the bill. However, the simple fact of recognizing Aboriginal authorities as jurisdictions is a significant improvement.
Another good thing is that Aboriginal knowledge is recognized and has an important place in the project assessment process. The Impact Assessment Agency of Canada must show in its report how Aboriginal knowledge has been taken into account in project assessment. Intellectual property of that knowledge and the confidentiality requirement are also recognized, when necessary, in relation to that knowledge. Those are important elements, and we could talk about them in more detail, but I want to highlight them right away.
Another thing — and this is a fundamental aspect — is that the impact on Aboriginal peoples’ rights is now an explicit criterion in project assessment. This is without a doubt the most important improvement in the area and it is considerable. The impact of projects on the exercise of rights recognized in section 35 of the Constitution Act of 1982 must now be formally taken into account as one of the assessment criteria.
The bill also promotes the participation of Aboriginals in the entire process from the outset. Without going into details, I think this element is very important. It has a much more global vision of the role of Aboriginals, from beginning to end.
Finally, we may be talking about details, but these aspects show the importance given to Aboriginal peoples. The Impact Assessment Agency of Canada is called upon to develop not only its expertise and its know-how in Aboriginal issues through consultation committees, but also resources specifically allocated to the agency — at least, the bill mentions the possibility of developing those resources. The agency is expected to collaborate closely with Indigenous jurisdictions, especially in strategic assessments, but also through negotiations of agreements and protocols as part of the consultation processes. Those are existing practices, but they are being formalized here and appear extremely important to me.
I will now talk about limitations and areas for improvement. The recognition of Indigenous jurisdictions, as I said, is a very good thing. However, I think that component has two important limitations that are still in the act, although certain changes have been made to the bill as originally introduced in the House of Commons. The definition of Indigenous jurisdictions remains too restrictive. Recognized jurisdictions are those that are recognized formally by the Crown through legislation, treaties or agreements. For example, we may be talking about band councils, tribal councils and self-governments.
One of the keys to reconciliation is the possibility of self-determination. In its simplest meaning, self-determination is the ability of Indigenous peoples to decide on their own who they are, but also who represents them. In the bill, it is somewhat taken for granted that the government is to decide what the legitimate authority that represents Aboriginals is. However, that aspect seems somewhat problematic to me. We recently saw a concrete example of issues that can lead to. In the conflict surrounding the GasLink pipeline in British Columbia, we saw the importance given to the authority of traditional chiefs in that process, and the conflict and tensions it caused with government consultation mechanisms, but also with agreements negotiated with the company by the band council. The issue of defining Indigenous jurisdictions seems problematic to me in this case. It would be beneficial to let Aboriginals decide on their own what the jurisdictions that represent them are.
Along the same lines, regarding the recognition of Indigenous jurisdictions, the nature of the authority recognized for them is very vague. That is a good thing, as that authority can be extended considerably. Some will see this aspect as problematic. However, I think that what is recognized here, first, is limited to what is recognized in Canadian law. There are very few elements in the bill on the possibility of recognizing, in a broader sense, the inherent rights related to Aboriginal title or the coexistence of Aboriginal and Canadian law systems. That element is at the heart of the United Nations Declaration on the Rights of Indigenous Peoples, but also of the 10 principles developed by the government to improve its relationship with Indigenous peoples. Yet that language is completely absent from the bill.
The importance given to Aboriginal and treaty rights in the bill is another highly problematic aspect. Those rights are recognized as a project assessment criterion. However, according to my interpretation — and we can discuss this — rights are recognized as one assessment criterion among others. This issue has been highlighted a number of times, unless I’m mistaken, over the course of House of Commons hearings.
The Chair: Mr. Papillon, your time is up. I will let you wrap up.
Mr. Papillon: I have one minute left, if I may.
The Chair: Okay.
Mr. Papillon: Aboriginal and treaty rights are one criterion among others. In its recommendations, the expert panel suggested that Aboriginal rights be a transversal criterion applied to all the assessment components. To my mind, that is a very good recommendation. However, unfortunately, it has not been retained.
I will conclude by talking about the nature of Aboriginal participation. That is something of an “elephant in the room” of this bill. It completely dodges the issue of the place of Aboriginal consent in the process. The United Nations Declaration is mentioned in the bill, as are consultations, but there is no mention of circumstances in which Indigenous peoples’ consent could be required in the development of natural resources when projects affect Aboriginal and treaty rights. Yet that is at the heart of the United Nations declaration and of reconciliation. We could talk about it during the question and answer period, but the expert panel has proposed a way to implement prior and informed consent, and that seemed like an excellent option to me. But the government has decided not to follow those recommendations and rather to completely avoid the issue. I don’t think that point of view is consistent with a reconciliation objective. To me, it is without a doubt the most problematic aspect of the bill.
The Chair: Thank you very much.
Andrew Roman, Retired Lawyer, as an individual: Madam Chair, and honourable senators, thank you for inviting me. I’m here representing no one but myself, and I have no political affiliations or any other affiliations. I recently retired after some 45 years of practising law. I think it’s important that you understand my clients have included First Nations, environmental groups, corporations and governments. When I’m looking at these issues, I’m acting in my own mind as if I was representing one of these groups and thinking how would I advise them if they asked me about Bill C-69. That has been my approach to it.
I would come to the conclusion that I share some of the arguments that the environmentalists have presented earlier this evening, for example, that standing rules and privative clauses are mostly a waste of time and don’t accomplish very much.
I would also agree with some of the comments Mr. Elgie made about why you can’t solve all the world’s problems and all of the broader issues just through this kind of assessment. For example, in response to a question by Senator McCallum, I would say that if you want to protect the caribou why do it only when there is a pipeline application and why do it at the expense of the pipeline? Protect them properly and not just when there happens to be an application. You can’t solve all the world’s problems through an impact assessment.
Bill C-69 is seriously flawed for two reasons, and one of them does affect First Nations very significantly. That is, it retains the worst problem in the 2012 act, which is to separate those who hear from those who decide. That, I think, is a fatal flaw because if the cabinet makes the decision but hears none of the evidence and the people who hear the evidence but make none of the decisions, you’re bound to have problems. I think that is a special reason why First Nations will have problems with it. I’ll go into more detail on that later.
Second, if you come on top of what happened with Trans Mountain in the 2012 act, you might as well call Bill C-69 the no more pipelines act because it does have a bias in it. That bias will deter pipeline applicants and then you won’t be able to have more applications and you won’t find out how well the act is working with the most difficult cases because there won’t be any.
One of the most important numbers that you will never understand here and the government can’t give you is how many people have not applied because they were deterred from applying. Those applications you will not see and that’s where there will be a problem.
When the 2012 act transferred decision-making power from the NEB to the cabinet, this destroyed the integrity of the consultation process with First Nations. I will explain why later. It also destroyed the transparency of the decision-making process. Both of those are supposed to be purposes of this act, which won’t be achieved any more than they were under the previous act as long as that gulf between those who decide and those who hear continues.
I suggest that there is an obvious bias — and this is reflecting what Mr. Elgie said earlier — in the appearance that parts of proposed section 63 require the cabinet to consider adverse effects but not positive effects and not to balance them. That language is a deterrent. I think they should consider both, which is the way you arrive at a balanced decision.
Third — and I think this is important; I will give you some numbers on this later — Bill C-69 requires too much work to be done in too little time. A lot of that is of questionable value and requires a lot of speculation about things that serious evidence can’t be presented on.
Legislating time limits is useless. The experience over the last 25 years demonstrated that. The hearings will take as long as they take. You can’t shut them down halfway because you’ve reached the statutory deadline. The minister will have to extend the time repeatedly. If you want to reduce the length of the workload, cut the workload.
I recommend that all of you should read the report that came across my attention after I prepared my written papers, and this is in the Energy Regulation Quarterly of September 2018, and it’s entitled Federal Energy Project Reviews: Timelines in Practice.
It showed, to my surprise, that Canadian federal assessments can take two to three times as long as assessments in the U.S. under the existing law, where there are only 12 mandatory requirements and there will be 20 under the new one, almost double.
For example, the Northern Gateway pipeline was eight years, Mackenzie Valley pipeline six years, the Jackpine Extension was another six years, Darlington was five and a half. By the time you get to the end of these, all the facts have changed and you have to start again.
This kind of thing cannot go on and is not likely to work. I think you have to cut the workload.
The fourth thing is the Crown’s duty of consultation with First Nations is problematic and will continue to be problematic because the Supreme Court of Canada and the federal courts have said different things in different cases under different circumstances. I don’t think anyone knows how to do it right. If I were asked to consult, I wouldn’t know how to do it right or how to advise anyone to do it right, despite everyone’s best intentions.
There’s a lot of uncertainty that can only be corrected, I would suggest, because this is not part of the written Constitution, by means of a stated case, and I’ve described how that should work in my paper.
I also think that you can correct the problem that the First Nations are having by putting the decision back where it belongs, with those who hear the evidence. Then those who are doing the consulting can do more than take notes and send learned memos up the line where it disappears into the black box of the cabinet.
Fifth, and I think this is of interest for electricity as well as for pipelines, which is that renewable generation, if it is going to be massively expanded, will require new transmission lines. Some of those will be north-south, some of those will be interprovincial. These will require assessment. If the assessment process is as contentious and long as it is now, you’re not going to be able to deploy renewables as quickly as you would like them to be under circumstances where you are concerned about climate change and reducing dependency on fossil fuels because transmission lines are also hotly contentious. Everyone is very upset when they want them not near me, thank you. So there will be serious opposition there.
That concludes my opening remarks.
Senator MacDonald: Mr. Roman, thank you for being here this evening. There is so much stuff that we can ask you. I have a couple of questions here.
All the companies in the oil and gas and natural resources sector have raised a lot of concerns about the possibility of litigation following any project approval under Bill C-69. I’m wondering what your assessment is of the potential for increased litigation under this legislation.
Mr. Roman: In my assessment, there’s a substantial potential for extensive litigation, as we’ve seen with Trans Mountain, under the old law. The new law expands that, partly because any new law has new terms but partly also because a lot of important terms are undefined or badly drafted.
Sustainability, for example, which was mentioned earlier, if you look at the definition of it, it doesn’t make sense from a statutory standpoint. Something that is a good policy is good when described in policy terms. When you take that policy language and shove it into a statute, you start to get problems.
I can see extensive litigation over lots of those conditions, and I can see this being the most wonderful thing that’s ever happened to the legal profession in Canada, on all sides of the question. I’m sorry I’m retired now or I’d be a lot richer.
Senator MacDonald: The cost for proponents to get a major pipeline project up and running through the assessment process, could you give us a ballpark figure of a normal cost of getting a pipeline through? Do you think that proponents are prepared to risk the same amounts of money in the future with this legislation?
Mr. Roman: There can be three to five years of preparation before an application is even filed. Then there’s the hearings and everything that goes after. The numbers I’ve seen are in the range of 700 million to a billion. With that kind of money at risk, you really have to be careful about whether you think you’re going to get your money back, whether there’s a high likelihood of approval or whether you’re just going to give up because your shareholders and your board of directors are going to shut it down.
You may notice that in the Trans Mountain case, the company did not wait for the Federal Court’s decision. They pulled the plug before that. Then the federal government purchased it.
I can see that if you create excessive deterrence you’re going to have problems.
Senator Cordy: Thank you very much. Thank you to both witnesses for being here today.
Mr. Roman, before Christmas, I was receiving hundreds of emails every day from Suits and Boots asking that you appear as a witness. So it’s nice to meet you.
Mr. Roman: It’s nice of them, but I’m not their witness.
Senator Cordy: Nonetheless, they were sending hundreds every day.
Mr. Roman: We all appreciate having fans.
Senator Cordy: True. One of your conclusions is that, in order to make the proper decisions, we should be looking at not just the negative effects, but also the positive effects of projects. It’s only sentence. I wonder if you could expand on that a little bit and on the importance of that so that we don’t have the bias.
Mr. Roman: Even within the sustainability criteria you’re supposed to look at both. But if you look at what is in clause 63, and I put a table in my blog setting out all the proposed amendments, so if you want to look at my blog you’ll see there’s an extensive, long table that goes section by section about what I would submit should be amended, among other things, to get rid of that bias.
Clause 63, which talks about negative impacts and effects, should add the word “positive.” I think that’s what Dr. Elgie said, and I agree with him. If there’s not a lot of positive, you don’t want to do it. If there’s a lot of negative, you don’t want to do it but you want to look at all of it.
Senator Cordy: Thank you, Mr. Papillon, you spoke about the positive parts of this particular bill and the positive changes made from 2012 to this bill, but you also gave us some concerns. At the very end, you spoke about the weight of ancestral rights and treaty rights when it comes to making decisions on project assessments.
Now that you have a little bit of time, could you expand on how one would do that when looking at the impact assessments?
Mr. Papillon: I think that one of the problems is that the rights, the criteria for decision-making Indigenous rights, Aboriginal and treaty rights, are integrated into the section criteria. They are one criterion among others. As the other witnesses just said, one of the fundamental problems is that this assessment is made at the impact assessment level, but the decision itself by the minister then has to take into consideration all these criteria; Aboriginal and treaty rights are one criterion among others. There’s no obligation on the part of the minister, as far as our understanding of this bill, to rationalize infringement or potential infringement of Aboriginal and treaty rights other than in the general context of justifying a decision based on the criteria that are there.
I think that’s a bit problematic. One way to solve this problem is to integrate Indigenous people into the decision-making process itself rather than solely as part of a consultation process within the impact assessment process.
Senator Woo: Mr. Papillon, your comment on having a broader definition of Indigenous governing bodies makes sense. I’m from B.C., so I understand the particular interests in my province.
But, as you pointed out as well, there are disputes from within First Nations groups, and to the extent there is a dispute, how can a project move forward in a timely manner?
I will point out, and you probably know this, the new B.C. Environmental Assessment Act has precisely what you recommend, and they have a dispute settlement mechanism in there which Bill C-69 doesn’t even get close to.
How would you solve the problem of disputed Indigenous governing authorities?
Mr. Papillon: It’s a big question. I’m not sure a bill on environmental assessment is the right place to solve that problem. It’s a much larger problem than this, obviously. It has to do with negotiating agreements, treaty-making and recognition of Indigenous law-making authority. The B.C. approach is not a bad one. The other thing that is important to consider is that by having a broad approach to recognition of Indigenous authority, it shifts the burden onto Indigenous people to define themselves, who their representatives are.
That’s a good thing, actually. It creates a responsibility on the part of Indigenous people to decide among themselves who are their representatives in that context rather than having the government imposing band council as the legitimate authority, letting Indigenous people decide who that authority is under certain circumstances, for example, that kind of project that is affecting traditional lands or lands that are claimed under a title, then it makes more sense.
The clarity will come out of that responsibility, I suspect. Maybe that’s naive on my part, but I trust that with responsibility comes better governance.
Senator Woo: Mr. Roman, do you recommend that any of the clause 22 factors be excised from the act and which ones?
Mr. Roman: I think there are far too many of them.
Senator Woo: Which ones do you want to get rid of?
Mr. Roman: I would change the word “must” to “may” and make it all discretionary because, in half the cases, many of those factors will be irrelevant. In other cases, they will all be relevant.
Senator Woo: It’s not sufficient for you that they can be scoped out in the so-called tailored guidelines?
Mr. Roman: No, it’s not because that’s what created the problem in Trans Mountain. As soon as you scope it, you are saying, “I’m not going to consider evidence on this,” and then a person who wants to submit evidence on that can’t, and they will take you to court.
Senator Woo: Even though the agency is obliged to cover all the factors?
Mr. Roman: Once the agency is obliged to cover all of the factors, as it is now, they have to have evidence on all those factors. Some of the ones that I mentioned on my blog are hypothetical.
For example, if you use the environmental principle that you should think globally and act locally, when you’re looking at CO2 emissions and environmental questions, you should say, “How much more CO2 is going to come out at our end and how much less at the other end?” The problem is we don’t know what the Chinese will do when they buy the oil. Are they going to use it to run cars or replace coal? If they use it to replace coal, the amount of CO2 emissions they save may well exceed the amount we have here, but we don’t know what they’re going to do.
Senator Woo: If that is the question they ask.
Mr. Roman: That is one of the issues we’re supposed to look at.
The Chair: Mr. Roman, after listening to your presentation, I feel like you don’t see the need for an environmental impact assessment. How does society take into consideration climate change, cumulative effects, reconciliation with Indigenous people? Who should do these and where, in which type of legislation?
Mr. Roman: You misunderstand my position if you think I’m against environmental or impact assessments. I am in favour of it, but like Mr. Elgie said, you can’t overextend it to solve problems you can’t solve through a hearing that will be finished in a short time.
The Chair: Do you have specific amendments?
Mr. Roman: I have a long list of them. It would take hours to give them to you tonight, but I have written them all down. They’re in my blog, and you have a link to it in the submission I printed. I would stand by those, and having regard to the fact that the Senate is not the House of Commons, I’ve been frugal in what I have suggested that you could amend having regard to your proper role and their proper role.
If you took those amendments and sent them back to the house, or included them in your report, they would say, “This doesn’t go too far, and I think it solves some problems.”
Senator Wetston: Mr. Papillon, the legislation has important references to Indigenous knowledge. At the same time, it refers to it in the context of confidentiality. It seems to me proponents and environmentalists and other interveners might want to have access to the information to understand what the review panel will be considering and later what cabinet will be considering. Is this something that troubles you?
Certainly in a proceeding that has important legal consequences you would think this information could be made available in in camera proceedings, which tribunals and lawyers are accustomed to, do you have any thoughts about that?
Mr. Papillon: Perhaps the other witness can add to this, given his experience, but my understanding is that the concern on the part of Indigenous people is that it is revealing traditional use of lands in the context of an environmental impact assessment when this information can be relevant for a court case, for example, on a title or Aboriginal rights claims.
The releasing of that information in a context that is different could have consequences for the future. There are issues of intellectual property that are at stake. So the concern has been there, and it has been consistent. It’s also one of the reasons why impact and benefit agreements, for example, tend to be confidential. There are other reasons, but this is one of them for sure.
Is it good or not? It’s a good thing if it allows Indigenous people to fully engage in the process and mobilize their traditional knowledge and their knowledge about the use of land in the process because that allows that information to be considered in the process.
Should it be fully transparent? Ideally, yes, but there is probably a right balance between these competing interests. My reading of the bill is that it is striking that balance in a way. I might be wrong there, but my understanding of it is that the balance is there.
Senator Wetston: Mr. Roman, do you have any comments on that?
Mr. Roman: There is a problem with secret evidence at any time. That is a litigation trigger, and it’s also condescending to First Nations — because I’ve seen them, and they are very good witnesses — to suggest that they have to present their evidence in secret. It’s almost like saying you’re not as good as everybody else because you can’t present your evidence in public. Unless there is some special reason that no one has been able to mention, I don’t see any reason for it.
Senator Wetston: I’d like to explore this notion. You described a review panel situation wherein all the heavy lifting is done by the review panel and then it goes to cabinet and/or the minister and cabinet and a decision is made on public interest criteria. That situation engages important levels of uncertainty, not just for proponents but also for Indigenous groups and environmentalists because it’s hard to know which way that decision will go.
In that context, how do you deal with changes in government policy? Clearly, that could occur; we’ve seen it already. How do you deal with that issue from a legal and predictability perspective for those that are participating in this process?
Mr. Roman: This is very difficult, but once it gets into the cabinet, you can’t achieve the objective of transparency. What we’re doing is putting the decision to the people who are the least qualified to make it, if I can put it that way.
They have not seen the evidence. They don’t have the expertise of the panel. They are not going to spend months reading 10,000 pages of reports.
What they will get is a summary of something prepared by the Privy Council Office. They will get a summary of something prepared by someone from the PMO who looks at where the votes lie, and out will come a decision from this black box.
If there’s a change in government policy about environmental assessment or impact assessment, it shouldn’t be such a radical change that they can’t change the law. They don’t need to change the decision in the back room where the parties can’t ever see what happened.
Senator Neufeld: Mr. Roman, you responded to Senator Weston about First Nations. There are some First Nations here who can explain this a lot better than I can. This is my experience: I went to First Nations where I live in northeast B.C. and asked them to identify their areas of concern over the province putting up lands for sale and allowing the oil and gas industry or the mining industry to go in and search for oil and gas or minerals. They said, no, they did not want that information out in the public. They would rather deal with it after the land is sold. Then if someone wants to come in and do some drilling, during all the processes that happen there, then they will divulge which areas concern them. Otherwise, the areas would be wide open for anyone to go in and look and find something that is special to them.
It’s not about secrecy so much; it’s about trying to protect the things that they find sacred.
Mr. Roman: I don’t find that difficult, but I think it can be done, as Senator Wetston mentioned, through the established mechanism of in camera proceeding. Everyone who does this kind of law knows how to do that. It means the process is still done behind closed doors, but the other parties may be there. An in camera transcript is kept so that it doesn’t suddenly disappear.
The other thing about the secret evidence is that it can be presented to the minister before or after the hearing. The minister has the power to prevent evidence from going to a hearing. The minister can then talk to the cabinet and say, “I know we’ve had this hearing but I was just told this last week, so let’s not do it.” In that case, the proponent will never find out what happened. No one will find out what happened and that’s not a good way to proceed.
Senator Massicotte: Thank you for joining us this afternoon. Mr. Papillon, the preamble talks about Bill C-262 and the need to give consent for any legislative or administrative measure likely to affect Indigenous peoples. Does that raise questions, since that concept is so broad? Do you have any recommendations on that?
Mr. Papillon: Thank you for your question, senator. The issue of consent is truly at the heart of current conflicts here in Canada when it comes to the interpretation of the nature of the obligation to consult. Does all that go as far as needing to obtain consent or not? The principle is mentioned in the preamble. The United Nations Declaration on the Rights of Indigenous Peoples also defines the rule concerning consent. It does so in a very broad manner, but, if we look at the processes defined in the bill, it is no longer a question of consent, but rather of consultation. The principle is somewhat dropped or it disappears. That can be interpreted in two ways: First, as something worrisome, as the consent is there, but it is not regulated in the bill. That can create a lot of uncertainty with regard to expectations various stakeholders, including Aboriginals, can have in the process. It can also be seen in another way: The issue is that, without clearly defined expectations, there will potentially be more conflicts before the courts. By failing to create mechanisms that enable Aboriginals to express their consent or not when their rights are violated, the door is being opened to challenges or situations like the one involving Trans Mountain. It would have been beneficial to better define the mechanisms and rules surrounding the principle of consent in the bill.
Senator Massicotte: I share your opinion. Why do you think it is less important than you say it is? Is it because it is in the preamble? I talked to Mr. Joffe, who was involved in the United Nations resolutions. According to him, the intent is clear, which is that consent is necessary. The concept is very broad and leads to questions. That can lead to conflicts, which goes completely against what the Supreme Court has stated, as it has always talked about consultations and not consent. That’s a big change in terminology, isn’t it?
Mr. Papillon: Yes. It is not a bad thing to talk about consent. In section 32 of the United Nations Declaration on the Rights of Indigenous Peoples, the government talks about the obligation to consult in order to obtain consent. It is not an obligation to obtain consent, but an effort should still be made to obtain it. If that is not the case, it should be shown why consent has not been obtained. I accept that principle. The issue is that it is not specified how that can be done.
The Chair: I’m sorry, but I will have to interrupt you. We only have two minutes left.
Senator MacDonald: Mr. Roman, the supporters of Bill C-69 claim that the bill will reduce legislated timelines, at least in certain parts of the assessment process. Do you think it is likely these timelines will be met? If not, what are the significant opportunities for delay?
Mr. Roman: I see two opportunities for delay. One is that the cabinet really is not the final decision maker in these matters; the court is. The more litigation triggers you put into your law, the more you will be in court. That adds more uncertainty and that will add two or three or five years to the process.
Now you have the government in the awkward position that it’s seeking approval of its own project where it is the proponent, the owner and the judge of the process. If that is not to happen again, then you will have to change this act.
The other thing — and I mentioned this in response to an earlier question from Senator Woo — is the 20 mandatory considerations. It’s interesting that there are 20 for the assessors but five for the cabinet. If five are enough for the people who decide, why do you need 20 for the people who hear? I don’t see the logic of that. The Canadian Bar Association made a submission on that years ago and for some reason it never got changed. They’re not the oil industry. They’re not the environmental industry. They’re the lawyer industry, so they represent everybody and nobody. Yet that was their submission. It’s still not fixed.
Senator MacDonald: Thank you.
The Chair: Mr. Roman and Professor Papillon, thank you very much for your presence.