Moved:

That, in relation to 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, the Senate:

(a)agree to the amendments made by the House of Commons to Senate amendments, including amendments made in consequence of Senate amendments; and

(b)do not insist on its amendments to which the House of Commons has disagreed; and

That a message be sent to the House of Commons to acquaint that house accordingly.

He said: Honourable senators, I am pleased to speak today to the message that we have received from the House of Commons on Bill C-69. The government has accepted 62 amendments outright and another 37 with some modification for a total of 99. This is historic. It is the greatest number of Senate amendments accepted by the House of Commons since this information was first recorded starting in the 1940s. This is clear evidence of a thriving bicameral Parliament and an increasingly independent Senate doing its job.

I want to acknowledge the exceptional work of so many senators in reviewing, debating and deliberating on this bill. I express my appreciation of Senator Galvez’s tireless work as the chair of the Energy and Environment Committee. It was not an easy job.

So many senators and Senate administration staff members have also done remarkable work in supporting this effort. Thanks to each of them. Thanks, as well, to the remarkable work of so many public servants and ministerial office staff members.

And the critic.

I mentioned all kinds of senators in this chamber.

This message is the culmination of a long and arduous but credible policy-making process. It started with the realization that the Canadian Environmental Assessment Act, which I will refer to in the feature as CEAA 2012, was not working. It had failed to get critical projects built. It did not have the trust of Indigenous peoples nor the public at large and, as a result, had been mired in litigation that had so unsettled investors it had to be fixed. The government did what a responsible government facing this kind of challenge would do: They undertook a public consultation process of over two years to understand what stakeholders and the Canadian public in general would expect of project assessment processes.

From that, they identified fundamental principles to define the bill that would replace CEAA 2012. The impact assessment process would have to protect the environment, build public trust, provide certainty for investors, and respect Indigenous rights and interests.

A guiding principle to doing that properly was the understanding that we cannot simply elevate one set of interests arbitrarily over other sets of interests. The key to success in this process is to find a balance and an alignment amongst the competing interests inherent in resource development. Those principles became the lens through which the government evaluated our amendments.

Bill C-69, as we received it over a year ago, was the product of that rigorous process supplemented by the review undertaken in the House of Commons. It was, at that point, already a good bill that went a long way to addressing the weaknesses of CEAA 2012.

I applaud the efforts of Minister McKenna to undertake and pursue this challenge. It, too, was not an easy job. I also want to acknowledge the work of Ministers Sohi and Garneau.

The 99 amendments accepted in the message enhance this bill significantly and substantively by collectively addressing an array of key issues raised by stakeholders throughout our deliberations in the Senate. These include ministerial discretion, certainty, litigation risk, timeliness, public participation, the role of life cycle regulators, Indigenous rights, provincial jurisdiction and protection of navigable waters. A few key examples of accepted amendments relating to each of these categories will help illustrate the significance and the depth of the message.

First is ministerial discretion. Amendments reducing ministerial discretion will depoliticize the assessment process and provide greater certainty while maintaining political accountability for final decisions. The government has accepted many amendments shifting powers from the Minister of the Environment to the impact assessment agency in order to, among other things, manage time limits throughout the assessment process, determine when sufficient information has been received and appoint the chairs and members to review panels.

The agency’s independence is reinforced by an amendment limiting the minister’s ability to direct the activities of the agency. The minister will now be required to work directly with the Minister of Natural Resources in referring to cabinet any decisions on projects that involve the Canadian Energy Regulator, the CER; the Canadian Nuclear Safety Commission, the CNSC; or the Offshore Petroleum Boards of Newfoundland and Labrador and Nova Scotia.

They will also have to collaborate in naming people to the rosters from which review panel members will be chosen. Finally, for panel reviews, the agency will now make explicit recommendations to assist the minister in establishing project conditions.

An amendment restricting the minister’s power in section 9 to designate projects that otherwise would not be designated was not accepted. That power was introduced, interestingly enough, in CEAA 2012 and provides important flexibility for the minister and, equally important, for proponents to deal with unforeseen circumstances. Experience shows that this power has not been misused. There were 37 requests to designate; only three have been granted, two at the request of proponents and the third at the request of Parks Canada.

Certainty is particularly important for proponents and investors. It is enhanced by a number of amendments. The recognition of the positive economic impacts of projects has been emphasized with amended wording in the purpose section of the bill.

Amended wording clarifies that the agency must set out the scope of factors to be assessed by the end of the early planning phase, early in the process. The agency will be able to tailor assessments so as not to overburden proponents while still allowing the public and Indigenous peoples to raise any matter of concern to them in the assessment and have those concerns heard.

Some amendments reintroduce the concept of significant effects. This specifically promotes environmental protection by emphasizing the significance of environmental effects of projects. It will also help to ensure the applicability of existing jurisprudence thereby increasing certainty for stakeholders.

A number of amendments were rejected because they would have made optional the assessment of factors like Indigenous rights, gender-based analysis and even comments from the public.

One amendment requiring the assessment of global emissions was rejected because, by definition, that would mean assessing downstream emissions. The government has been very clear in its commitment not to require the assessment of downstream emissions.

Third is litigation risk. An amendment to introduce a privative clause into the Impact Assessment Agency section of the bill was not accepted. There already is a privative clause in Bill C-69 for the CER. That is consistent with the current practice in CEAA 2012 which has a privative clause for the NEB, which will be replaced by the CER, but not for the current Environmental Assessment Agency. The Department of Justice argues that such a privative clause applies effectively to quasi-judicial tribunals, like the CER and the NEB, because the courts are more inclined to defer to quasi-judicial tribunals than to the work of review bodies, like the impact assessment agency.

A privative clause would therefore not have the effect of reducing the likelihood of litigation in this case. However, the amendments to scoping of factors help minimize litigation risks by making it clear early on what must be considered, to what extent and by whom. The likelihood of court challenges is also reduced by measures throughout the bill designed to build public trust including better consultation with the public and Indigenous peoples and, crucially, consideration of Indigenous rights at every stage of the process.

Timeliness: Several amendments were accepted to make the process more timely and efficient while retaining flexibility to address unexpected circumstances. Amendments have tightened timelines to ensure that both the review panel’s report and the agency’s recommendation to the minister must be finished within the 300- or 600-day limits. In addition, amendments provide that review panels will be appointed earlier in the process so that there is no delay between when the proponent’s impact assessment is finished and when the actual impact assessment phase begins.

The agency will now be required to publish reasons for all extensions to legislated timelines, including those decisions made by cabinet. The agency will have the power in addition to set time limits for regional and strategic assessment in consultation with relevant jurisdictions.

Amendments to set maximum timelines were not accepted. A lack of flexibility to extend a decision could result in an arbitrary rejection of a project. The bill’s significantly shorter legislated timelines in every category of review and supporting regulations, in addition to the amendments I have just described, will ensure a timely and efficient process without the need for a maximum timeline.

With respect to public participation, the agency’s power to ensure that public participation will be meaningful and appropriate was reinforced in amendments to the early planning process, agency-led assessments, review panel assessments and regional and strategic assessments. These amendments underline that the agency has the power to manage public participation efficiently without detracting from the broad and meaningful public participation critical to restoring public trust.

Amendments to reintroduce the standing test were not accepted. These would have been contrary to the recommendations of the Report of the Expert Panel on the Modernization of the National Energy Board, which explicitly pointed to the standing test as having undermined the public trust since its introduction to the NEB process under CEAA 2012. And the bill already specifies that public engagement must occur within legislative timelines of an impact assessment. Public consultation cannot be a reason for extending time limits.

It is important to note that, in any event, over 60 per cent of the projects reviewed under CEAA 2012 have not been subject to a standing test which has applied only to NEB reviews.

The role of life-cycle regulators including offshore boards: Some amendments in the message will ensure that the expertise of the life-cycle regulators will be reviewed, will be fully integrated and will streamline certain offshore board activities as well. Life-cycle regulators include CER and CNSC, as well as the two offshore petroleum boards.

The minister will be required to consult the heads of life-cycle regulators in preparing terms of reference for assessments that fall under their areas of responsibilities. It will now be possible for members of CER, CNSC and the two offshore boards to chair review panels. Members will still not form majorities on panels. This will ensure that the expertise of the regulators will have a prominent place in the process while balancing panel membership to ensure public trust.

The agency will have to consult with heads of life-cycle regulators and offshore boards in choosing panel members. We heard the concern that offshore exploratory wells should no longer be subjected to well-by-well reviews, as is now required under CEAA 2012. Provisions to allow for exemptions from this requirement are already in the draft regulations. The message includes amendments putting this reassurance also directly into the bill.

A key element of the message is what it does to further recognize Indigenous rights. Concern had been raised that provisions in section 7 prohibited proponents from entering into impact benefit agreements with Indigenous communities. An amendment clarifying that these are not prohibited was accepted. Important amendments requiring the assessment of rights of Indigenous women and consideration of the knowledge of Indigenous women, both moved by Senator McCallum, were also accepted. Amendments that would have made consideration of Indigenous rights optional at key points in the assessment process were rejected.

Role of other jurisdictions: The message includes a number of amendments clarifying respect for provincial jurisdiction in the pursuit of one project, one review. An amendment proposed by Senator Carignan was accepted to affirm in the purpose section that the legislative competencies of provincial and federal governments will be respected. Another amendment clarifies the goal to harmonize impact assessment processes across the country, removing the additional reference to promoting uniformity.

An amendment was accepted to ensure that early planning timelines can be adjusted by 90 days at the request of another jurisdiction.

Sorry senator, but your time has expired. Are you asking for five more minutes?

I’m the sponsor. Do I not have 45 minutes?

Rule 6-3(1) allows 45 minutes for a sponsor at second and third reading, but you’re now speaking to the message. You had 15 minutes.

Could I have another five minutes, please?

Is leave granted, honourable senators?

Thank you very much. It is almost over.

It is now mandatory that when a joint regional assessment is undertaken with another jurisdiction, the committee undertaking the regional assessment will include at least one person recommended by the jurisdiction in question. Amendments that restricted the federal government from taking action in areas that fall under its jurisdiction were rejected, as the federal government has an obligation to act in these areas.

Canadian Navigable Waters Act: Amendments to this act help to ensure certainty and clarity, while maintaining the government’s commitment to enhance protection of Canadian waterways. The message accepts amendments to reduce the administrative burden in proceeding with works that clearly will not affect navigation. Amendments restore the previous emergency provisions, referring to emergencies as events that threaten to cause social disruption or a breakdown in the flow of essential goods and services.

For greater certainty, a clause has been added to the definition section of the bill to affirm that “navigable water” does not mean irrigation channels or drainage ditches.

Amendments that would have weakened the new protections for navigable waters, such as those eliminating consideration of future use, were not accepted because they could inappropriately limit the public’s right of access to waterways in the future.

Honourable senators, in conclusion, Bill C-69 has been built upon a very credible policy process based upon broad public consultation, enhanced by extensive parliamentary review. The Senate has done a remarkable job in our intense year-long deliberations on this bill. The government has listened and responded in a very significant way. I feel very confident in recommending that we accept the government’s message. Thank you.

I move the adjournment in my name.

Senator Plett, I believe Senator Forest wanted to speak. Are you okay if he speaks first before you move the adjournment?

Well, okay.

Not that independent; just a little independent.

In order for us to reflect on Senator’s Forest’s recommendation for our not insisting on amendments, I’ll take the adjournment in my name.

Sleep well.