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ENEV - Standing Committee

Energy, the Environment and Natural Resources


Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources

Issue No. 59 - Evidence - April 8, 2019 (afternoon meeting)

VANCOUVER, Monday, April 8, 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 1:05 p.m. to study

Senator Rosa Galvez (Chair) in the chair.


The Chair: Good afternoon, and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Rosa Galvez. I am a senator from Quebec and the chair of this committee. I will now ask senators around the table to introduce themselves, starting to my right, senator from Yukon.

Senator Duncan: Pat Duncan from the Yukon. Thank you.

Senator Cordy: I’m Jane Cordy. I’m a senator from Nova Scotia.

Senator Simons: Paula Simons. I’m a senator from Treaty 6 territory, Alberta.

Senator Woo: Good afternoon, Yuen Pau Woo, British Columbia.


Senator Carignan: Claude Carignan from Quebec.


Senator Patterson: Dennis Patterson, Nunavut.

Senator Neufeld: Richard Neufeld, British Columbia.

The Chair: I want to introduce to my left, the clerk of the committee, Ms. Maxime Fortin; and to my right, our analysts from the Library of Parliament, Ms. Sam Banks and Mr. Jesse Good. Our deputy chair, Senator MacDonald from Nova Scotia.

Colleagues, today 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.

Now we welcome this afternoon’s panels. In the first panel, from Wilderness Committee, Peter McCartney, Climate Campaigner; and from, Tzeporah Berman, International Program Director. We will hear your five-minute statements and this will be followed by a period of questions and answers. Thank you very much. You have the floor, Mr. McCartney.

Peter McCartney, Climate Campaigner, Wilderness Committee: Thank you. Good afternoon, senators, and thank you for having me here to appear before this committee to speak on the critical importance of a credible environmental review process that restores public trust in our government’s reviews.

I am the climate campaigner at the Wilderness Committee, and I speak today on behalf of our 60,000 supporters across Canada and beyond who have seen the damage the current regulatory framework has done and will do to their communities and ecosystems. Not that it matters, but I will note that our funding comes almost entirely from individual donors giving an average of $15 a month or $70 at a time.

Today I will share some of our experiences with former and current legislation with regard to several projects the Wilderness Committee opposes in this province. I want to use this opportunity to illustrate the need for environmental reviews that offer meaningful public engagement, greater transparency and decision-making, and a fulsome assessment of a project’s impacts. I believe Bill C-69 delivers on these crucial points, and that’s why I support the passage of this legislation.

It’s no secret there have been heated battles over controversial projects in British Columbia in recent years. Court challenges and protest blockades are a common sight and a clear sign that our framework is not working. We need a comprehensive impact assessment process that looks at all the impacts of a project, instead of a process designed to layer conditions on potentially flawed proposals. Believe it or not, we don’t want to constantly be fighting off development in this province, but in order for that to happen, we need to make sure local concerns are taken seriously.

Take, for example, the ongoing saga over Taseko’s New Prosperity Mine at Teztan Biny, or Fish Lake, in Tsilhqot’in territory. For over a decade now, the proposal has loomed over its sacred waters, while we have worked with the Tsilhqot’in to protect them. This project has been rejected twice by the federal regulator, but the company is still trying to launch an exploratory drilling program while waiting on an appeal. At my count, there have been 12 court cases, including a frivolous defamation lawsuit against the Wilderness Committee that cost us five and a half years of legal expenses and staff time. Last week, the Tsilhqot’in were granted an injunction to halt the work pending a ruling from the Supreme Court of Canada. Nobody benefits from this. Tsilhqot’in communities who have to divert resources from their public services don’t benefit, and neither do investors who could be making their returns on another less controversial mine by now.

Pacific NorthWest LNG is another shining example of a project that wasn’t worth the effort for everyone involved. The Malaysian company, Petronas, proposed to build a liquefied natural gas terminal in the mouth of the Skeena River at Flora Bank, a treasured eelgrass bed that supports 88 per cent of the salmon in the watershed.

At the outset, the Lax Kw’alaams First Nation unanimously rejected a billion dollars offer from the company. Community members set up a camp on nearby Lelu Island and turned away workers who came to drive piles into the bank. The project received its permits because the Canadian Environmental Assessment Agency, or CEAA, ignored science that showed the project would destroy this habitat. It was an extremely divisive proposal within the community and the company eventually backed out and relocated its exports to LNG Canada.

Of course, the most glaring example of the failure of our current regulators is the review for the Trans Mountain pipeline and tanker project. Wilderness Committee has been fighting the export of diluted bitumen through Burrard Inlet since 2010, even before the current proposed expansion. Tsleil-Waututh Nation voted unanimously to oppose the proposal shortly after it was announced, and that was the same year the federal omnibus bill C-38 took environmental assessments away from CEAA and mandated them to the industry-dominated National Energy Board.

The Wilderness Committee joined the review in good faith. It soon became clear to us that our participation was only lending credibility to a broken process. Over a thousand people, many of whom were our members, were excluded from the review because they were not deemed directly affected. The National Energy Board refused to consider the impacts of climate change and marine shipping, despite being the two most significant concerns of Indigenous and environmental groups.

Together with 34 other intervenors, we decided to abandon the review. The failed process was immediately met with 19 legal challenges, and the decision was reversed by the Federal Court of Appeals in August. Opposition, bolstered by the fact that this project has never received a meaningful review, environmental assessment, forced the company to sell the proposal, and I can guarantee you there will be people standing in front of construction if they want to start again. People don’t do that when they feel a project has been given a thorough and credible review. They only turn to these kinds of desperate measures when they don’t feel heard.

Bill C-69 would help restore public confidence in our environmental assessments. I believe everyone involved in these reviews should support this legislation. It’s not perfect, but it’s a decent compromise and will go a long way towards getting good projects built and making sure poorly thought-out proposals never make it to the point of protracted conflict. Taseko Mines, Petronas and Kinder Morgan have all spent a tremendous amount of time and resources to end up without a project. I believe it would have been better for all involved if these proposals had been assessed and alternative options found.

Thank you.

The Chair: Ms. Berman.

Tzeporah Berman, International Program Director, Good afternoon, senators. Thank you for the opportunity to speak today and I want to, first and foremost, respect and appreciate that we’re here today on the unceded territory of the Musqueam, Squamish and Tsleil-Waututh peoples.

I’m here today to urge you to resist the pressure from the oil and gas industry to weaken or outright kill Bill C-69. From our perspective, this legislation is not perfect, but it’s an improvement over what we have right now, and essential to ensuring proper assessment, restore public confidence, and yes, provide industry certainty.

We need to begin this discussion by acknowledging that many Canadians have lost faith in the federal government’s ability to conduct fair and balanced environmental assessment, a fact illustrated by the protests and legal challenges in the wake of several high-profile assessments, following the changes brought in by the Harper government’s Bill C-38 and Bill C-45, which was a naked attempt to placate industry by fast-tracking projects through review with limited transparency and oversight.

The trust in our government to protect clean water, to keep our children healthy, was shaken to its core. Increasingly, it seemed that our government was willing to put the demands of the oil and gas industry ahead of scientific evidence and national interests. Not only is this loss in confidence bad for our government institutions, it’s also been bad for industry because as long as assessment processes regularly end with legal challenges there will be no certainty for project proponents or their investors. It’s only through return in confidence that good environmental assessment processes are rooted in fairness and the shared values of both wanting to protect our environment while creating economic opportunities that communities will accept the outcomes.

As you are probably aware, in 2012, the previous government gutted the Canadian Environmental Assessment Act, the National Energy Board Act and the Navigable Protection Act. This was done as Freedom of Information reports showed us, at the request of oil and gas companies, in an attempt to make it easier for them to get approval for their projects, regardless of concerns.

With historical context, it’s of little surprise that the oil and gas industry are mounting such a strong campaign to prevent this government from restoring credibility to the environmental assessment process. I urge you to withstand that pressure and instead consider three priorities that must be the foundation of a strong impact assessment: the recognition of Indigenous rights, to ensure fair and open public participation, and to include a climate test.

No environmental assessment regime can succeed unless it respects the title and rights of Indigenous peoples. We heard this morning a lot of discussions about how this is hard, how it’s different from the past. That is right. But because something is hard doesn’t mean it shouldn’t begin. The courts have been very clear. If assessment agencies and the Crown fail in their duty to consult Indigenous peoples, they will quash permits and overturn approvals. The rights of Indigenous people in UNDRIP must be upheld in Canada.

I defer to Indigenous law experts and Indigenous leaders to clarify their needs, but I want to take this time to express the support from for full recognition of the rights of Indigenous people in Bill C-69, and support the amendments proposed this morning by the First Nations Leadership Council.

Canadians want a say in how their lives are impacted, be it from how a mine impacts where they live, or how a major oil and gas project affect the climate. They are concerned about the quality of their life and they must have the opportunity to participate in the process to determine which projects will be approved.

In the interests of time, I will refer you to my written testimony, which I have submitted to all of you, but I do want to speak directly to a couple of issues on public participation.

From 1975 to 2012, we had unrestricted public participation in our assessment processes. During that time, only two projects, out of thousands, were refused, both by Conservative governments. That unrestricted public access did not mean that we could not have certainty in the investment environment in Canada. The agencies know how to do this. They have been doing it for decades until 2012.

Our experience at was primarily on two issues, both from the Gateway and for the Trans Mountain pipeline review process. The Trans Mountain pipeline review process was conducted under the revised CEAA in 2012, and amended NEBA. The scope of the hearings was extremely narrow. Participation was extremely limited, so limited, in fact, that many scientists, many academics, many local residents were refused the right to intervene and, in some cases, even to submit a comment onto the project. Since when did it become okay in Canada that, in order for the public to participate in a public process, we needed to apply and fill out an 11-page application even to decide whether or not we could submit a letter? The 11-page application in the Trans Mountain process was a more rigorous application form than we asked people to fill out when they become Canadian citizens. So that process was restricted. Even if you were allowed to participate in that process, you were not allowed to do any cross-examination.

So, there has been a public outcry, and that project has not moved forward. That public outcry was, in large part, because the environmental assessment was so limited and the process of that review so restricted. People cannot have confidence in a process that does not look at all of the issues, that does not assess environmental issues, and have full transparency as to the economic impacts and decisions that are made.

Bill C-69, as it currently stands, addresses many of these issues that have plagued the environmental assessment process since 2012. It removes the standing test. It requires participation to be meaningful. It allows the public to be engaged in how they participate.

Finally, I want to address climate change. Canadians are concerned about climate change. They are concerned about the risks to their homes from the dramatic increase in floods and fires. It’s only April, and here in B.C., we have already had 19 wildfires. Our lives have changed, the world has changed, and I get that this is concerning for a lot of people and it’s scary. And there are a lot of people in industry who would like industry to be able to just continue as it did in the past, but that is not the world we live in now. People across the country are concerned about the impacts to their health from extreme heat and the health impacts of air pollution. They are concerned about the plants and about the planet that their children will inherit. While this may not be evident in the headlines of the newspaper, across party lines according to recent polls, Canadians are concerned about climate change.

Canada has committed to reducing GHG emissions 30 per cent below 2005 levels by 2030, a target that is far too low, and one that likely will not be met with the current suite of policies. That’s because oil and gas emissions are rising.

I refer you to Canada’s Oil and Gas Challenge, a report that I co-authored with Environmental Defence, to be released at the UN climate change negotiations in Poland of this year. What that report shows is that, while Canadians across the country are doing their best to reduce emissions and fight climate change, all of this is being wiped out by the growing emissions from the oil and gas sector. The oil and gas sector doesn’t want to be restrained. It wants certainty. If that’s true, it needs to compete in this world. We heard this morning Teck Mining support Bill C-69 because they believe that their projects can compete with rigorous environmental assessment. I offer you that all companies operating in Canada should believe that their projects can compete with rigorous environmental assessments. That’s what this country is about. Those are the challenges that we face today.

I don’t think that this is unreasonable to ask that we align our project assessments and decisions with our commitments on climate change. We have committed to an 80 to 100 per cent reduction of emissions by 2050. That means we will have to reduce the size of the fossil fuel sector. You can’t get off fossil fuels while just building more.

That means the future is different than the past. It means there will be significant challenges. We need to assess those, using data and transparency, and climate change must be reviewed in our environmental assessments.

I will leave issues that were raised this morning about foreign funding and environmental groups to the question period. But I will just say, in summary, that if we want to protect Canada’s environment and our economy, if you want less protest, if you want less litigation and more certainty, please pass this bill.

Thank you.

The Chair: Thank you very much.

Senator Neufeld.

Senator Neufeld: Thank you both for being here and bringing forward your opinions about Bill C-69. I have one question that I would like both of you to answer, if you would please.

If Trans Mountain had gone through a process as outlined in Bill C-69, can you tell me if there would be no legal challenge, that everyone would be happy, and it would go forward?

Ms. Berman: We don’t know. I think we don’t know that because we haven’t seen a full assessment of the Trans Mountain Pipeline. The demand scenarios that are being proposed that many say are absolutely necessary for Canada’s economic health are seven years old. They’re based on demand scenarios that even China doesn’t use anymore because China has put in place policies to ban the fossil-fuel car, as has India, the Netherlands and many others. So, whether or not this project, if it had a full and rigorous and transparent assessment, would go through, we don’t know. I don’t think it would, because, in large part, if we align our climate ambitions with our project approval, then that means, I believe, given the recent IPCC report that says that we need a 45 per cent reduction in oil and gas emissions globally by 2040. If that’s true, it means we need to reduce emissions now in order to keep the world at climate safety. If that’s true, we don’t need another pipeline, because we cannot grow the size of the oil sands.

None of the groups I work with, and none of the campaigns are saying, shut the oil sands down overnight. That would be devastating to Canada’s economy. We all have family that work in the patch. What we’re saying is, at this moment in history, we can’t expand it, and we need to plan for the security of communities and families by ensuring economic diversification now, and not building more fossil fuel infrastructure. Thank you.

Senator Neufeld: Mr. McCartney.

Mr. McCartney: Yes, the only thing I would add to that is that I strongly believe that the Trans Mountain Pipeline is out of line with our climate commitments, is out of line with the global economy, but let’s find out. Let’s put that to a rigorous scientific process in an impact assessment to determine whether or not this pipeline can exist in a world that meets its climate commitments. At the moment, we’re stressing this in the media that if these oil sands companies believe they have a place in a low-carbon future, they should show us. We should have science that shows that and I don’t think they do.

With regard to court cases, when you get a community involved early on in a process, when you take endangered species into account at the outset, it will lead to fewer legal challenges. If there are legal challenges, I don’t think they will succeed because communities have been involved in that process, in planning the project from the beginning. I think that’s the direction we need to move it. Thanks for your question.

Senator Cordy: Thank you both for being with us this afternoon. We’re looking at the bill and trying to find the balance between environmental concerns, a balance between that and industry and the inclusiveness of Indigenous nations who, in the past, have not been included.

I would like to talk about public participation. Ms. Berman, you spoke at length about that. We have heard from witnesses that we have to be more selective about who gets to appear before the committee. Do the concerns that these people raised have merit; or do you think that people who are interested and who do appear before the hearings and are active participants, that it will be better for the final project?

Ms. Berman: I think Canada was built on the foundation that public participation be unrestricted, and the fear mongering that somehow that’s what’s going to cease projects, if we allow the public the capacity to participate in a public process, doesn’t bear fruit when you look at the data. So the agencies know how to do this, and from 1975 through to 2012, they did. Not everyone gets to speak in front of a committee, and not every project will go to committee. The fact is that some will and some won’t, but they all have some form of capacity to have their say.

I think the reality is it wasn’t turned down. If the issues are getting more controversial and more complex, then doesn’t that mean we have to have this conversation with Canada?

I do want to say one other thing about the bill which I realize I forgot in my testimony, which relates to public participation and to the scope of this bill. I support the amendment that came to the House, supported by the Committee, that was put forward, I believe, by Elizabeth May, that this bill should apply to all federal jurisdiction. There has, again, been a lot of fear mongering that we can’t have it apply to too many projects.

In the past, again, from 1975 through to 2012, the environmental assessment process applied to all projects, and again, the agencies decided how this would happen. Some projects had limited scope reviews. Others had much bigger reviews. But the fact is that all projects had to have environmental review. So, in this bill, there is inappropriate minister discretion that can make an environmental assessment not happen. And we have seen the environmental assessments in this country, in some form, go from 5,000 down to about a project list of a hundred, and that’s not okay. Our process wasn’t broken in the past. It was well administered and, in fact, during that time period, as I said, only two projects were refused.

I just want to be clear with the committee that I think the amendment that has been proposed, to ensure federal jurisdiction, federal dollars and federal land for this bill, is critical.

The Chair: You want to add something?

Mr. McCartney: Yes, I would. At the Wilderness Committee, encouraging public participation in these review processes is our bread and butter. A lot of our work is to help our members to participate. I believe it’s of crucial importance that people receive meaningful consideration of their concerns.

A lot of the letters or requests that come will not take a Senate clerk an extended amount of time to go through them. They’re simply registering their concerns about this project. And every once in a while, there will be, some biologist on the Island, who we have never met before, who will come forward and say, “This is a key issue that you haven’t even thought about yet.” I think that’s where a fulsome impact assessment process will go. We need to be hearing from those voices in order to make sure these processes are thorough.

If industry has concerns about accepting too many people into a process that seems backwards to me. I think this country, as Tzeporah said, was built on public participation. When people oppose or have concerns about a project, if they’re excluded from a process, those concerns and oppositions don’t go away. They continue to find other ways to get involved and to oppose, and it is damaging when that happens. It’s damaging to the credibility of our public reviews. It’s damaging to people’s faith that governments are making decisions that are in their best interests. I hear people who talk about the National Energy Board, the CEAA, in ways that don’t make me feel good about the people representing and making decisions in our country. I don’t want that. I want people to believe in this process, and in order to do that, their concerns need to be taken seriously.

Senator Woo: Thank you, witnesses.

You have both pointed to the importance of a climate action factor being considered in the assessment of projects and, in fact, it is one of the section 22 factors, the extent to which the project contributes to Canada’s commitment to meet its international obligations. But the government has not spelled out, exactly, how that factor would be evaluated.

I have a question. We have a pan-Canadian climate action framework. It went into effect this last week, as you know. So, there is a national plan to price carbon that gives incentives for corporations and individuals to do the right thing. The price is going to go up over time. We may debate over whether the price is high enough. But there is a national framework that governs the use of carbon, which will impact project proponents’ plans; the choice of technology, of projects and so on. Why do we need an additional climate test at the project level when we have a national framework that prices carbon and gives incentives for the economy to move as a whole in the direction of our international obligations?

Mr. McCartney: We have seen in recent months that the pan-Canadian climate framework is fragile. The commitments that the Alberta government made, specifically around the tar sands and the 100 megatonne cap, have been ignored and the cap still does not exist. And provincial and federal climate policies vary. If these policies are enough to make sure we meet our commitments, then that should be a fairly simple review process for an impact assessment. But if they’re not, that’s concerning, and we need to address it.

Ms. Berman: I have one thing I would like to add. The fact is that we measure emissions as they’re being, and after they’re emitted. What that means is the data that a government will get in is usually a year old. So, our projects lock in a level of emissions that are not considered.

When I say align our project decisions with our national climate plan and climate ambitions, I mean that we actually look at how much that project will emit over time, what that potential lock-in of carbon and carbon emissions means and whether or not it aligns with a pan-Canadian climate framework. A carbon tax is not going to constrain production emissions from oil and gas unless the carbon tax was closer to $120 to $150 a tonne overall. And right now, this carbon tax only applies to 20 per cent of emissions from the oil and gas industry. So, let me say that again. Eighty per cent of emissions from the oil and gas industry are exempt from our national carbon tax. And that’s, in large part, why it’s not enough.

Finally, the reason the Obama administration put a climate test on Keystone, and other pieces of infrastructure, is so they could add in the social cost of carbon and a global market economic analysis. Right now, our economic analysis at the NEB just looks at what the demand for oil is projected to be, business as usual, by 2030, 2040 and 2050. The fact is, a business-as-usual consumption of oil at that level leads us to a 5- to 6-degree world, which, most scientists say is an uninhabitable world.

I don’t think it’s too much to ask for us to do a global market economic analysis consistent with demand scenarios of 2 degrees, which would be a habitable world. So, we would be assessing our projects by where we want demand to be. Yes, that requires leadership, but that’s what this era calls for.

Senator Woo: I hear you, and, of course, the global demand side is not part of the factors in section 22 currently. It’s just based on what Canada’s commitments are. And what I’m hearing from you is that, if we had a more robust pan-Canadian climate action plan and if all the provinces bought into it, and we would be more aggressive in the targets, you might be less insistent — I am putting words in your mouth now — but that would give you a little bit more comfort.

But it leads to the secondary question, and this is an important one, because many in the industry feel that however we end up applying the climate test, there are no conditions under which an oil and gas project, a pipeline project, could be approved under a climate test. So, let me put the reverse to you. Under what conditions could a pipeline project be approved in the face of a climate test as we have in section 22 of the bill now? Under what condition can it be approved? Because right now the presumption in the industry is that there is no way it can be approved, based on what we have heard from you.

Ms. Berman: I don’t think that’s true with how the bill is currently structured. I think it depends on what our federal government decides to do relative to international credits, which, for the record, we don’t yet have a system. Article 6 in the UNFCCC is not decided. And many organizations, including, do not support international credits.

Emissions reductions have to come from somewhere. So, the government will have to decide where emission reductions come from. A government, objectively, could decide to allow an increase. I don’t think that that is consistent with the IPCC report, because what we know from the IPCC report is that we have 11 years to reduce emissions significantly before runaway climate change. So, in that 11-year period, the IPCC says that all industries, all countries, must quickly reduce emissions now. Canada’s oil and gas industry already have significant growing emissions, let alone if we add new projects to it. So, I don’t think it’s consistent. Whether or not the federal government would decide to apply international credits and do something else in order to allow more space in its own pan-Canadian climate framework is the federal government’s choice, and that’s how new projects would be built under this bill. As I said, I don’t think the bill is strong enough. I think we should be doing assessments on climate change consistent with our goals of well below 2 degrees, but that’s not what this bill does.

Senator Woo: Okay. Thank you.

The Chair: Senator Simons.

Senator Simons: Thank you very much, Madam Chair.

I appreciate the honesty of your answers to my colleagues, Senator Neufeld and Senator  Woo. I am, of course, a senator from Alberta, and so your baseline presumption that we can never build a pipeline again isn’t one that works for me. So, let’s talk about your other point, which is that emission reductions have to come from somewhere. If we want to green our grid, if we want to reduce our carbon footprint, we are going to have to build infrastructure and that infrastructure also comes with economic costs. Hydroelectric dams have their own economic consequences. Nuclear power plants have own economic consequences; large-scale wind farms, tidal electricity.

What I’m concerned about, among other things in Bill C-69, is that it could make it substantively more difficult to build things like interprovincial hydro lines, or hydroelectric dams, or major-scale wind farms that could affect migratory birds.

I’m in favour of a pipeline, let me make that clear, but I’m also in favour of building infrastructure that allows us to reduce our reliance on carbon. Are you at all concerned that some of the barriers created by Bill C-69 could actually make it harder for us to get off of carbon?

Ms. Berman: I think that’s a great question. Thank you.

I started working on renewable energy over a decade ago, when Premier Campbell was premier put in place the first economy-wide carbon tax, but also wanted to escalate the development of renewable energy. Because we didn’t have proper process and rigorous assessment, that process was a nightmare. In fact, we were on the opposite sides of the fence during that process, and the debates around hydro and run of the river, and other issues, because the process was terrible. The environmental assessment process was weak. The public participation was not there. We didn’t have proper land use planning. So, where these projects were sited was just as controversial as pipelines today.

I believe we need to have a transparent and rigorous process in order to have public acceptance, because change isn’t easy, and we need the public involved as we build the new economy.

Mr. McCartney: The reason this bill is so important is because it does take these impacts holistically and looks at all of the different impacts of a project. You shouldn’t put a wind farm in the middle of a migratory bird pathway, and if someone suggested doing that, we would write in and oppose it, but you could say, “Here is a better place to do it.”

I think that what is really important, is that this bill will make us ask what is the best project we can build, and what are the benefits? There will be trade-offs, but when people are actually concerned, and those concerns are taken seriously, we will end up with better projects that will solve climate change.

The Chair: Thank you.

Senator Carignan.


Senator Carignan: I would like to know your position on this. You talked about Obama earlier. I think it’s ironic that Obama, whose rhetoric focused on the environment, experienced the largest increase in oil and gas production in the history of the United States during his term. I feel that the actions do not match the rhetoric. As an activist, do you think we should leave our energies such as oil and gas underground?


Ms. Berman: Thank you for your question, senator. While I did agree with Obama’s climate test legislation, I certainly didn’t agree will all of Obama’s environmental platforms.

Senator Carignan: Thank you.

Ms. Berman: There is a possibility that many of the industry titans in the oil sands are touting now quite widely, that we are going to find a way to decarbonize oil, to do carbon capture and sequestration in a way that is cost competitive, and in a way that is environmentally safe. It’s not right now. They would like to, and I have some faith in them, because I think the innovation that’s gone on in the oil sands is something that is truly astonishing. Can we right now? No, it’s not safe, and it’s not cost competitive at a scale that would be required in order to increase production.

So, will that oil and gas stay in the ground forever? I don’t know. I think anyone who claims to have all the answers in the climate era doesn’t know. Does it need to stay in the ground right now? If we’re going to ensure climate safety for our children in the next 10 years, absolutely.


Senator Carignan: Do you also think that aspect should be considered from a global perspective, since the increase of greenhouse gas emissions is a global problem? Should measures be added to the legislation on the positive effects of greenhouse gas projects around the world and not only here in Canada? For example, there is a transitional energy that leads to an increase in greenhouse gas here, but replaces an energy source like coal in China, which is extremely polluting. Should that be taken into account in the environmental assessment here in Canada? In short, should we take into account the impact of greenhouse gas reduction as beneficial from a global standpoint, even if it leads to an increase here in Canada?


Ms. Berman: Thank you for your question, and I’m so sorry I can’t reply in French. Blame it on the public school system. I’m trying.

The short answer to your question is, if the impact is above and beyond meeting our targets, then I think the answer to your question of whether we should take into account international impacts, is yes. The baseline for every country with an issue that is a global commons issue, like, climate change, has to be whether each country is meeting the targets it committed to because it is a global problem. So, we cannot address climate change and assess, as a world, if we’re addressing climate change enough to ensure climate safety, unless each country does its part and commits to doing its part.

The second part of your question though assumes that LNG produced in Canada, for example, or gas produced in Canada, is going to reduce coal emissions in China. I have seen many studies in the last couple of months that is showing that the growth of LNG and natural gas at one time was replacing coal. With the drop in renewable prices, especially of wind and solar, and the increases in battery technology, even in just the last two years, we’re now seeing in many jurisdictions that LNG and gas is replacing renewables.

So, I think it’s a very complex question. Not opposed to our agencies and the environmental assessment process looking at that question. Above and beyond whether or not a project also ensures we can meet our targets, then yes, as global citizens, we should be looking at the global impact.

Senator MacDonald: I’ve wanted you to answer these questions, but I think I’ll start with you, Ms. Berman.

One can infer from your testimony that the world is going to transition soon away from fossil fuels over the next few decades. But the information we have, from sources around the world, says this isn’t the case. In fact, the International Energy Agency has estimated that by 2040, Chinese oil consumption will grow by 4.1 million barrels a day, and Indian oil consumption will grow by 6 million barrels a day.

Somebody is going to provide this oil. Canada, compared to Nigeria, or Saudi  Arabia, or Kazakhstan, or most of the countries that provide oil, we have a much better regulatory system than any of those countries. Do you believe Canada should supply these markets, and if not, why not?

Mr. McCartney: I would love to take a shot at that first. There’s where we are at now and there’s where climate policy needs to be, and climate policy can only catch up with the science in terms of public opinion and participation and demand.

Ten years ago the International Energy Agency forecast 2 per cent growth for coal year over year. What we have seen for the last two years is a 2 per cent reduction in demand, and now they expect it to be stagnant for the next 10 years.

We need to be skating where the puck is going and not where the puck is. For Canada to be assuming that the world is going to blow all of the climate targets that have been set, fail in the Paris Agreement and usher in climate destruction on a level that few people can imagine, is betting on us to fail. We’re setting up so that either our global environment loses or our economy loses. We’re putting all our eggs in a basket that is quickly disappearing.

I do not think that it’s responsible for us to be looking at emissions demand scenarios. Based on the available science, I think we need to look at how fast those emission scenarios have changed over the past few years, and really look at what would happen when the globe is meeting these. We just can’t afford to fail on this.

Senator MacDonald: Well, I’m not sure that answered my question.

The Chair: Dr. Berman, do you want to — yes, she wants to.

Senator MacDonald: Dr. Berman?

Ms. Berman: Thank you.

I want to talk for a minute about leadership in difficult times because that, for me, is one of the things I have been most proud about being Canadian. I’m a Jew, and in World War II, many people said that Canada couldn’t make a difference. They said that we shouldn’t necessarily send those troops to the Netherlands. Those troops made a huge difference. We were less than 0.2 per cent of the World War II effort. We made a huge difference. That’s what leadership is.

Government is responsible for the public good, and global demand levels at business as usual or higher are equivalent with a 4- to 6-degree warming. Our government has signed off on those IPCC scientific reports and our plans and commitments to move forward.

So, if we’re going to ensure a climate-safe world, then that means that we need to act. We need to recognize that 4- to 6-degree warming is actually not a functional world. It means that we’re going to be producing 50 to 75 per cent less food on the planet, for example. So, we need to actually address that.

And saying, “The market will take care of it, we have a right to compete,” is just not good enough. Because the government — that may be what industry wants to do, because they’re fighting for their lives, because they see the writing on the wall, but that’s not okay for government. Government needs to look at the public good, and if we are signing off on an IPCC report that says that a 4 to 6 degree world is, in many parts of the planet, an uninhabitable world, we can’t be planning for that level of oil consumption.

Senator MacDonald: Well, again, it’s a great speech, but nobody is answering my question here.

The Chair: Okay.

Senator MacDonald: The government has put a $20 tax on carbon. We know from the agreement we need at least $250 to $300 tax on carbon in order to meet those commitments. Is that what you’re saying we should be doing in this country then? Is that your alternative? There are only so many choices.

Ms. Berman: Actually, there are a lot of choices. So, we can reduce emissions through either regulations or through a price. That’s basic knowledge. So, the question is, what regulations do you put in place?

When I was the co-chair of the Oil Sands Advisory Committee in Alberta drafting regulations, we did recommend a cap. I, in part, left that work because the only way a cap works, and it’s proven around the world, the only way a cap works is if it has a cap and then a decline, because the declining cap results in declining emissions.

So, we could put a cap on oil and gas production and decline in line with our 2050 goals. That would be one way to do it. We could regulate industry emissions in a different way than we regulate on just price. We can have both price and we can have regulations that constrain emissions.

There are a number of ways that we can reduce emissions and, in fact, in many places, regulations have been faster to reduce emissions than a tax. A tax is the most economically graceful way, in a sense, to do it, which is why the economists love it so much. But I think what we have seen is that it is politically unacceptable, and it’s not working at a level that would be needed to constrain emissions consistent with climate safety.

So that means we need what economists would say is both sides of the scissors. You can’t just reduce demand and not address supply, because that will leave you with a lock-in of carbon in the system. We already know that we have more oil, gas and coal under production or under construction globally to take us past 2 degrees, if you just add the carbon. We have enough on the surface of the planet, if it was all burned, to take the world past climate-safe limits. Any new exploration or infrastructure at this moment in our history, without major breakthroughs in technological innovation and cost on CCS, is not viable if we’re prioritizing climate safety. That’s the bottom line.

Senator MacDonald: One quick question. China and India produce over 40 per cent of the emissions in the world.

Ms. Berman: Yes.

Senator MacDonald: They have so much coal burning. If you get rid of all that, all those emissions, if they went to nuclear power, would you support nuclear power in China and India and get rid of all those emissions and go to an emission-free industry?

Ms. Berman: Well, first of all, I think an assessment of whether nuclear power is necessary in order to reduce carbon emissions depends on the scale, rate and cost of implementation of renewable energy at scale. The studies that I’ve seen for both countries on that issue show that we can build out renewables faster and at scale than nuclear power in order to reduce carbon emissions. So, I don’t think so. I think the priority has to be carbon emissions.

But the larger point of your question, again, takes me back to the beginning of this conversation, which is about leadership. China and India supported the Montreal Protocol. We banned CFCs. We stopped the growth of the hole in the ozone layer because of Canada, because we said “yes” first. That’s the moment that we are at in history.

So, will other countries follow suit if we step out, as a wealthy country that has the capacity to diversify our economy, and say that we recognize that we need to constrain production? I think they will. Many others do, too. And that’s what it’s going to require. It’s going to require leadership. That’s the moment that we are living in. We would still have growing holes in the ozone layer if it wasn’t for Canada. Social change isn’t linear; we know that. We are looking for that tipping-point moment, and at this moment, we are looking for courage.

The Chair: Thank you very much.

Senator Patterson.

Senator Patterson: Thank you, Madam Chair. I would like to ask both panellists about standing.

Mr. McCartney, you talked about the importance of making sure that local concerns need to be heard, as you said, are taken seriously. However, Bill C-69 does seek to remove the standing test which we have heard could lead to local concerns getting drowned out by other interests. Based on what you have told us today about the importance of local concerns, would you feel that regulators should at least place preference priority on the representations of those directly affected?

Mr. McCartney: Thanks for that question. I think that’s a very good one.

We are looking for meaningful public participation on any sort of scale. Someone who lives across the country and isn’t impacted by the province, or by the project, still need to be heard, but they might write a letter as opposed to speaking to a committee. Local concerns should be a priority, but recognizing that these projects have impacts far beyond their actual site, we need to take everybody’s concerns into account.

Senator Patterson: I hear you saying that the open standing test may have to be qualified by giving preference to local persons whose testimony is important.

I would like to ask Ms. Berman on that. I’m from Nunavut and we’re very sensitive to making decisions on our own, given the unique environment and history in Nunavut. We heard from Nunavut regulators that they want to have the opportunity to screen out duplicative or irrelevant testimony, although anyone is welcome to make a submission.

I was just looking at the Enbridge Line 9-B capacity expansion project. There were 177 applications to intervene, and only eight were denied. One of those came from a woman living far from the affected area who stated that the pipeline was, “an insult to her sense of holy.” I’m wondering if you believe that submissions like that should be admissible.

Ms. Berman: Not having read this particular woman’s entire submission, I can’t tell you. I have, though, met with a lot of people, especially Indigenous leaders, and many people of faith from all denominations, who believe that these projects, at this moment in history, are affecting, and affect, their religion and are an abomination to what they believe is sacred. So, should that be taken into consideration? I don’t know. I’m not the agency.

I have a lot of faith, based on the history of our agencies, in trying to figure out how to manage public participation, and design experts and, and various levels of participation, to ensure that people will be heard and a committee and a body would be able to hear the most important testimony that has priority. And I think rather than sitting here and deciding, or putting some broad concept that allows broad discretion, in order to just weed people out, I, I think we need to allow those agencies to do what they did well in this country for decades.

I would give you back one example. I have three degrees, and I was given an honorary doctorate a couple of years ago by UBC because of my contributions throughout my 30-year history in environmental policy in British Columbia. I have written several books. I am an adjunct professor at York University, and I have been working on environmental policy in this country for 30 years. I applied to be an intervenor on the Trans Mountain hearings. I also applied, in part, because of my experience working around the world in over 15 countries on climate change and as an advisor to three different provincial governments on climate change. I was refused because I was not considered an expert or had anything relevant to tell the NEB on that issue.

Senator Patterson: I hear you saying that the wide-open standing test should be reduced by the regulators setting up criteria for determining the relevance of submissions?

Ms. Berman: No. What I have said is that I support this bill without amendments to public participation.

The Chair: Last question, Senator Mockler.

Senator Mockler: Canada has just 0.5 per cent of the population of the world and accounts for between 2 and 2.5 per cent of the world GDP. So, there’s no doubt in my mind Canadians are punching above their weight. And with some other comments, I have heard you, I would like to see you come in Atlantic Canada to have those discussions also.

But I want to bring to your attention that I think there’s something wrong, and I want to tell you who I am. I served the people of New Brunswick for a little over 24 years in the Legislative Assembly of New Brunswick, and I am a pro-person for scientific data and consultation. First Nations need to be consulted, and the stakeholders need to be consulted, as long as we take into consideration science-based data and proper consultation.

If you would be in my area, New Brunswick, and we talk about taxes, right now a litre of gas is $1.29 and a thousand feet from where we live, in the U.S., there’s a $0.33 difference. During the time that Keystone was first approved, stalled, and then finally rejected by the former government, eight equivalent Keystone XLs were built in the U.S.

I have here a letter from the Council of Atlantic Premiers which says that a letter they wrote to the Prime Minister of Canada, saying that as currently drafted Bill C-69 — with respect to the proposed scope and skill of federal environmental assessments in Canada — will not meet the dual objective of environmental protection and economic growth.

With your experience, are you for pipelines or are you for economic development for natural resources from coast to coast to coast? Not just in one part of Canada.

Ms. Berman: I’m Canadian, and I’ve had the opportunity to live in many parts of this country. I grew up in Ontario. I have a lot of family that work in Alberta. I now live in British Columbia. I believe that Canada needs a very strong economy, especially to face what we’re facing in the future. We can’t click our heels three times and make climate change go away. We are facing rising insurance costs and billions of dollars are being spent in dealing with the impacts of climate change at the level that we are already dealing with. So, yes, we absolutely need a strong economy.

That said, we’re dealing with an issue here that is, from what I heard this morning, a bit like shoot the messenger. The fact is that oil sands are in trouble, because they are some of the highest cost and highest carbon oil on the planet. That’s why Total, Shell and Statoil fled the oil sands in the last 24 months. And the fact is that this is difficult to hear. I know it’s difficult to hear, and it’s going to mean huge changes for Canada. Building another pipeline won’t solve that. For several years, we heard that if we build another pipeline, it will solve the differential. You may have noticed that the differential is gone and we didn’t build a pipeline. The fact is that markets are complicated and our oil is expensive to refine, and that puts us at a global disadvantage.

But weakening our Environmental Assessment Act and weakening public participation will not change that. What will change that is staring at these hard issues in the face and planning for the future. That means economic diversification. Imagine if the 10 billion that our government has, and is going to spend on the Trans Mountain Pipeline, so they say, had been spent on other industries where we know we have a competitive advantage, in order to support and raise those industries. What if we were spending it on our electrification infrastructure and transmission lines? What if we were spending it to build up the high-tech industry, the clean-tech industry, the film industry, or the agricultural industry?

The fact is, these are hard issues facing our country, but they’re not going to be solved by only one industry. They’re going to be solved by all of us working together, and that’s what we need to do.

The Chair: Thank you.

Do you want to add —

Mr. McCartney: Yes, I was going to answer that as well. I thought it was directed to both of us.

I’m from Alberta and there is recognition now that it was a poor planning and public policy decision to rely so heavily on one industry. In the recent election, people are talking about diversification. Canada needs to lead the way, to be the first to have a low-carbon economy. We are the country that can do it. Alberta is the sunniest, windiest place in this entire country, and we can supply renewable energy to the United States. Being the first ones to a low-carbon economy will be of far greater benefit than trying to hang onto an industry which I believe, and I think the science shows, doesn’t have much of a future.

The Chair: With that, thank you very much for your presence.

Colleagues, for our final panel in Vancouver, we have from the Resource Municipalities Coalition, Mr. Rob Fraser, Co-Chair, Mayor of the District of Taylor; from the Fraser Institute, Mr. Bruce Pardy, Senior Fellow, Professor of Law, Queen’s University; and from FortisBC, Mr. David Bennett, Director of Communications & External Relations.You can go ahead, according to whomever wishes to speak first, and then we will follow with questions and answers.

Rob Fraser, Co-Chair, Mayor of the District of Taylor, Resource Municipalities Coalition: The Resource Municipalities Coalition thanks the Senate Committee on Energy and the Environment for this opportunity to speak on an issue that is vital to the economy of Canada.

The primary focus of our remarks today is to provide some context about our view on certain aspects of Bill C-69, and the potential and unintended consequences it may have to the Canadian economy, and confidence in investors from around the world.

The building of a sustainable future for Canadians as a whole has been impacted in recent years by regulatory and process reviews undertaken by the federal government, that have added to Canada’s reputation as a country averse to industrial and infrastructure development. Based on the burden of government regulations, investors are bypassing Canadian opportunities, and this has subsequently resulted in a global ranking of 54th of countries to invest in. This was further reflected in 2017 with the 7.4 per cent divestment by Royal Dutch Shell and ConocoPhillips, reducing foreign investment to $162.2 million. This is a troublesome trend given Canada’s endowment of natural resources, our competitive advantage within the globally interdependent and integrated energy system, and that 32 per cent of Canada’s GDP is dependent on industrial activity.

Resource municipalities across Canada, we don’t represent them, but we believe that we’re reflective of them, have not realized their potential due to failed projects that would have supported economic growth in terms of jobs and revenues; revenues that support health care, education and social programs in our communities. Projects like the Pacific NorthWest LNG and the TransCanada Energy East have cost the Canadian economy approximately 50 billion in investment. Bill C-69 may further complicate the process and further aggravate Canada’s waning competitiveness and may discourage foreign investment.

Our resource municipalities cannot support the proposed impact assessment act, as we believe it fails to modernize the existing legislation that it was meant to replace. It does not appear to shorten the timeframe of the review process, and may create some inconsistencies in factors of considerations, and there are three that we would like to focus on in our remarks this morning.

The first one is clause 17(1), the minister’s obligation. The environment minister’s added discretionary power under clause 17 to prohibit any project that has applied to the agency from proceeding to an assessment simply based on the minister’s opinion may allow the process to become political in nature, rather than administrative.

Clause 18(4), extension of the time limit by the Governor-in-Council, this allows the Governor-in-Council to grant any number of extensions of time based on recommendations by the minister. Again, potentially politically motivated. Repeated extensions may convey a long, expensive decision-making process, which may further deter potential investors.

Clause 119 on Indigenous knowledge. The minister must, in writing, provide a basis for their decision, however, this decision may be based in Indigenous knowledge which is presented in confidence during the review process, and may not ever be disclosed unless a minister receives written consent. With a lack of clarity on how Indigenous knowledge may be considered to be used in the decision-making process, it appears that the minister has a way out of providing full disclosure for their decision.

Clause 119 suggests that some information may be given significant weight without a transparent verification process. With no other applicant receiving this procedural privilege, and as the context of a hearing is to give all participants equality, Indigenous knowledge used as evidence without a verification process is an obvious litigation trigger, thereby, again, increasing the assessment timeframe and decreasing confidence.

With global growth cooling and investment consideration partially based on the burden of government regulation, Bill C-69’s perceptions of being a vague, lengthy, expensive, and potentially politically motivated assessment process, can further aggravate our competitiveness.

The coalition recognizes the intention of Bill C-69, and developing an impact assessment and regulatory system that Canadians can trust and investors can count on, a system that will protect our environment and improve the health and safety of Canadians while enhancing our global competitiveness. In our view, Bill C-69, in its current form, diminishes Canada’s competitiveness globally.

Thank you.

The Chair: Mr. Pardy.

Bruce Pardy, Senior Fellow, Professor of Law, Queen’s University, The Fraser Institute:

Under this bill, if you had millions of dollars to invest in a project, would you bring it to Canada so you could spend that money and years of your time jumping through hoops in a political circus; so the federal government can do a gender analysis of your project; so that it can put the blame on you for global climate change; so you can be used as political fodder for activists bent on preventing any development, no matter how beneficial? I know what I would do. If this bill passes, as an investor, I would run away as fast as I could to some other country that actually wanted my investment.

In this bill, our own government seems determined to prevent our own prosperity. Or perhaps they think that Canadian prosperity is inevitable or natural, and will happen no matter what obstacles they put in the way. This bill is foolish, short-sighted and naive. Canadian prosperity is the result of historical circumstances, a bit of luck, the hard work of our ancestors, and a few organizing principles: predictability in the law, fair treatment by those laws, and openness to commerce and competition.

Bill C-69 undermines all those things. It creates uncertainty. It is discretionary. It is political. It is hostile to commerce. I would not try to fix it. I would scrap it. We have an existing assessment statute. It’s not perfect. It has flaws inherent in environmental assessment. It, too, is an empty shell. It is just procedure. But it provides a modicum of predictability. The National Energy Board, which Bill C-69 will eliminate, is at least a quasi-independent body with expertise and a solid record.

If you really want to fix environmental assessment, then enact some rules, real rules, substantive rules, rules with content. When you build a pipeline, what kinds of environmental impact are not permitted? If you had such rules, any pipeline that complied with those rules would be permitted, and any pipeline that did not, would be prohibited. If you had rules, you wouldn’t need environmental assessment. The reluctance to have rules is the thing that makes environmental assessment necessary. It’s like codifying mob rule. It’s inviting talking and talking and shouting about whose values are going to prevail in any particular circumstance. That’s not the way a free-market economy works. It’s not the way the rule of law is supposed to work. And it’s not the way to build a prosperous country.


The Chair: Thank you.

Mr. Bennett.

David Bennett, Director, Communications and External Relations, FortisBC: Thank you, Madam Chair, and members of the committee. Thank you for the invitation to speak to you about the impact assessment portion of Bill C-69.

FortisBC delivers approximately 21 per cent of the energy consumed in British Columbia, the most by any entity in the province. We deliver natural gas, electricity, and increasingly, alternative forms of energy. We operate two liquefied natural gas storage facilities, and seven hydroelectric generating plants. Our more than 2,200 employees serve approximately 1.2 million customers in 135 communities across B.C. We take very seriously our obligation to the public and our responsibility to ensure that we deliver safe, reliable energy in an environmentally responsible manner to all the communities that we serve.

For FortisBC, the intentions in the government’s legislation align with our core business values. In many instances, they describe our existing approach to managing our relationship with the environment and the communities that we serve at large.

With Bill C-69, the federal government has expressed an intention to improve the environmental and regulatory system for a competitive resource sector and a strong economy, and to get good projects built.

New rules that result in greater public confidence in environmental protections will help support and attract investment in the country; however, this represents one part of the challenge as we see it. Project proponents need to know that approval processes will not only be rigorous, but can be counted on, and result in clear, timely decisions.

FortisBC supports the amendments that the Canadian Electricity Association highlighted in its submission to this committee on February 21.

FortisBC believes that, without reasonable and constructive amendments, the implementation of the IAA, as written, will hinder Canada’s economy and competitiveness, and prevent many essential infrastructure projects from being built. Therefore, we are bringing forward a limited set of targeted, but important, amendments that would better align the act with an ambition to advance both economic and environmental objectives.

The following concerns within Bill C-69 merit consideration.

One: predictability of timelines. The bill should ensure that the legislated timelines for review be appropriately bounded and predictable. Defining milestones with clear timelines for the various steps would provide certainty and transparency for all parties involved in the assessment. Proponents need to understand what is expected of them in order to adequately meet early planning requirements.

Two: the minister’s powers to designate projects. From the outset, proponents should be able to assess a project’s likelihood to be reviewed. The minister’s power to designate projects that are not on the designated project list should be based on predetermined, publicly available criteria, and only be used in unique or exceptional circumstances.

Three: clarity of scope. The bill must ensure that the scope of application for a designated project is clear and predictable. We recommend that clear criteria be established that outline when and how the minister will delegate impact assessment responsibilities. Predictability and line of sight throughout the entire assessment process is essential for proponents who invest significant funds into project development. Therefore, it should be expected that proponents receive, at an early stage in the process, a scope of information and requirements for which the impact assessment will be measured.

Four: UNDRIP. The bill should contain specific and unambiguous guidance for implementing UNDRIP and other Indigenous-related provisions, particularly related to infrastructure project reviews. We support early engagement and participation of Indigenous peoples at every stage of the impact assessment process. FortisBC has very positive experiences from early engagement with Indigenous peoples, and we have formalized early inclusive dialogue in our Statement of Indigenous Principles. Currently, however, it’s not clear how Bill C-69 will be coordinated with the government’s plans to implement the UN Declaration on the Rights of Indigenous Peoples, particularly with regard to free, prior and informed consent.

Five: jurisdictional overlap. The majority of our projects fall under provincial oversight. I would highlight that British Columbia is currently conducting its own EA revitalization. We believe that it’s critical that the project list focuses on major, large-scale projects of national significance that may have material, adverse impacts in areas of federal jurisdiction, and for which the conduct of an impact assessment is likely to add meaningful value.

In conclusion, we want to reiterate FortisBC’s overall support for this government’s intent to improve environmental and regulatory processes. We appreciate this opportunity to appear before you today and to highlight our recommendations that we believe provide clarity in Bill C-69. We want to see Canada succeed, become a greater destination for global energy investment and a leader in clean energy development while protecting the environment, and advancing reconciliation with Indigenous peoples, and creating economic opportunities for all Canadians.

The Chair: Thank you very much for your statements.

Now we’re going to go to questions, starting with Senator Neufeld.

Senator Neufeld: Thanks to all three of you for being here and giving us your presentations. I have one question for each of you, and I’ll start with my good friend, the Mayor of Taylor, which is just down the road from where I live in Fort St. John.

Mr. Fraser, there’s a standing test in CEAA 2012 which says, you have to be directly affected or expert. That’s done away with and they just open it wide up. So, in the District of Taylor, let’s compare it to, if you’re making a change in rezoning in Taylor, it’s the people in Taylor that get to actually talk to you. Would you think it would be fine for the people from Fort St. John or Dawson Creek to come and tell you what you should be doing in Taylor?

Mr. Fraser: Thank you for that question.

And it would be difficult to allow citizens from other communities to come in and talk to us about our zoning and the things that are going on within the municipality. And, and I think, when it comes to this process, I would agree that there needs to be some test, otherwise, this process will be so long, with people who have every little concern, that may not contribute well to the process of determining the environmental impacts or any other impacts on a particular project. I would use that analogy that we wouldn’t want to see somebody else coming into our community and — they could speak their mind. They’re Canadians and they’re always welcome, but it would put a burden on our process to do it in a timely fashion.

Senator Neufeld: Okay. Thank you.

Mr. Pardy, what happens is the NEB and the Canadian Nuclear Safety Commission have disbanded. Both of them are respected worldwide for the work they do. It seems as though only in Canada a few people say we can’t trust them anymore. It’s quite interesting, to me, to always hear that kind of thing. But now we would be, if there were a hearing, the Nuclear Safety Commission, for instance, might only have one person on the panel, where before it actually had all kinds of people and experts on that panel. Can you tell me how this would work?

Mr. Pardy: Well, I don’t know how it’s going to work. I think it will work quite badly. But I think it’s a reflection of what this bill is about, which is to politicize this process. What you have got essentially for every single project is a very broad philosophical policy debate, the kind that should occur during elections that we elect our legislature to decide upon and put into legislation.

What’s happening here is that those legislative decisions are being avoided and put over into these processes. So, everybody who has an opinion about anything remotely connected to a proposal is invited to put it on the table. And these debates will become untenable, very broad, and will function so as to frustrate the development and the investment that we have been talking about.

I think it’s a shame that our well-regarded institutions are being ditched. I think it’s a very big mistake. As I said in my remarks, it’s essentially an invitation to a shouting match.

Senator Neufeld: Okay, thank you.

My last question is for Mr. Bennett. We heard from the hydro folks and whatnot, that it will be very difficult to build projects using water, for instance, under this new bill. How do you think it’s going to affect the building of transmission lines? Your company is involved in both of those aspects, generating electricity by water and transmission lines. I know how difficult it is to build transmission lines in British Columbia. How much more difficult would it be under this bill?

Mr. Bennett: Yes, and if you think it’s hard to build transmission pipelines, try building transmission electric lines there.

Senator Neufeld: I know.

Mr. Bennett: They’re already difficult. The comments that we made in terms of clarifying exactly what is reviewable and making sure that everybody understands what the rules are upfront is really important. We’re not philosophically opposed to looking at the regulations and seeing if we can improve them. Canada is a place where we like to have debate and we appreciate that we can have that kind of input into projects. I think they make better projects. But we need to make sure that, whatever we do, we don’t set up a system that doesn’t have logical timelines and clear criteria.

Senator Woo: This is a really interesting panel. We have one witness who wants us to kill the bill. He thinks it’s irredeemable and he suggested it’s because the government is willfully trying to subvert our own prosperity. We have a witness who supports the intent of the bill by some very specific recommendations that we can look into in more detail, based on the CEA recommendations.

But Mr. Fraser, I want to ask my question to you, because your presentation at first expressed what I thought were quite deep reservations about the bill, but then when you got to the specifics, the three items that you gave at clauses 17(1), 18 and 119 of the bill are very specific technical issues that can be solved quite easily, I think. I’m trying to reconcile what seemed to me to be a deep dissatisfaction with the bill, you used very strong language, and three specific complaints that are, I wouldn’t say trivial, but they can be solved fairly easily. Could you explain a little bit more why you used such strong language, and if, in fact, you do feel so strongly against the bill, what are the other areas that are problematic beyond these three technical questions?

Mr. Fraser: Well, our review is fairly narrow, and we’re just looking at it from the perspective of the average working man and getting a job, and, and understanding that these projects need to be passed through some type of a process to ensure that all of their impacts are looked at. We’re mayors. We’re lay people. We’re not technical in nature. But from a basic reading of that, those were the things that jumped out at the mayors was that the minister has an awful lot of discretion. You may say that they’re easy to fix, and maybe they are, but as lay people, looking at and reading the bill, there’s no clarification with respect to those. If there are easy ways to deal with that, so be it. But for us it has to do with the ability to extend these timeframes and reducing investor confidence.

Senator Woo: Well, it’s very helpful, because in both your and Mr. Bennett’s case, we have some very specific challenges that you have raised with us. All of us here are very concerned about amendments that can address the challenges. And I take it that, if we can address those three items, your view of the bill will change?

Mr. Fraser: Certainly.

Senator Woo: Okay. Thank you very much.

The Chair: Senator Simons.

Senator Simons: Thank you very much, Madam Chair.

I want to address my questions to Mr. Bennett. I’m from Alberta, so Fortis is a name that I know well. When we met earlier with the group from the Hydroelectric Association, they expressed various concerns about the third part of the bill, the navigable water sections, which say that you can’t, basically, interfere with the flow of navigable waterways. They were concerned, leaving aside the impact assessment part of the bill, that the navigable waters amendments would make it, not just difficult to build a new hydroelectric project, but to maintain the ones that they have. You didn’t speak to that and I wondered if you shared those concerns.

Mr. Bennett: Yes, as I only had five minutes, I tried to stick to just a few things.

Senator Simons: Well, this is my opportunity.

Mr. Bennett: But, yes, the navigable waters changes are of concern to us. We have large reservoirs and if they become, by definition, a navigable waterway, which it looks like the legislation would do, then without having some way of exempting those, our dams across them are impeding a waterway. It puts a lot more regulation around improvements and things that we need to do around our hydroelectric facilities.

Senator Simons: All right.

The other question I wanted to ask you was about interprovincial electricity tie-lines. Right now, there is not a lot of interprovincial hydro — I shouldn’t call it that; in Alberta, it’s not hydro — electricity transmission infrastructure.

I was a journalist covering the Alberta Legislature when Premier Ed Stelmach attempted to bring in Bill 10, which was to do advance planning for high-voltage transmission lines, and there was tremendous pushback from people. It’s one of the things that gave the Wild Rose Party its impetus.

I’m just wondering if Fortis, given that you operate in both Alberta and British Columbia, have you been looking at all at the prospect of interprovincial transmission infrastructure? Would that be something that would be in your wheelhouse?

Mr. Bennett: Yes, Fortis’s business is building energy infrastructure, so we would be interested in those types of projects. I think we could spend the whole day talking about how the Canadian electricity system developed and why those tie-lines aren’t there, but there’s a different issue.

But are we interested in investing in projects like that? We would be.

Senator Simons: There is no way to green Alberta’s grid without help from British Columbia. I mean, in Alberta, we burn coal — not so much anymore — we burn natural gas and we have virtually no hydropower in Alberta’s grid. Unless we have mechanisms in place that allow us to build those tie-lines, I don’t see how Alberta ever gets to that point.

Mr. Bennett: It’s a very complicated issue, but from an economic standpoint, we have a lot of hydroelectric power. Alberta actually has a lot of wind and solar resources. If we wanted to optimize, connecting two systems is always a good thing, but there are other reasons why that doesn’t happen.

Senator Simons: Yes.


Senator Carignan: My question is for Bruce Pardy. The bill addresses the issue of cumulative effects. I will look at all the criteria that should be considered. I will quote subclause 22(1)(a):

. . . the changes to the environment or to health, social or economic conditions and the positive and negative consequences of these changes. . . . including

(iii) the result of any interaction between those effects;. . .

If I add public participation, and I quote:

11 The Agency must ensure that the public is provided with an opportunity to participate meaningfully. . . . for a possible impact assessment. . .

Based on those two, anyone could seek recourse by saying that the obligation to consult them was not met, that their opinion was not adequately taken into account. I mean, that’s nonsense. Did I properly summarize your thought and the potential litigation on numerous issues?


Mr. Pardy: Yes, absolutely right. When your list of factors includes everything, that means nothing has priority and the decision-maker can choose anything at all. If your instructions in the statute are to consider social, environmental and economic factors, then you can pick any of those things to prioritize, which means you haven’t given a clear indication about what’s important. You have given a blank slate to the discretion of the decision maker. When you combine that, as you said, with wide-open standing and very broad participation, that means, exactly as you said, that anybody has carte blanche to say anything about any of those areas. And let’s be frank: social, economic and environmental is everything there is. So, you have a complete, wide-open barn door through which anybody can walk and bring up any kind of issue. It is the directing of these very broad public policy debates of specific projects which is unfair and which they don’t deserve.


Senator Carignan: The bill introduces not only discretionary power, but also arbitrary power. In the end, there are no longer any reasonable criteria in decision making for the minister. It has more to do with arbitrary power than discretionary power. When it says that the minister’s discretionary power should be regulated, it should rather say that there is insufficient criteria for the power to be discretionary. The arbitrary power should be regulated.


Mr. Pardy: Let’s put it this way: If your mandate is to achieve the public interest, the problem is that the public interest is like beauty. It lies in the eyes of the beholder. So the statute doesn’t define what it is that you have to achieve. As long as the minister turns his or her mind to the various matters that are listed in the statute, any decision at all, and I mean that literally, any decision at all is allowed by the statute. There are no criteria. There are no substantive rules. There are no substantive requirements.

So, yes, it’s like an arbitration. As far as the legislative process is concerned, it’s like a dereliction of duty. It’s as if Parliament has said, “You know what? We don’t want to make a decision here about what’s important. We want to put that off into these very specific decisions and let the minister decide for him or herself.”

Senator MacDonald: I thank the witnesses for being here today. I think I will direct my question to Mr. Pardy.

The Fraser Institute does a lot of good economic analysis over the years. Last month, the U.S. projected 150,000 new jobs. They had close to 200,000, about 195,000 new jobs. In Canada, we lost about 7,500 full-time jobs. That’s almost an SNC-Lavalin level of job loss. Given that our economies are basically integrated, why is our economic performance not only lagging behind the U.S., but seems to be increasingly falling behind the U.S.?

Mr. Pardy: Great question. The answer would have to be that it’s not a level playing field, because the conditions here are not as conducive to economic activity as they are there. You can look at the jobs numbers, as you have done. You can look at the construction of pipelines over the past 10 years. For causes, you can look at tax rates; you can look at rules; you can look at sovereign risk, which I think is a key term. Sovereign risk is the risk that the governing powers will act against you, and sovereign risk is one of the things that this bill creates. It creates uncertainty. And when you don’t have investors bringing their money to Canada, you won’t get job growth, you won’t get economic growth and you won’t get pipelines built. Your economy will stagnate. I think we’re seeing that because of the different situations in these two countries.

Senator MacDonald: Yes.

You talked earlier about the NEB, the National Energy Board, and, of course, the government is going to get rid of the National Energy Board because they apparently believe that it can’t do its job. Yet the government is asking the National Energy Board to adjudicate in reference to the Trans Mountain Pipeline.

This is a question for all three of you. Is there not some sort of an inconsistency here, when they want to get rid of this board because they say it’s not adequate and it doesn’t do its job properly, yet, not only are they asking it to adjudicate on the Trans Mountain Pipeline, but they’ve practically telegraphed their opinion that they expect it to be approved?

Mr. Pardy: Obviously, yes. But the reason that I think that they are getting rid of the NEB is to be able to have more political control over the outcome than they would have it with it. Now, of course, this statute is not in force yet, so the existing situation with the previous act still stands, so the NEB is still in business as of right now. But that can be really the only rationale for getting rid of it. If it’s good at its job, and if it produces what are essentially independent recommendations, then if you want to control the outcome you need to get rid of that agency. That seems to me to be the plan.

Mr. Bennett: I’d just add, it’s quite common when rules are being changed, that there’s a grandfathering. So, it’s not inconsistent from that perspective. I have been 30 years in the industry, and rules do change from time to time. Another regulator will follow on, but that is not inconsistent with the way things change. Typically, there is a period of time where there’s a transition.

Senator Cordy: Thank you very much to the three of you for being here in Vancouver today to talk about the bill.

Mr. Pardy, you’re a lawyer and you’re at Queen’s, right?

Mr. Pardy: Yes.

Senator Cordy: Have you had any experience in terms of being a proponent or an intervenor for an environmental assessment under CEAA 2012 and in the current legislation?

Mr. Pardy: You mean have I ever acted for a party involved?

Senator Cordy: Yes.

Mr. Pardy: No.

Senator Cordy: Okay, thanks.

Mr. Bennett and Mr. Fraser, you actually brought forward a number of similar concerns about the current legislation. Do you think that the early planning stage, that is going to be brought forward in Bill C-69, will be helpful in terms of getting the big issues out front early?

Mr. Fraser: If the early planning stage allows proponents to get their ideas onto the table and a good review of that, then yes, you’ll be able to get to the quick of it fairly soon.

Mr. Bennett: I would agree. We had some comments about making that a little clearer, but in the projects that we do, we do a lot of planning. We’re years in the planning for many of these projects. So, having some coverage of that within the legislation, and I don’t think it would hurt. It probably gives some of the other stakeholders a better indication of what to expect in the process, and it’s always part of our process.

Senator Cordy: I want to thank you both very much, because it’s always helpful if we get suggested amendments coming from our witnesses, because there are actually a lot of commonalities in some of the things that we have heard. That’s very helpful, so thank you to the three of you.

The Chair: Senator Patterson.

Senator Patterson: Mr. Bennett, I noted your recommendation that the power to designate projects be based on predetermined, publicly available guidelines. We have had a lot of concern about this so-called project, less than the mystery surrounding it. I asked this question to officials from Environment and Climate Change Canada when the committee first began studying the bill, and I was quite astonished to hear them say, in presenting the bill, that the guidelines for designating certain projects were in a consulting phase and that that phase involved a discussion document. So, very early consultation. So, I’m not holding my breath that we’re going to learn much about these guidelines before we have to consider passage of the bill.

Does Fortis have specific thoughts on this or concerns about the designation of projects? Do you have certain thoughts on which projects should be listed or exempted?

Mr. Bennett: We haven’t gotten that far. We have adopted the CEA’s recommendations. We went through them and felt those would work for us. The comment that we have is that it is important for a proponent to know, upfront, whether they’re in or out of the process. It’s hard when you don’t know whether you are in or not.

Certainly, as a proponent, we have a good feel for things that will be of interest. You could always have some ability to bring something in. But the way the legislation reads right now, it seems pretty discretionary. That’s what our concern is; that you don’t know whether you’re in or out when you’re contemplating a project.

Senator Patterson: Thank you.

The Chair: With that, we have finished this panel. Thank you very much.

(The committee adjourned.)

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