THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Thursday, September 19, 2024
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day with videoconference at 9 a.m. [ET] to study Bill C-49, An Act to amend the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to other acts.
Senator Paul J. Massicotte (Chair) in the chair.
[Translation]
The Chair: My name is Paul Massicotte, I am a senator from Quebec and I am chair of the committee.
Today, we are holding a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. I would like to ask all senators and other participants who are here in person to consult the cards on the table for guidelines to prevent audio feedback incidents.
Please keep your earpiece away from all microphones at all times. When you are not using your earpiece, place it face down on the sticker placed on the table for this purpose. Thank you all for your cooperation.
I would ask my colleagues to introduce themselves, beginning on my right.
Senator Verner: Josée Verner from Quebec.
[English]
Senator Prosper: P. J. Prosper, Nova Scotia, Mi’kma’ki territory.
Senator White: Judy White, Ktaqmkuk, better known as Newfoundland and Labrador.
Senator McCallum: Mary Jane McCallum, Manitoba.
[Translation]
Senator Gold: Marc Gold from Quebec.
[English]
Senator Petten: Iris Petten, Newfoundland and Labrador.
Senator Francis: Brian Francis, Epekwitk, Prince Edward Island.
Senator Manning: Fabian Manning, Newfoundland and Labrador.
Senator Martin: Yonah Martin, British Columbia.
Senator D. M. Wells: David Wells, Newfoundland and Labrador.
[Translation]
Senator Galvez: Rosa Galvez from Quebec.
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
[English]
Senator Arnot: David Arnot, Saskatchewan.
[Translation]
The Chair: Welcome colleagues and everyone watching our proceedings across the country.
Today, the committee is continuing its examination of Bill C-49, An Act to amend the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to other acts.
As you know from the testimony of our partners, the Indigenous participants who gave their opinions, we have heard a lot of shocking comments that left us somewhat disappointed. So we asked people, our officials, to take part in the meeting this morning, to be present, and to try to answer a few questions we may have following testimony that was a little unsettling.
I’ll start with the officials. Yesterday, we received a rather important letter from the minister. I think we all got a copy and have had a chance to read it. The officials may have something to add to the letter. Are there any comments you’d like to make to put us in a better position and give us a better understanding of the dilemma we’re facing?
Abigail Lixfeld, Senior Director, Renewable and Electrical Energy Division, Natural Resources Canada: Abigail Lixfeld, Senior Director, Renewable and Electrical Energy Division, Natural Resources Canada.
[English]
We are prepared to answer any questions that you may have, further to the testimony that was heard. We do not have a prepared statement to make this morning. We understand that Minister Wilkinson submitted a letter this morning that shared some of his thoughts and perspectives on the way forward. However, we are pleased to answer any questions that may be helpful as you proceed to your clause-by-clause consideration.
Senator D. M. Wells: I wasn’t aware there was a letter sent this morning, so I haven’t seen it. Perhaps the officials could tell me the essence of the letter.
Ms. Lixfeld: Yesterday evening, Minister Wilkinson met with Senators McCallum, White, Prosper and Petten —
An Hon. Senator: It wasn’t Senator McCallum. It was Senator Francis.
Ms. Lixfeld: My apologies. The minister offered an opportunity to discuss the concerns raised at the committee meeting on Tuesday evening. The minister acknowledged the frustrations registered by Chief Peters. He reiterated the steps that officials had taken in the federal government as well as the provinces of Nova Scotia and Newfoundland and Labrador to engage with communities throughout Atlantic Canada in the development of Bill C-49, as well as some of the engagement opportunities that have taken place since the bill was introduced.
He also acknowledged that officials could have done more to engage with Indigenous communities throughout the development of the bill and affirmed the provisions contained within Bill C-49 that reinforce the obligations of the regulator and the federal and provincial governments, which are part of the joint management relationship, to ensure that the duty to consult is fulfilled at all stages of the life cycle regulation of any project that comes forward, as well as some of the steps that are required outside of the legislation, whether that is through impact assessment, regional assessment or the regulation and development stage, et cetera. He offered his personal commitment that, through the implementation of the legislation and through all other measures, he would ensure that duty is fulfilled. He offered his sincere and personal commitment to take on any observations offered by the Senate.
Senator D. M. Wells: Is this the essence of the meeting or the letter?
Ms. Lixfeld: This is articulated in the letter. The letter also concluded with a recognition of the economic opportunity before Canada in terms of the development of offshore renewable energy, hydrogen and other developments, as well as the particular time considerations the federal government is facing in terms of being in a minority Parliament, some of the challenges should the bill be further delayed and that this opportunity might potentially pass us by. I believe that is summarized in the letter. Thank you for giving me this opportunity.
Senator McCallum: I quickly read that letter. Natural Resources Canada said that we could have done more to ensure consultation. But this lack of consultation has occurred since I have been here in 2017, and not much has changed. I don’t understand. They have had so much time to do this, because the most important engagement occurs when the bill is drafted, which prevents the necessity for amendments. But when they are not engaged, they are given a passive role. That is not respect, and it isn’t engagement of any kind. The only way they can become active is to insert amendments and look at what is in the bill. You said that it is committed to ensuring ongoing and meaningful dialogue. We haven’t seen that commitment, and it is stated over and over again. When you said that the duty to consult exists independently of Bill C-49, we are looking at the missing items inside the bill that should have been there. This affects the rights and interests of Indigenous people.
When the provincial minister testified, I was shocked to see that one of the First Nations representatives who came to the committee was a chief from Saskatchewan. That’s why I raised the question about “any person.” That Saskatchewan chief’s support of the provincial government overpowered the original peoples of that area.
So, yes, we received the letter, but we still don’t have confidence that the rights will be respected. I mean, I don’t. I’m not saying other senators feel like that. It needs to be entered into evidence.
Senator Galvez: I want to know if we will have access to the functionaries when we discuss the several amendments we have received.
The Chair: They will remain here for the duration of our meeting.
Senator Galvez: The duration, exactly. Thank you.
The Chair: This includes for other matters we have to clarify.
Senator Gold: Chair, I’m proposing that we proceed to clause by clause if that’s the will of the committee, which is really what we are here to do. Thank you for your presence.
The Chair: We’ll proceed to clause by clause.
Before we begin, I would like to remind senators of a number of points. If at any point a senator is not clear where we are in a process, please ask for clarification. I want to ensure that we all have the same understanding of where we are in the process at all times.
[Translation]
In terms of the mechanics of the process, I wish to remind senators that, when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of a clause. Therefore, before we take up an amendment in a clause, I will be verifying whether any senators had intended to move an amendment earlier in that clause. If senators do intend to move an earlier amendment, they will be given the opportunity to do so.
One small point: If a senator is opposed to an entire clause, I would remind you that in committee the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause. I refer to Beauchesne citation 698(6), which notes that an amendment to delete a clause is not in order, as the proper course is to vote against the clause standing part of the bill.
I would also remind senators that some amendments that are moved may have a consequential effect on other parts of the bill. Again, I refer senators, to Beauchesne citation 698(2), which notes that an amendment must not be inconsistent with, or contradictory to, the bill as so far agreed to by the committee, nor must it be inconsistent with a decision which the committee has given upon a former amendment.
In the spirit of this statement, it would be useful to this process if a senator moving an amendment identified to the committee other clauses in this bill where this amendment could have an effect. Otherwise, it would be very difficult for members of the committee to remain consistent in their decision-making.
Staff will endeavour to keep track of the places where subsequent amendments need to be moved and will draw our attention to them. Because no notice is required to move amendments, there could, of course, have been no preliminary analysis of the amendments to establish which ones may be of consequence to others and which may be contradictory.
If committee members ever have questions about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair I will listen to argument, decide when there has been sufficient discussion of a matter or order and make a ruling.
The committee is the ultimate master of its business within the bounds established by the Senate and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
Third reading is the final stage in the consideration of the bill as a whole. Amendments to clauses may also be moved at third reading.
As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend on your cooperation, and I ask all of you to consider other senators and to keep remarks to the point and as brief as possible.
Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which provides unambiguous results. Senators are aware that any tied vote negates the motion in question.
Are there any questions on any of the above? If not, we can now proceed.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-49, An Act to amend the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to other acts?
Some Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Some Hon. Senators: Agreed.
The Chair: Is it agreed, with leave, that the remaining clauses be considered in groups of 10?
Some Hon. Senators: Agreed.
The Chair: Shall clauses 1 to 10, on pages 1 to 4, carry?
[English]
Senator D. M. Wells: Honourable senators, I ask that the decision on clause 7 be postponed.
[Translation]
The Chair: Is it agreed, honourable senators?
Some Hon. Senators: Agreed.
[English]
Senator D. M. Wells: Is a reason necessary?
The Chair: Go ahead.
Senator D. M. Wells: I have a comment on a later clause that if changed would affect clause 7, so I would rather address clause 7 after I address a clause later in the bill.
The Chair: All in favour?
Hon. Senators: Agreed.
[Translation]
The Chair: Shall clause 1 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
[English]
Hon. Senators: Postponed.
The Chair: Postponed, okay.
[Translation]
Shall clause 8 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clauses 11 to 21 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clauses 22 to 32 carry?
[English]
Senator D. M. Wells: Chair, on clause 28, I would move that not carry.
The Chair: Can you explain?
Senator D. M. Wells: Yes. Clause 28 in this bill has nothing to do with renewable resources. It only has to do with petroleum resources. The essence of the clause removes the principle under which the Atlantic Accords signed in the 1980s between Newfoundland and Labrador and Canada as an act that gave joint management to the offshore to both jurisdictions. There are a number of items in this clause that remove that spirit and letter of agreement that it be equal under the two jurisdictions. I’m going to give a few examples if I could.
It is of the interest in respect to any portion of the offshore is subject to the interest if at all any portion of the offshore is referencing surrendering land rights. There is the power for the federal and provincial ministers, by order, to jointly cancel the interest in respect of any or all portions of the offshore. So the licence can be cancelled.
One of the things that has made our offshore so strong is the result of the Atlantic Accord Acts of 1985-86 which gave authority to regulate to the offshore board.
Colleagues, some of you may know that I was deputy CEO of the Canada–Newfoundland and Labrador Offshore Petroleum Board for a number of years prior to coming to the Senate. While this clause has nothing to do with renewable resources and only oil and gas, it serves to suppress investment by putting into question the land tenure rights that have gone through an approval process, a bidding process and, of course, in some cases, a production process.
We only have large operators in the Newfoundland and Labrador area. If a company has invested time and money — and the time is in years and the money is in the billions — and if there is uncertainty as to whether governments will come in and cancel what they have invested in, that will serve to suppress the investment, which I mentioned, and drive investment to other jurisdictions and away from Newfoundland and Labrador.
Colleagues, I want to read a few lines of testimony. One is from Mr. Max Ruelokke, and I worked side by side with Mr. Ruelokke for three years while I was on the board and deputy CEO. His comment was, “Another significant factor —” for any large offshore investment “— is the existence and certainty of an appropriate regulatory regime.”
We have that. He continued, saying:
Up until now, we have met that test as well. However, with the potential passage of Bill C-49, this situation will change drastically. Specifically, Section 56 of this Bill puts any and all offshore areas at risk of being rendered unusable for resource development, even though such activities may already be underway, and with appropriate regulatory approval.
Colleagues, we have regulatory approval. We have processes that will give confidence to business. This removes that.
Mr. Kris Costello, director of operations for OilCo, which is the Oil and Gas Corporation of NL, said:
This section 28 should be removed in its entirety, as investors will not be willing to put capital at risk without the relative certainty of land tenure over the life of their project.
Lisa Baiton of the Canadian Association of Petroleum Producers, or CAPP, stated:
From our perspective, the primary concern with Bill C-49 relates to clause 28 —
— which is the one I seek to remove —
— provides the authority of the Government of Canada to unilaterally revoke oil and gas licences in any environmental or wildlife conservation or protection area. While the Government of Canada has previously announced that oil and gas activity in a marine protected area is prohibited, Bill C-49 expands these provisions beyond MPAs, resulting in uncertainty for both current and future investors.
Colleagues, I have many more quotes and comments from experts in the industry. I also consider myself an expert. When I read clause 28 of the bill, it gave me great concern. One third of Newfoundland and Labrador’s revenues come from the oil and gas sector, whether as royalties or taxes — taxes from individuals, taxes from the thousands of Newfoundlanders and Labradorians and, in fact, Canadians who work in the offshore.
Colleagues, for that reason, I wish to strike clause 28 of the bill. I want to reiterate it has no effect on offshore renewables.
Senator Petten: I am against that. First, I would like to know from Senator Wells if he has spoken to the Newfoundland government about the amendment.
Then, because you have surprised us with no prior notice of this amendment that you would like, maybe the officials can help us by responding to that.
Senator Gold: The government opposes this amendment for several reasons. I will give you the bullet points, and perhaps the officials could correct me if I’m misstating anything.
This bill was the product of long negotiations between the governments of Canada, Newfoundland and Labrador and Nova Scotia. Indeed, the bill follows upon memoranda of understanding between, to my understanding, Canada and, in this case, Newfoundland. That memorandum of understanding refers to tenure and lifestyle project regulations, the revenue framework and a host of practical issues upon which Newfoundland and Labrador and Canada agreed.
A change to this particular section would have serious consequences. First, as senators know, identical legislation must be passed by Parliament and the legislatures of Nova Scotia and Newfoundland and Labrador. Any change, however modest, virtuous or well intentioned, would require Parliament to then go back — in this case, a government in a minority situation — to determine whether these amendments are acceptable or not.
More importantly, the federal government would need to go back to the governments of Newfoundland and Labrador and Nova Scotia to see whether these amendments would be acceptable to them. Even if they were, that would require Newfoundland to legislate this change. It would require Nova Scotia to go back, certainly to cabinet if not to the legislature since the bills are already on the table. The delays would be significant and material, and the risks, given the political situation that we are in, would be enormous.
I have one last point and then, please, if I have misstated anything, correct me. I want to be as clear as I can.
This change in this part of the bill would not be reflected in the Nova Scotia section of the bill. You would then have a mismatch between two provisions in a true political relationship between three levels of government who are in relationship one with the other, including Newfoundland and Labrador with Nova Scotia.
For all of these reasons, and there may be more of which I’m unaware, the government strongly opposes the deletion of clause 28. Thank you, chair.
Senator D. M. Wells: Senator Petten asked me a question, so I would like to address that. Then I would like to address some of Senator Gold’s points.
Senator Petten, yes, I did speak to the Government of Newfoundland and Labrador. I spoke to the minister in charge of natural resources, Andrew Parsons. We had a lengthy discussion, specifically on the provisions of the marine protected areas, or MPAs. He gave me a document from his officials that gave him comfort on the MPAs. That solely has nothing to do with the other provisions of clause 28 that I mentioned.
Senator Gold mentioned the mirror legislation that Nova Scotia has put forth.
Senator Gold, that they have jumped the gun on putting down legislation prior to the legislation being passed by the federal government is not on us. It’s not on this committee. In fact, it’s not on the federal government. It’s on Nova Scotia. When legislation is tabled, of course, any amendments can be made. If they wish to mirror whatever our legislation ends up being, then they can do that. Newfoundland and Labrador, I think, played it right by not tabling legislation until the federal legislation is finished, and it’s not. That’s why we’re here.
Also, there is a proper legislative process, which Nova Scotia may not have done. I think they have jumped the gun on this, and I’m not alone in that thought. The legislative process should not be the reason for getting this wrong. Some other jurisdiction’s legislative process should not be the reason.
You mentioned the memorandum of understanding, or MOU. The MOU between the Province of Newfoundland and Labrador and the federal government and the Province of Nova Scotia and the federal government dealt with the jurisdictions for wind energy. The removal of clause 28 makes no difference to that MOU whatsoever. In fact, you said it throws it into a turmoil, or some similar word that you used. I can’t remember, but it was something like that.
In fact, removal of clause 28 means the status quo stands. Since 1986, when we put this regulatory regime in place, until now, there has been no turmoil. It reverts to the agreement between the Government of Newfoundland and Labrador and the Government of Canada back in the 1980s.
The Chair: Does the public service have anything to add?
Senator D. M. Wells: While they are deliberating, perhaps I could catch some of this vacuum.
The Chair: As long as you are not repeating what you have already said.
Senator D. M. Wells: No, I have new things. There was also a reference to a letter from Premier Furey, and I have spoken briefly with him about this. He sent a very good letter. The six paragraphs of the letter, each paragraph, except for one, which is a greeting paragraph, have to do with renewable energy. There is nothing in there that has to do with oil and gas. Not to assume that he agrees or disagrees, but his letter was solely about needing the necessary supports in place for renewable energy opportunities to establish a collaborative management framework for offshore renewable energy, to seize the opportunities in offshore renewable energy.
I’m on board with that. I absolutely support the expansion of the boards’ mandate to take into account these new opportunities. I think it is a great idea. I’m excited about it. But there were no comments from the premier regarding the removal of the rights and privileges negotiated by Newfoundland and Labrador under the Atlantic Accord Acts.
The Chair: If I could ask you a question while we wait — in the spring of 2024, the minister sent a letter to the House of Commons committee on this issue, and it basically says, “Do not worry. We will respect private interests,” and so on. Is that not satisfactory for you?
Senator D. M. Wells: “Do not worry. We will respect private interests” is fine until you have a minister who doesn’t respect private interests. That is my concern. That is why there is a regulatory regime in place that is aside from political interference. You might have such a minister. In fact, we have a federal minister now, of the environment, whom I think, if he could get a partner, would pull the plug on all offshore development.
In Newfoundland and Labrador, colleagues, it is important to remember not just the quality of the petroleum product — it barely needs refining. In fact, in some cases, it does not need refining. The cost of extraction is about $15 a barrel. The cost of extraction in Saudi Arabia is $10 a barrel. The cost in Alberta and Saskatchewan is $65 a barrel. In Newfoundland and Labrador, we don’t need pipelines to get it to market. It has ready access to the markets that are requesting the product. It is an important consideration.
The Chair: Are you prepared to join us? Is there anything the public service would like to add?
Senator Gold: If I may, with respect — and thank you for the opportunity — Senator Wells, you are not wrong to quote what you did from Senator Furey, but you left out the most important part. The letter from Premier Furey, and indeed the letter from Nova Scotia, was to pass the bill without delay as is without amendments. That is the position of the Government of Newfoundland and Labrador. The Government of Newfoundland and Labrador is primarily responsible for how it manages its resources, whether offshore, petroleum and so on.
It is the stated position of the Premier of Newfoundland and Labrador that this bill should be passed as is. To me, that is the important part of the letter. The rest of it obviously deals with the fact that this updates the Atlantic Accord to broaden the scope of activities which the agreements between the federal government and the provincial governments are involved with.
Annette Tobin, Director, Offshore Management Division, Natural Resources Canada: Good morning. We met in June, and I think we had an exchange on this item.
For your own background, I have been working in this space on the very complicated Accord Acts for the last 11 years. I will share with you my understanding of what we have worked on and my base knowledge of the province’s position as it relates to this.
First, I want to clarify that Bill C-49 is not limited to renewable energy. We had characterized it as three buckets of amendments, the first bucket indeed being the expansion of the accord acts to include offshore renewables, but the second and third, which my team and I have worked closely on, including the amendments in clause 28, relate to offshore petroleum — for example, significant discovery licences being changed from indefinite to 25 years.
In terms of this particular clause, the Accord Acts remained unchanged for so long with the exception of a few targeted changes. They were recognized by us as well as the provinces — the joint managers of the accords — that there was no tool or ability, should both joint managers want to prohibit activity for the purposes of marine conservation or to address any historical permits versus an active one should they overlap with a marine conservation area, whether established or in the future. Moreover, it would make it consistent with changes that were made to the Canada Petroleum Resources Act in 2016-17, Bill C-55. New tools and authorities were provided in that act for the Minister of Natural Resources, who is responsible under that legislation to prohibit, cancel and compensate should that be the desire. Of course, in the accord acts, the context is different because we have two governments that are equal in that decision-making.
Finally, and I do not want to speak on behalf of the provinces, but if you are interested in my understanding of their interest in and support for this amendment, it’s that it very clearly provides that any decision to prohibit — should that decision be taken by both levels of government — is within the Accord Acts and not prohibited in some other piece of legislation that would not be under the authority of both these ministers. That is my understanding.
The Chair: Thank you.
Senator McCallum: Thank you. I want to ask you about the compensation that will occur, because that will be up to the federal minister. How will that affect the province?
Ms. Tobin: We have not done this. We have not implemented this yet. It may never come to be. This is just a new tool. It depends upon whether the decision or scenario were to happen that both ministers, the province and the federal government, agreed to prohibit an activity and enter into negotiations with an interest holder should there be an overlap and agreed to compensation, should that be warranted. There is no ability for the federal minister or the provincial minister to do that unilaterally.
What has been agreed upon is — and this is very hypothetical — if it were to occur for the purposes of a federal conservation area, if you had a federal MPA established in the Nova Scotia offshore, and the provincial minister agreed to prohibit, negotiate and potentially cancel it, then it would be the federal government, given that it is a federal conservation area, which would be responsible for the compensation. The federal government would be paying that, for lack of a better word, compensation. Conversely, if it were a case of the provincial government and a desired provincial marine protected area that the federal government agreed to, then the province would pay for that compensation.
The Chair: Thank you very much.
Senator D. M. Wells: Because I know it well, I want to read right from subclause 5:
The Federal Minister shall, in the order, specify the amount of the compensation to be granted to the interest owner under subsection 56.3(2) in respect of the cancellation of the interest.
So the federal minister has that right.
Second, if an interest is cancelled by order under that subsection:
His Majesty in right of Canada may —
— may —
— grant an interest owner the compensation that is specified in the order. If the order cancels a petroleum-related interest, it is subject to section 124 in respect of the amount of that compensation, and, for the purposes of this subsection, any reference to the Regulator —
— which is what was negotiated under the Atlantic Accords —
— in that section is to be read as a reference to the Federal Minister.
So it switches out, colleagues, the regulator, which is the joint management regime that was set up, to federal control.
The Chair: Thank you. We have heard enough to develop our own opinions. I would like to proceed to a vote. We will start with a voice vote.
All in favour of the proposed amendment, please acknowledge.
Senator D. M. Wells: Just so it is clear, the vote is not if you are in agreement with the amendment, because there is no amendment. It is striking —
The Chair: It is the removal of the paragraph.
Senator D. M. Wells: Is the removal of the paragraph what we are voting on?
The Chair: Yes.
Senator D. M. Wells: Okay. Thank you.
The Chair: The procedure is such that we have no choice. Given that we are removing something, we must go to a procedural vote.
I will first ask the clerk to name all the senators present who are entitled to vote at this time, just to be certain.
[Translation]
Raymond St. Martin, Clerk of the Committee: The Honourable Senator Massicotte, the Honourable Senator Arnot, the Honourable Senator Francis, the Honourable Senator Galvez, the Honourable Senator Gold, P.C., the Honourable Senator Martin, the Honourable Senator Manning, the Honourable Senator McCallum, the Honourable Senator Miville-Dechêne, the Honourable Senator Petten, the Honourable Senator Prosper, the Honourable Senator Verner, the Honourable Senator Wells and the Honourable Senator White.
[English]
The Chair: If a member present does not wish to vote, they may withdraw from the table now.
The clerk will now call members’ names, beginning with the chair and followed by the remaining members’ names in alphabetical order. Members should verbally indicate how they wish to vote by saying “yea,” “nay” or “abstain.” The clerk will then announce the results of the vote. The chair will then declare whether the motion is carried or defeated.
All those in favour of the removal of paragraph 28 say “yea.”
Some Hon. Senators: Yea.
The Chair: We should do a recorded vote.
[Translation]
Mr. St. Martin: The Honourable Senator Massicotte?
Senator Massicotte: Nay.
Mr. St. Martin: The Honourable Senator Arnot?
Senator Arnot: Nay.
Mr. St. Martin: The Honourable Senator Francis?
Senator Francis: Yea.
Mr. St. Martin: The Honourable Senator Galvez?
Senator Galvez: Abstain.
Mr. St. Martin: The Honourable Senator Gold, P.C.?
Senator Gold: Nay.
Mr. St. Martin: The Honourable Senator Martin?
Senator Martin: Yea.
Mr. St. Martin: The Honourable Senator Manning?
Senator Manning: Yea.
Mr. St. Martin: The Honourable Senator McCallum?
Senator McCallum: Yea.
Mr. St. Martin: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Nay.
Mr. St. Martin: The Honourable Senator Petten?
Senator Petten: Nay.
Mr. St. Martin: The Honourable Senator Prosper?
Senator Prosper: Yea.
Mr. St. Martin: The Honourable Senator Verner?
Senator Verner: Yea.
Mr. St. Martin: The Honourable Senator Wells?
Senator D. M. Wells: Yea.
Mr. St. Martin: The Honourable Senator White?
Senator White: Nay.
Mr. St. Martin: Yeas, 7; nays, 6; abstentions, 1.
[English]
The Chair: Clause 28 is defeated.
Shall clause 22 carry?
Hon. Senators: Carried.
The Chair: Shall clause 23 carry?
Hon. Senators: Carried.
The Chair: Shall clause 24 carry?
Hon. Senators: Carried.
The Chair: Shall clause 25 carry?
Hon. Senators: Carried.
The Chair: Shall clause 26 carry?
Hon. Senators: Carried.
The Chair: Shall clause 27 carry?
Hon. Senators: Carried.
The Chair: Shall clause 29 carry?
Hon. Senators: Carried.
The Chair: Shall clause 30 carry?
Hon. Senators: Carried.
The Chair: Shall clause 31 carry?
Senator D. M. Wells: I know we are going by bundles of 10. I seek your guidance on reverting to clause 7, for which I requested postponement and received. Now that clause 28 has not carried, I seek guidance on returning to clause 7.
Mr. St. Martin: You can move a motion to revert.
Senator D. M. Wells: I would like to move a motion, colleagues, to revert to clause 7.
Hon. Senators: Agreed.
Senator D. M. Wells: Colleagues, this is consequential to the removal of clause 28.
On clause 7, I move the following amendment:
That Bill C-49 be amended in clause 7, on page 4, by replacing line 2 with the following:
“section 5(1), section 29.1, subsection 41(7),”.
The Chair: Please, yes.
Senator Galvez: I want to let you know that we have received another letter just now.
The Chair: Is it from the minister?
Senator Galvez: It is from Bayside Corporate.
The Chair: It was moved by the Honourable Senator Wells:
That Bill C-49 be amended in clause 7, on page 4, by replacing line 2 with the following:
“section 5(1), section 29.1, subsection 41(7),”.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yea.
Some Hon. Senators: Nay.
The Chair: The “yeas” have it. There is a request for a recorded vote. I will first ask the clerk to name all senators present who are entitled to vote at this time.
[Translation]
Mr. St. Martin: The Honourable Senator Massicotte, the Honourable Senator Arnot, the Honourable Senator Francis, the Honourable Senator Galvez, the Honourable Senator Gold, P.C., the Honourable Senator Martin, the Honourable Senator Manning, the Honourable Senator McCallum, the Honourable Senator Miville-Dechêne, the Honourable Senator Petten, the Honourable Senator Prosper, the Honourable Senator Verner, the Honourable Senator Wells and the Honourable Senator White.
[English]
The Chair: If any member does not wish to vote, they may withdraw from the table now.
The clerk will now call out members’ names, beginning with the chair and followed by the remaining members’ names in alphabetical order. Members should verbally indicate how they wish to vote by saying “yea,” “nay” or “abstain.” The clerk will then announce the results of the vote. The chair will then declare whether the motion is carried or defeated.
Senator D. M. Wells: Because it is a consequential amendment, I would ask the clerk what the effect would be if this does not pass.
The Chair: The question is this: What happens if paragraph 7 is not accepted? What is the consequence? The law clerk advises that what happens is nothing. It is sort of a dysfunction, a lack of coherence, but sometimes we have laws that do not make any sense or where someone forgot some words. It is a lack of coherence but is not substantially disturbing in any sense. We will proceed with the vote.
Senator McCallum: If it’s not consequential, does that mean that the clause remains?
The Chair: It remains.
Senator McCallum: Why are we even doing it?
The Chair: We are doing it because it cleans it up. It is like an error if you do not do it. Agreed, Senator Wells?
Senator D. M. Wells: Okay.
The Chair: To go back to where we were, it is on clause 7. The question is this: Shall clause 7, as amended, carry?
[Translation]
Mr. St. Martin: The Honourable Senator Massicotte?
Senator Massicotte: Nay.
Mr. St. Martin: The Honourable Senator Arnot?
Senator Arnot: Nay.
Mr. St. Martin: The Honourable Senator Francis?
Senator Francis: Yea.
Mr. St. Martin: The Honourable Senator Galvez?
Senator Galvez: Abstain.
Mr. St. Martin: The Honourable Senator Gold, P.C.?
Senator Gold: Nay.
Mr. St. Martin: The Honourable Senator Martin?
Senator Martin: Yea.
Mr. St. Martin: The Honourable Senator Manning?
Senator Manning: Yea.
Mr. St. Martin: The Honourable Senator McCallum?
Senator McCallum: Yea.
Mr. St. Martin: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Nay.
Mr. St. Martin: The Honourable Senator Petten?
Senator Petten: Nay.
Mr. St. Martin: The Honourable Senator Prosper?
Senator Prosper: Yea.
Mr. St. Martin: The Honourable Senator Verner?
Senator Verner: Yea.
Mr. St. Martin: The Honourable Senator Wells?
Senator D. M. Wells: Yea.
Mr. St. Martin: The Honourable Senator White?
Senator White: Nay.
Mr. St. Martin: Yeas, 7; nays, 6; abstentions, 1.
[English]
The Chair: Clause 7 carries. Shall clause 31 carry?
Hon. Senators: Carried.
The Chair: Shall clause 32 carry?
Hon. Senators: Carried.
The Chair: Shall clause 33 carry?
Hon. Senators: Carried.
The Chair: Shall clauses 33 to 43 carry?
Hon. Senators: Carried.
The Chair: Shall clauses 44 to 54 carry?
Hon. Senators: Carried.
The Chair: Shall clauses 55 to 65 carry?
Hon. Senators: Carried.
[Translation]
The Chair: Shall clauses 66 to 76 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clauses 77 to 88 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clauses 89 to 99 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clauses 100 to 110 carry?
Some Hon. Senators: Agreed.
The Chair: Shall clauses 111 to 121 carry?
[English]
Senator Gold: If we have finished Part 1, I would like to raise a point of order, please.
The Chair: Are we finished Part 1?
Mr. St. Martin: You may raise a point of order.
The Chair: You are entitled to do so at any time.
Senator Galvez: For which clause?
The Chair: It is a point of order.
Senator Gold: The last clause in Part 1 is clause 106.
I’m sorry. I meant to intervene before we approved that.
The Chair: It pertains to clause 110. That’s right.
Senator Gold: With the indulgence of the chair, because of the groupings of 10, I was slow to move.
The Chair: It is a point of order.
Senator Gold: I would like to move that the committee reconsider its decision on clauses 28 and 7, and I ask that those decisions be rescinded.
Senator D. M. Wells: The clause has been carried and agreed to by the committee, and once that happens, it is final. There is no reverting back.
Senator Gold: It is my understanding, chair, that I’m entitled to ask. It has been done in the past. The committee can decide to revisit a clause notwithstanding that it has been passed and can decide, if it chooses to for reasons that I’m happy to elaborate on, that we reconsider the decisions that were taken to delete clause 28 and amend clause 7.
The Chair: The committee has the right to go back and vote on a matter as a matter of practice, and I would suggest we do so.
Senator Tannas: So if the result changes, can somebody else then ask to revisit it? How many times is that allowed to occur under the rules?
The Chair: There is no definite max.
Senator D. M. Wells: If that is the case, then it may be that I would like to reconsider and have debates on all clauses. This is highly unusual, and I understand why Senator Gold is doing it. So if that’s the case, I would like to go back to clause 1.
The Chair: Again, it’s the right of the committee to so decide, but we would first deal with the request from Senator Gold.
Senator Gold: Colleagues, we have heard the discussions around this issue. I’m not going to relitigate this, but I have a concern — and only a vote will determine whether I’m wrong — that the decision might have been taken without full appreciation of its consequences and the risk to the provinces of Newfoundland and Labrador and Nova Scotia, and indeed the environment, were this bill to be amended and thrust back into three legislative processes, the results of which are very uncertain.
What hasn’t been discussed fully or around this table is the desires of not only the provinces of Newfoundland and Labrador and Nova Scotia but other stakeholders to see our bill passed without amendment and with dispatch. What may not be known to all members of the committee are the constraints on the legislative process, not only here but in Nova Scotia and Newfoundland and Labrador, and the requirement for political consultations between the provinces and the federal government within a relatively short legislative calendar — for example, in Nova Scotia — for this to be dealt with.
The consequences of this amendment, however well intentioned to benefit existing petroleum licence holders, would put in serious jeopardy this bill, which is the fruit of more than a decade of collaborative work between provinces of different political parties and the federal government in a minority government. And we in the Senate, with the responsibility to represent all regional interests, have an obligation to consider seriously the consequences of this decision. For that reason, in the belief that there might have been a possible misreading of the gravity of the risks, I humbly and respectfully ask that we reconsider the decisions on section 28 and the consequential amendment to section 7. Thank you, chair.
Senator Petten: Colleagues, I want to say that both provinces, Nova Scotia and Newfoundland and Labrador, were at the table with the federal government drafting these initial details we find in the bill on Bill C-49. It is not often that we see Liberal federal and provincial governments and a Conservative provincial government agreeing on something so strongly. It also means that any amendments that are proposed will have to be run by both provinces. Any amendments to the Nova Scotia section of the bill must be included in the Newfoundland and Labrador section so as not to cause imbalance. I’ll let the officials talk about that.
In Newfoundland and Labrador, while their focus has been mostly onshore wind at the moment, the province doesn’t want to miss any offshore opportunity by not being ready when investors come knocking at the door. We know the situation is more dire in Nova Scotia, where they have one of the dirtiest electricity grids in the country due to their reliance on coal. Nova Scotia needs this bill to achieve their own climate goals and take the country as a whole a step in the right direction. To this end, they are planning to launch their call for bids in 2025 and offer leases for five gigawatts of offshore wind energy by 2030.
The ambitious and vital deadline would be jeopardized if we send this bill back to the volatile House of Commons with any amendments. Bill C-49 is a critical step in Canada’s efforts to combat climate change and capitalize on growing offshore wind energy. Countries like the U.S., the U.K., Norway and Australia are already currently implementing similar laws.
Offshore wind offers significant economic potential, with a market value of $1 trillion by 2040. Canada, particularly on the East Coast, is well positioned to lead in that sector. Given its vast coastline and the fact that we have such strong winds, the offshore energy regulators and the skilled labour force we do, this is a momentum that’s growing, especially with the G7 commitment to increase offshore wind capacity. Supporting this legislation will enable Nova Scotia and Newfoundland and Labrador to meet those ambitious energy targets, attract investment and support the transition to a net-zero economy. I would like you to keep that in consideration. Thank you.
Senator D. M. Wells: On Senator Gold’s point — I’m trying to remember the words he used — that it will throw three legislatures into havoc, of course Newfoundland and Labrador haven’t tabled their legislation yet. The federal legislation has not passed yet. Regarding the Nova Scotia legislation, as mentioned earlier, they seem to have jumped the gun by tabling mirror legislation, and they don’t know what’s in the mirror. That’s not on us, Senator Gold. That’s not on this committee, the Senate or the Parliament of Canada. That they did that is unfortunate for them, but again, they can make amendments on the floor. They can do that at second or third reading. That’s why legislative debates have staged readings and committees — so they can make changes on the fly, as we are doing here.
Senator Arnot: My understanding is that the Government of Newfoundland and Labrador has endorsed this legislation very strongly. It is the executive branch of government, of course, but they speak for the legislative. I’m worried about the consequences of the Senate in effect killing this bill at this stage and not recognizing that the elected members of the legislatures in Nova Scotia and Newfoundland and Labrador have spoken to this. I understand that the Government of Nova Scotia has strongly endorsed this.
One of my big concerns from a pragmatic point of view is that there has been a lot of work done on this bill. It has serious potential to affect the economies of Nova Scotia and Newfoundland and Labrador in the future. There will be consequences if this amendment occurs: This bill will likely die and not see the light of day. I believe that is very serious, considering we are looking to transition to a green economy.
We have heard evidence from witnesses that other jurisdictions are moving ahead much faster than this. This would throw everything backwards for a considerable period of time, and it seems to me time is of the essence. There is a reality with the current minority government that we must recognize.
As I understand it, any amendment would put into serious jeopardy the passing of this act, which would be a mistake for the Senate to endorse given the fact that the Government of Newfoundland and Labrador and the Government of Nova Scotia are so committed to supporting the act in its current form.
Senator McCallum: Should we suspend and have the federal and provincial ministers come in and speak to us about this?
The Chair: It is for them to choose whether they wish to attend. I’m not sure what it would provide.
Senator Gold: Very briefly, the views of the federal minister and provincial governments, through their premiers, have been clearly articulated. I don’t think anything more would be gained by having them come.
Senator Prosper: I understand that amendments were made to this bill in the other place in committee when it was introduced in May 2023. It is just part of the process that we have ample opportunity to do so, to consider a bill and make suggested amendments, as well. That is not to say you are considering this to be a process of any less value or importance, but deliberations and discussions here must carry due weight.
With respect to the provincial governments and their approach, I have some proposed amendments with respect to the approach that was taken in Nova Scotia. I understand the timeliness that people are putting forward with respect to this bill, but there are serious considerations that are warranted. Thanks.
Senator D. M. Wells: I want to address a few things that Senator Arnot said. If we revisit clause 28 and put it back in, or if it stays removed as this committee has decided, it is not going to kill the bill. The bill is still there and the objectives of the bill — certainly what we were told in Senator Petten’s second reading speech about the creation of a regulatory regime for wind energy — stand full and strong and are unchanged. When Senator Petten is advocating for Nova Scotia’s interests in wind energy, I’m supportive of that. We recognize that Nova Scotia is moving away from oil and gas. They have no exploration, development or production of petroleum in their offshore area; Newfoundland and Labrador does. I’m extremely happy for Nova Scotia, but this isn’t that kind of discussion.
The removal of clause 28 does nothing to alter Nova Scotia’s ability to regulate or prosecute wind energy in their offshore area, nor does it for Newfoundland and Labrador. As Senator Prosper said, this is part of the process. Just because the House of Commons sends over a bill, are we supposed to lie back and say, “That is the bill and that’s great”?
I referenced Premier Furey’s letter. All he talked about in his letter was renewables. I’m 100% supportive of renewables. That’s not going to change. My only concern — as I stated it in my second reading speech and earlier statements in this committee, not just today but before — is that this is a back door attempt by the federal government to damage the Newfoundland and Labrador offshore industry by putting into question the investments of the companies that operate there. No company will come and invest in Newfoundland’s offshore petroleum industry if they know that at any time a minister can pull that licence, unilaterally and possibly without compensation. No company will come to Newfoundland and Labrador. I’m quite surprised that my Newfoundland and Labrador colleagues would be supportive of having a regime in place that sets up that circumstance.
Senator Galvez: I don’t necessarily want to explain why I abstained, but there were two issues that are still not clear to. I’m very pragmatic when I vote. I know this is highly politicized and we are voting more with our hearts than our heads, but I need clarity on two things.
We have been talking a lot about the regional assessments and why they were not included or identified in this bill. This comes to the issue with Senator Wells’s amendment, which is that clause 28 says we are going to let the minister decide yes or no, but it doesn’t say when or how. What we heard is that it is only going to be “no” if there is a biodiversity problem with a very heavy impact on the environment, but that is not in the bill; it is in the letters we have received.
First, I would like to have assurance that the reason the minister can say no to a project is because of a heavy impact on the environment. I say that because if I do my own regional assessment and compare all the sources of petroleum in Canada and agree with Senator Wells that this is a better source of petroleum. If we are going to continue building, buying and increasing pipelines, for sure I’m going to say that this petroleum is better and that the environmental impact is smaller.
Ms. Tobin: I have a few things. First, there would be no prohibition anywhere in the offshore willy-nilly, wherever you want to prohibit an activity in the accord areas. In the amendments that are there, it has to be of the Governor-in-Council and that either an area has been established under the Oceans Act or under Parks Canada or is in the process of becoming established. It is not anywhere writ large across the offshore. It is in these particular, specific areas when the Governor-in-Council confirms that is the case.
Senator Galvez: Can you please tell me the page in the bill?
Ms. Tobin: Maybe that’s part of it: It’s not easy to decipher. It is legislation, after all. But it is there, “56.1 Subject to section 7, the Governor in Council may . . .”
Senator Galvez: Which page is this on?
Ms. Tobin: Page 11.
Senator Galvez: Okay.
Ms. Tobin: Subject to section 7, the Governor in Council may, for the purpose of the protection of the environment, make regulations prohibiting, in respect of any portion of the offshore area that is specified in those regulations and that is located in an area that is or, in the opinion of the Governor in Council, may be identified under an Act of Parliament or of the Legislature of the Province as an area for environmental or wildlife conservation or protection . . .
So it is not anywhere in the offshore. It is in these specific areas. That’s the precursor; that’s the first requirement.
I also wanted to note that, if you were to continue reading along, the regulation could prohibit:
(a) the commencement or continuation of
(i) any work or activity relating to the exploration or drilling for the production, conservation, processing or transportation of petroleum, or
(ii) an offshore renewable energy project; or
(b) the issuance of interests.
That is the prohibition, what it could cover if both governments agree to that and if that first requirement were met with the confirmation there was either an established conservation area or one in the process of becoming established.
Senator D. M. Wells: Excuse me, chair. Is there a motion on the floor?
The Chair: No, I think we are having a discussion and then will proceed to a vote.
Senator D. M. Wells: On clause 7?
The Chair: On a point of order.
Senator Gold: What is on the floor, I believe, is my request to have the committee reconsider its decisions on the deletion of clause 28 and a consequential amendment to clause 7.
The Chair: I support that, given the regulation is in place to do so, and we are having a discussion to allow us to make the right decision.
Senator D. M. Wells: I just wanted to know where we were, if we’re debating the point or order or the motion —
The Chair: Have we completed the comments you wanted to add?
Senator Arnot: I have a question. Senator Galvez had two points. We heard an answer to the first point but not the second. I would like to know the answer to the second one because the answer to the first one was very helpful to me in understanding this process.
Could you ask the second question again? It might be helpful and enlightening.
Ms. Tobin: I need the question repeated. Was it around regional assessments, senator?
Senator Galvez: Yes. There seems to be some confusion about the regional assessments being done by the group from whom we heard yesterday. I think that’s what Senator Massicotte was referring to; it was confusing and strong. It seems they are doing something very interesting and important, but it is not being considered in this version of the bill. Can you tell us more? I asked for reassurance, and we got some reassurance from the letter from Minister Wilkinson. If you could elaborate more, it may be helpful for my colleagues.
Ms. Tobin: We were in attendance yesterday, so we did hear some of that testimony. Regional assessments are a planning tool. It’s not one thing that only has to be done one way. They can be scoped; they can be designed differently. Under the Impact Assessment Act, or IAA, they have a specific scope which is actually quite broad in nature because it applies across the country. It is defined there, but it is a planning tool to be utilized in their decision making.
Similar to my comment about clause 28, the Accord Acts have not been changed for a long time, save for a few targeted changes. If you don’t have a lot of opportunity, when that opportunity comes around, you ask yourself, now 20 or 30 years later, are there things, tools, new language or concepts that we want captured in the Accord Acts? This was one of them, but it was not meant to be identical to what is in the IAA.
When an IAA applies in the accord areas, and there are instances where it will, the requirements under their IAA as they relate to regional assessments will apply.
For us, under the Accord Acts, we said, okay, it doesn’t exist there now. It doesn’t need to be identical to the IAA because the scope is different. It is not across the country. Plus, when there is an IAA being warranted there, that is what will apply.
However, we still recognized the utility of having a regional assessment that can be used by the regulator in the accord areas when an IAA doesn’t apply.
Senator Manning: Just for clarification from our witnesses, can a minister remove a licence unilaterally without compensation? Can a federal minister remove a licence unilaterally?
Ms. Tobin: No. Absolutely not.
Senator Manning: Senator Wells, is that what you just said? Did I take you wrong?
Senator D. M. Wells: The minister needs the agreement of the provincial minister to do it. Right now, there is no provision for removal by the ministers because we have a regulatory regime that is responsible. That regime allows companies to have certainty that if they are approved for an activity, whether it’s seismic or drilling or production, they will not lose that approval sometime in the future with the condition of compensation up in the air because that’s not the government —
Senator Manning: A federal minister cannot do that unilaterally unless there’s consultation with the province?
Senator D. M. Wells: They need the agreement of the province.
Ms. Tobin: We can look at page 12 of the bill, at the bottom, “Power to cancel”:
The Provincial Minister and the Federal Minister may, by order, jointly cancel the interest in respect of all or any portion of the offshore area that is subject to the interest . . .
That is the area that’s been identified for the Governor-in-Council, or GIC.
Under the Canada Petroleum Resources Act, or CPRA, we have had this situation in the Pacific where historical permits issued in the 1960s have been sitting there with a policy moratorium in place and no ability to do anything with those interests because the law didn’t have the authority to do so. Unless they voluntarily relinquish them, which is what happened in the Pacific, there was no tool. So that CPRA legislation applies there, and it was amended under Bill C-55 in 2016 or 2017 to provide for that new authority.
Here we are now on the Accord Acts. There is no instance of this in the Newfoundland and Labrador offshore. In the Nova Scotia offshore, there are historical permits that were issued back in the late 1960s or early 1970s which overlap. They are found in areas where there is interest in conserving, given the unique and precious ecology that exists there.
There is no ability in the Accord Acts today to deal with them. This new tool would provide that, but it would provide it jointly. There would be no ability for a unilateral piece of legislation to come into the accord areas and prohibit or cancel an interest that has been issued under the Accord Acts or in the accord areas. That was previous to the Accord Acts or pre-1985.
The Chair: Thank you very much. I think you have answered the question. We will proceed to vote on the point or order to revert back to clause 28.
Senator McCallum: First, I have a question. I want to go back to a question raised about prohibitions in clause 28. It says “. . . the Governor in Council may . . .” and that they “. . . may be identified . . .” There are two instances of “may,” so it is discretionary. That has been a problem in other clauses. Then it says “. . . may be identified under an Act of Parliament or . . .” However, when you look at the “Power to cancel,” they “. . . may, by order, jointly cancel the interest . . .” Then there is another reference, “. . . may be identified under an Act of Parliament . . .”
When you look at (a), (b) and (c), only the federal minister is noted there. What does that mean? Do they have the power unilaterally then?
Ms. Tobin: I think I understand the nature of how it is confusing. It is confusing. I will ask my colleague to speak to the wording choice around “may,” because that’s a drafting question. First, I would say that when you see instances of only the federal minister with this power, it is in the federal version. If you were to pick up the provincial version of this Accord Act, it would mention the provincial minister. They are to be read together, but there is no unilateral provision within this clause, full stop.
[Translation]
Jean-François Roman, Counsel, Legal Services, Natural Resources Canada: The reference to the possibility of the area being declared protected essentially enabled the Governor in Council to push forward two sets of regulations in parallel, including regulations that would be proposed by Fisheries and Oceans Canada to create a marine protected area. The area has not yet been created, but there is a proposal before the Governor in Council whose intent is to create a marine protected area. Alongside this proposal, there may also be a proposal for regulations in accordance with the accord act proposing to create a prohibition for the same area that is proposed in the Fisheries and Oceans Canada regulations to create the area. This is simply to reflect the fact that the area has not yet been created, but is about to be created; this is why clause 56.1 uses “may.”
The Chair: Thank you very much.
[English]
Senator McCallum: If it is created, will you go back and say, “It shall be,” or how will that work? I ask because they may still say that they have that discretionary power and are still not going to protect this.
The Chair: The bottom line is that they are not proposing any amendment to the bill. The bill sits as is. It remains “shall.”
Senator McCallum: It is “may.” It is not “shall.”
The Chair: We have had enough discussion on this issue. I suggest that we continue with a vote on the point of order to revert to clause 28.
Senator D. M. Wells: Thank you. It is important. If Senator Gold does not succeed with his point of order, how many times are we going to do this? Can we make an amendment to the point of order saying that this will be the final time we address clause 28 until we get into third reading? Senator Gold, you have a lot of authority in the chamber and can make almost any changes you wish. If it goes back to the House, they can ignore our changes, although they did not make this promise in their campaign. There are other avenues besides the way in which you are doing it now, as you already know.
The Chair: Let’s proceed to the vote.
Mr. St. Martin: The Honourable Senator Massicotte?
Senator Massicotte: Nay.
Senator Arnot: Just a moment. I have a point of clarification. On this vote, Senator Gold is asking that the withdrawal of clause 28 be reconsidered. If I want to support that, I vote “yes.”
The Chair: That is how the question is worded.
Mr. St. Martin: “Yes” would be to revert to clause 28.
The Chair: For clarity, read what we are voting on, if you do not mind.
Mr. St. Martin: The vote is on the point of order to revert to clause 28, to vote on clause 28 again.
The Chair: Okay.
Senator Gold: I have asked that we revert and vote again on the deletion of clause 28 and on the amendments to clause 7. It is not clear to me or to Senator Arnot whether we are voting on my request to revert.
The Chair: Yes. It is strictly on the reversion we’re going to vote on. If we get there, then we’ll vote on clause 28.
Senator Gold: Thank you for clarifying.
Senator D. M. Wells: There is a lot of confusion. There are new things happening. There is new information. There was apparently a briefing for some senators by ministers to which we were not privy. We are receiving letters after the meeting has started that may or may not be germane. Colleagues, this is not the way this should be done. I think we should take a pause, figure out exactly what we’re doing and have all of the information in front of us. This is important. You have heard it from me and from all of us. This is important.
With the new information coming in, with confusion about much of the information and with reverting to a decision that has already been made, I would like to move the adjournment of the committee to get our ducks in order and reconvene at the next opportunity.
The Chair: I think we should proceed with a vote on the motion.
Senator D. M. Wells: I have the right to move adjournment.
The Chair: Then we will vote on the adjournment.
Senator Petten: May I respond to the comment by Senator Wells?
Senator D. M. Wells: It’s not debatable.
The Chair: We have to deal with it first. We have to vote on adjournment — yes or no.
Mr. St. Martin: Vote on adjournment.
The Chair: To share the advice we are getting, it is that the vote on adjournment has precedence and is the first order of priority, before Senator Gold’s request as a point of order. I suggest we proceed with the vote on the adjournment to start. Then we will go to the vote on the request, the point of order. If that is accepted, we then vote on removing section 28. That is the order of events.
I tried to make our life a little bit simpler and shorten it. Senator Prosper left the room. I tried to lock the door, but that did not seem to work. We were hurrying, trying to make it happen before you returned, but, sorry, you were too quick.
Mr. St. Martin: Vote on adjournment.
[Translation]
The Honourable Senator Massicotte?
Senator Massicotte: Nay.
Mr. St. Martin: The Honourable Senator Arnot?
Senator Arnot: Nay.
Mr. St. Martin: The Honourable Senator Francis?
Senator Francis: Yea.
Mr. St. Martin: The Honourable Senator Galvez?
Senator Galvez: Nay.
Mr. St. Martin: The Honourable Senator Gold, P.C.?
Senator Gold: Nay.
Mr. St. Martin: The Honourable Senator Martin?
Senator Martin: Yea.
Mr. St. Martin: The Honourable Senator Manning?
Senator Manning: Yea.
Mr. St. Martin: The Honourable Senator McCallum?
Senator McCallum: Yea.
Mr. St. Martin: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Nay.
Mr. St. Martin: The Honourable Senator Petten?
Senator Petten: Nay.
Mr. St. Martin: The Honourable Senator Prosper?
Senator Prosper: Yea.
Mr. St. Martin: The Honourable Senator Verner?
Senator Verner: Yea.
Mr. St. Martin: The Honourable Senator D. M. Wells?
Senator D. M. Wells: Yea.
Mr. St. Martin: The Honourable Senator White?
Senator White: Nay.
Mr. St. Martin: Yeas, 7; nays, 7.
[English]
The Chair: The motion is defeated.
Let us proceed to the vote on the point of order to revert back to section 28 and give us the authority to do so.
Mr. St. Martin: Point of order to revert back to clause 28.
The Chair: Do we all understand what we are voting on? Is it clear?
[Translation]
Mr. St. Martin: The Honourable Senator Massicotte?
The Chair: Yea.
Mr. St. Martin: The Honourable Senator Arnot?
Senator Arnot: Yea.
Mr. St. Martin: The Honourable Senator Francis?
Senator Francis: Nay.
Mr. St. Martin: The Honourable Senator Galvez?
Senator Galvez: Yea.
Mr. St. Martin: The Honourable Senator Gold, P.C.?
Senator Gold: Yea.
Mr. St. Martin: The Honourable Senator Martin?
Senator Martin: Nay.
Mr. St. Martin: The Honourable Senator Manning?
Senator Manning: Nay.
Mr. St. Martin: The Honourable Senator McCallum?
Senator McCallum: Nay.
Mr. St. Martin: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yea.
Mr. St. Martin: The Honourable Senator Petten?
Senator Petten: Yea.
Mr. St. Martin: The Honourable Senator Prosper?
Senator Prosper: Nay.
Mr. St. Martin: The Honourable Senator Verner?
Senator Verner: Nay.
Mr. St. Martin: The Honourable Senator D. M. Wells?
Senator D. M. Wells: Nay.
Mr. St. Martin: The Honourable Senator White?
Senator White: Yea.
Mr. St. Martin: Yeas, 7; nays, 7.
[English]
The Chair: Which means that we have voted against reverting back.
Shall clauses 100 to 110 carry? The answer is yes.
Shall clauses 111 to 121 carry?
Senator Prosper: I move:
That Bill C-49 be amended in clause 111, on page 86,
(a) by replacing line 1 with the following:
“111 (1) The heading before section 6 and subsection 6(1) of the Act are replaced by the”;
(b) by adding the following after line 2:
“Conditions Precedent for Certain Regulations, Decisions, etc.”;
(c) by adding the following after line 12:
“(2) The Act is amended by adding the following after subsection 6(2):
6 (3) The Federal Minister or the Regulator, as the case may be, shall consult with any council, government or other entity authorized to act on behalf of an affected Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982 before
(a) a regulation is made under section 2.1, section 59.1 or 98.2, subsection 98.3(2), section 128 or 153, subsection 188.25(1), or section 210.126;
(b) a decision is made under subsection 38.1(2);
(c) a directive is issued under section 41;
(d) the implementation of a fundamental decision is either made under section 34 or a fundamental decision is set aside or that setting aside is overruled under section 35;
(e) a licence is issued under section 91;
(f) a call for bids is made under paragraph 93(1)(a); or
(g) an authorization is issued under section 142.011.”.
Colleagues, I know we are running out of time here, but this is the main amendment that I am trying to put forward, which centres on consultation.
We heard extensive testimony in committee from Chief Sidney Peters and lawyer Jessica Ginsburg for the Mi’kmaq Rights Initiative, both of whom clearly discussed a lack of consultation during the drafting of this bill despite terms of reference that were established for consulting back in 2010.
They also discussed how Bill C-49 as currently written fails to allow for sufficient consultation throughout the strategic planning, licensing and permitting process. This is exacerbated by the fact that many decisions are only made publicly available after the fact.
Chief Peters said:
The Crown has a duty to consult on decisions about our resources when such decisions may have potentially serious impacts on Aboriginal right and title. Bill C-49 is structured as a long series of strategic planning decisions, culminating in authorizations to carry out work on an offshore renewable energy project. The bill provides no consultation, or inadequate consultation, during the regulation, directives, principles, offshore renewable energy recommendations, calls for bids, submerged land licence and authorizations.
We would like to see the following changes made. The consultation process should cover off all the key decision points within the strategic planning process, and the bill should be structured to support the fulfillment of these consultation obligations prior to final decisions being made. . . .
Ms. Ginsburg later invoked the Haida decision when she explained the importance of consulting on various levels, which she called the decision-making chain. She provides:
. . . decisions. Authorizations — if you picture it as a pyramid — are the bottom of the pyramid. This does not in any way to minimize the authorizations, but the decision-making chain begins above them.
Certain decisions are constrained or are already made by the time you reach the authorization stage. In our written submissions, there is a little diagram. You have regulations, directives, principles, offshore renewable energy recommendations, call for bids, submerged lands licenses and then the authorization. It is a very long list.
One of the seminal duty-to-consult cases is Haida. That didn’t involve the permitting stage, which would be more equivalent to the authorizations. That involved the licensing stage.
In that case, one of the things it stood for was the importance of consulting higher up, because some of those constraining decisions had already been made. Even though the Impact Assessment Act may get triggered at the authorization stage, it doesn’t eliminate the need to consult through other means higher up in the decision-making chain.
Since the bill already contains a lengthy list of preconditions where regulations and decision points cannot be made without provincial ministerial approval, namely under clause 111, proposed subsection 6(1), this amendment seeks to add further preconditions to a decision by requiring consultations with Indigenous peoples.
I had a chance to discuss with Ms. Ginsburg what decision points she felt needed to be included in this list of preconditions to ensure there was adequate consultation at key points throughout the process which satisfy requirements and thresholds under the Haida decision.
These are the decision points included in the proposed amendment you have before you.
Colleagues, I read the letter from Minister Wilkinson that was sent out to committee members at 1:51 p.m., the night before our 9 a.m. committee meeting. While it acknowledged the “. . . frustration as expressed by Chief Peters and Senators . . . .” it goes on to essentially promise to be better in the future and highlights the importance of current investment opportunity.
He does not in any way address the failure of this government and the provincial government to follow the Made-in-Nova Scotia Process to avoid exactly this situation from occurring.
He also says that Indigenous groups “. . . are heavily engaged in this legislation’s sister process . . . .” Yet we heard from Chief Peters and Ms. Ginsburg that they have not been given adequate time to participate and that the hearings have been scheduled at the same time as our hearings, provincially.
Again, we hear one thing from the chiefs and another thing from government. I am inclined to believe the former.
This brings to mind another quote from Chief Peters, who said:
Again, to be honest with you, we have run into this many times with governments in moving things forward, saying, “Okay, let’s let it go, and next time we will take a look at it and we’ll approve it.”
Ms. Ginsburg’s frustration was palpable when she said:
It is an ironic situation that we find ourselves in where a lack of consultation and even a lack of communication, even at a relationship level, where there have been meetings for years on the subject of energy. Yet it hasn’t even been raised in those meetings. So the fact that there is a lack of consultation leading up to a problem of consultation on the bill, and we are in the position of being the “delayers.” I’m using air quotes because that is not our intention, of course. But to then say, “And it will be remedied on a good-faith solution,” the whole thing kind of leaves a bad taste in my mouth, if I could put it that way.
So do I find comfort in the minister’s letter? No, I don’t. I told him that directly when I met with him yesterday, along with some other Indigenous senators on this committee.
Do I take comfort in the assurances of the minister, who promises to act on our observations and uphold the honour of the Crown when there are multiple indications that this may not even get to the same government in power six months to a year from now? No, I do not.
I stand with Chief Peters, the assembly and the Kwilmu’kw Maw-klusuaqn Negotiation Office, or KMKNO, when I say that I would much rather it be explicitly included in legislation.
Finally, we read in the minister’s letter — if you had an opportunity to read it before this meeting — that there are several steps that require consultation. Let me address these individually.
The first is regional assessments. While these do have active participation by Indigenous groups, the bill does not require that a regional assessment be done before a call for bids is issued. This is the crux of a few amendments that I will later bring forward.
Second is the wind energy area identification process, which will be led by government and will occur following and take into consideration the findings of the regional assessment. Again, the legislation does not explicitly provide for these having to occur before a call for bids is issued. We do not just want the regional assessments to be taken into consideration. We want them to carry weight and be followed.
Third is the call for information processes to seek input from stakeholders and Indigenous groups on potential parcels to be recommended, terms and conditions of licences and other matters. The bill very clearly lays out a process that allows for terms and conditions to result on recommendations between the regulator and the ministers, as well as have additional terms and conditions appended based on agreement between the regulator and licence holder. These are published after the fact and do not follow public input. These are part of my proposed amendments as well.
Further, there are no such calls for information processes set out in the bill.
The Chair: Senator Prosper, we must end the meeting in 30 seconds. We are refused an extension of time. We will have to continue at the next sitting we have for clause by clause. Unfortunately, that approval was not acceptable. We will therefore adjourn at this time and proceed with you as a witness first thing at our next meeting. Thank you to all of you for being with us today.
(The committee adjourned.)