Impact Assessment Bill—Canadian Energy Regulator Bill—Navigation Protection Act
Nineteenth Report of Committee--Debate Adjourned
May 29, 2019
Moved the adoption of the report.
She said: Honourable senators, I rise today as chair of the Standing Senate Committee on Energy, the Environment and Natural Resources to speak to the report on 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. I presented the report to this chamber yesterday.
I’d like to start by thanking the senators on the committee for their hard work and perseverance throughout our study of the bill and the amendment stage. I also want to thank the Library of Parliament analysts, the clerk and the other committee staff for their diligent work throughout this study.
Senators, the committee studied this bill carefully. It was a monumental task. The bill consists of three parts. First, there is the Impact Assessment Act, which will replace the Canadian Environmental Assessment Act, 2012. Next, there is the Canadian Energy Regulator Act, which will replace the National Energy Board Act. Lastly, there is the Navigation Protection Act, which will now be known as the Canadian Navigable Waters Act.
Bill C-69 modernizes Canada’s impact assessment legislation. The bill has already undergone extensive analysis and study. Before it was introduced in the Senate, two expert panels and two House of Commons committees worked on the bill. After hearing from 84 witnesses representing 47 interest groups, the House of Commons Standing Committee on Environment and Sustainable Development proposed more than 100 amendments.
The bill was referred to our committee on December 12 last year. Since then, we have heard from, by my count, a total of 275 witnesses representing 179 groups. The hearings were conducted in Ottawa and during two weeks of travel, one to the west and one to the east, which took the committee across the country.
During the western leg of the trip, the committee held hearings in Vancouver, Calgary, Fort McMurray, Saskatoon and Winnipeg. During the eastern leg, we were in St. John’s, Halifax, Saint John and Quebec.
In total, the committee heard 108 hours and 18 minutes of testimony. We heard from a wide array of stakeholder groups who were invited to speak to the bill.
Ultimately, 41 per cent of the witnesses represented various industry groups; 8 per cent represented Indigenous groups; 20 per cent represented NGOs; 10 per cent were from various levels of government; 9 per cent were from academia; 4 per cent from the field of law; 3 per cent represented regulators and regulatory bodies; and 5 per cent were independent witnesses. The committee received 121 briefs on the subject of Bill C-69, a number that does not include supplementary documents such as scientific and news articles that were shared with the committee by witnesses.
We heard from the Minister of the Environment and Climate Change, the Minister of Transport and the Minister of Natural Resources on the intent and purpose of the bill. We heard from officials who were present to answer questions during hearings and to advise the committee during clause-by-clause deliberations. It was the committee’s duty to hear, understand, debate and to vote on proposed amendments. Senators, the committee has done its work.
A total of 188 amendments were approved in committee, including many technical amendments and amendments put forward by committee members. An observation was also added to the report. In my speech today, I will be focusing on the main categories of amendments proposed and approved by the committee.
Amendments were passed to provide a clearer, stronger standard for determining a project’s contribution to sustainability. Amendments were made to ensure that public participation does not have the effect of delaying impact assessments, and criteria to guide public participation were introduced.
The new agency must work jointly with life cycle regulators during the early planning phase. Life cycle regulators include the Canadian Energy Regulator, which replaces the National Energy Board as a result of this legislation, the Canada Nuclear Safety Commission, the Canada-Newfoundland and Labrador Newfoundland Offshore Petroleum Board and the Canada-Nova Scotia Offshore Petroleum Board.
One series of amendments seeks to reduce ministerial discretion and make assessments more independent. These amendments give the agency certain powers, including the responsibility to properly manage public participation in the impact assessments conducted by the agency, decision-making power over designated projects and the authority to suspend the time limits in which the agency must make such decisions and conduct impact assessments, and the ability to request additional information from proponents or jurisdictions following a substitution process.
In order to restrict ministerial discretion, the bill was amended to give the president of the impact assessment agency the power to designate enforcement officers. The amendments also give the agency the power to determine the factors related to specific projects, particularly section 22.
Bill C-69 was amended to further clarify the notion of cooperation between the federal and provincial governments on regional assessments and to ensure no jurisdictional overreach.
Amendments were also made to ensure that the legislative framework for impact assessment respects the rights of and the duty to consult with the Indigenous peoples of Canada. This includes Indigenous women, who can be differently affected by industrial and resource projects than non-Indigenous women and Indigenous men, and who may have knowledge that can be particularly relevant and helpful to regional and strategic assessments.
Finally, amendments were passed to change the time period for statutory review of the proposed impact assessment act and the proposed Canadian energy regulator act to five years, rather than 10. Thank you very much.
Honourable senators, regarding the motion before us on the adoption of the report of the Standing Senate Committee on Energy, the Environment and Natural Resources on Bill C-69, I want to thank all members of the committee for the hard work they did. I also want to especially thank the Conservative members of the committee and Senator Richards for getting the committee to travel and for fighting the good fight. It wasn’t an easy one to make some 90 amendments to the bill.
Some people might find this humorous. I’m sorry if it is, but it isn’t funny to us on this side, and it isn’t funny to people in Saskatchewan, I’ll tell you that.
As you may know, nine of the 10 provincial governments asked the Senate for substantial amendments to Bill C-69 even though it was amended more than 100 times in the other place. To me, this demonstrates that the drafting was extremely flawed and that our amendments were crucial for workers across Canada.
I would like to outline how this report respects the clear demands of the province of Saskatchewan with respect to Bill C-69.
There is fierce opposition to the bill across the political spectrum in Saskatchewan. On March 14, 2019, the Legislative Assembly of Saskatchewan voted unanimously to call on the federal government to halt the bill.
Failing that, the Government of Saskatchewan identifies specific areas of the bill they most wanted us to amend. When Saskatchewan’s Minister of Energy and Resources, Bronwyn Eyre, appeared before the committee studying Bill C-69, she said:
It’s hard not to be cynical that, as provinces, we are simply being co-opted by this process, which is why this part of the process in the Senate with you is so important. It provides a chance to turn things around when it comes to what would be an economically devastating bill . . .
The committee took Saskatchewan’s position seriously and amended the provisions of greatest concern to them. I would like to highlight the specific requests we heard from the province and how the committee report addressed those concerns.
Saskatchewan strongly disagreed with section 22 of the proposed impact assessment act. This section lays out the factors to be considered in an impact assessment and, in its original form, lacks clarity, transparency and predictability, as Saskatchewan’s government wrote. They highlighted two new factors as unclear: The extent to which the project contributes to sustainability and the project’s impact on Canada’s commitment with respect to climate change.
These specific factors were addressed by the amendments labelled CPC1.19d, V6. This adopted amendment clarifies section 22 by requiring the government to develop policy guidelines in those areas and identify them to the proponent early in the process. Saskatchewan does not oppose a rigorous environmental assessment process but they insist it be clearly defined, and our caucus supports that position.
Saskatchewan was unhappy with sections 31 through 34 as originally drafted. These sections cover substitution of the federal assessment process for another jurisdiction’s process. They wrote that the new regime would be challenging for most jurisdictions to meet and would prevent substitution from being allowed in most cases.
The committee adopted two amendments, labelled CPC1.26a and CPC1.26b, which addressed sections 32 and 33. Both amendments were designed to make it easier for substitution to go forward. CPC1.26a is specific to the Atlantic Provinces and their offshore industries.
CPC1.26b would clarify that the list of factors that must be considered would be developed before the substitution decision is made. This will help the substitution process go forward for all project types.
Saskatchewan asked us to adopt a suite of amendments to address the unfair treatment of the uranium mining sector under the original language of Bill C-69. To fully correct the issue, amendments were needed to sections 39, 43, 44, 46 and 67 of the proposed IAA. The committee adopted a full suite of amendments to tackle this issue. They were CPC1.31, CPC1.34a, CPC1.34b, CPC1.34c, CPC1.35a and CPC1.45b.
Uranium mining is an essential industry for our province, especially for those who live in the North. The committee showed that they recognized it by adopting six amendments focused on this one issue.
Saskatchewan asked for the amendments to sections 60 through 63 of the proposed impact assessment act. They wrote that these sections should:
. . . not only consider the potential risk of a project but also consider the potential benefits to individuals, communities and regions.
The committee adopted amendments CPC1.42a, CPC1.42b, CPC1.42c and CPC1.42d, which all cover sections 60 through 63.
To give just one example, CPC1.42c requires that the social and economic effects of a project be considered. This clearly addresses the concern raised by the Government of Saskatchewan.
The Saskatchewan government’s final areas of concern with the proposed impact assessment act were sections 65(5) and 65(6). These sections allowed indefinite delays to the timeline for issuing a decision statement to the proponent. The committee adopted amendment CPC1.44, which deleted Cabinet’s ability to suspend the timeline indefinitely.
In the committee’s thorough study of Bill C-69, Saskatchewan’s concern with the Navigation Protection Act — which would be renamed the Canadian navigable waters act in part 3 of Bill C-69 — was also taken into account. Saskatchewan criticized section 10 of the Canadian navigable waters act for introducing unclear requirements around commencing works near navigable waters. The committee adopted amendment CPC49.291 to require the minister to publish guidelines in this area.
Finally, Saskatchewan noted that the definition of navigable waters set out in the act lacks specificity and fails to provide a reasonable and objective test for navigability. The committee amended the definition of navigable water through amendment CPC47.284.
Colleagues, Saskatchewan has been very clear that it saw Bill C-69, in its original form, as an economic disaster. If this bill is going to move forward it absolutely must include the amendments the province has asked for. The committee report acted on all of Saskatchewan’s major requests and I encourage all honourable senators to vote for the adoption of this report.
In closing, I would like to say that this was a very difficult process. I was not a member of the committee, but Senator MacDonald, as the deputy chair, was kind enough to keep me fully informed of what was going on. Along with other senators, I was able to come and witness the work that was being done. I’ll tell you this: It was quite a test of patience. In the end, a number of us got together to move this process along. I want to thank Senator Woo from the other side and Senator MacDonald from this side for the hard work they did on making all these amendments happen. Thank you very much.
Senator McPhedran, do you have a question?
Yes, for the chair.
I’m sorry, but you’ve already spoken on debate.
Honourable senators, I would like to say a few words before we —
When Senator Galvez finished, that’s when you had to ask a question, Senator McPhedran. We don’t usually go back. If you would like to ask a question of Senator Tkachuk, however, you’re welcome to do so.
Are senators ready for the question?
I’m on debate.
Thank you.
I don’t want to come between the Senate and a question on this, but there are a few words I feel I should say.
I can’t tell you how pleased I am to rise today to speak in support of the committee’s report on Bill C-69. I want to speak briefly, and I will reserve the bulk of my comments for third reading debate.
I think if any word or term could characterize the process that we have been through on this bill, it would be extremely hard work. It’s with that in mind that I would like to extend thanks to the many people who have brought us this far and have got us a report which I think is in many ways an excellent one.
I want to begin by thanking the many Senate administration staff members and senators’ office staff who have researched, organized, advised written and toiled over this bill — its analysis, its committee hearings and its issues.
I would like to make special mention of Rebecca Dixon and Sarah Gray in my office, who have been remarkable in their work and support.
I also want to thank specifically each member of the Standing Senate Committee on Energy, the Environment and Natural Resources; the chair of the Committee, Senator Galvez; the committee clerk, Maxime Fortin; the deputy principal clerk, Shaila Anwar; the Senate law clerk’s office and the entire committee staff.
I would like to particularly note the efforts of Senator Cordy and Senator MacDonald, who were on the steering committee, along with Senator Galvez; and the work, effort and analysis of Senator Tkachuk, the critic of the bill.
This process has been intense and difficult at many stages along the way — I think anyone involved would agree with that — but excellent work has been done and we have a report that reflects that work.
There is no question that Bill C-69 — and this is an understatement — has been the subject of much debate and attention within the committee, within the Senate and across Canada. As the bill’s sponsor, I am sincerely glad that so many of you have taken the interest in learning about this proposed legislation that you have, whether by attending briefings, participating at the committee hearings or speaking with stakeholders and Canadians in your provinces and territories.
I have been involved in many committee reviews of bills, and I don’t think I have ever seen more senators who are not members of this committee attend this particular committee review. I extend my thanks and recognition to them as well.
The committee has been studying Bill C-69 since February and, as Senator Galvez has indicated, has heard over 100 hours of testimony from upwards of 275 witnesses. It has received over 120 briefs from stakeholders and engaged in committee hearings across the country in 10 different cities.
In my view, the committee has succeeded in doing a very difficult job and I congratulate the members for it. They have listened, and listened hard, and provided us with a complex set of amendments on a complex bill in response to the intense and diverse input that we have all received since this bill arrived in the Senate more than a year ago.
If the Senate decides to adopt the committee report — I don’t want to be presumptuous — and to pass Bill C-69 at third reading, the government and the House of Commons will be presented with a range of ideas to improve the bill and respond to input from Canadians. As challenging as this process has been, I expect that most of us will look back on the experience as an important and clear indication of what the Senate can do to make bills better and develop effective public policy.
I would ask that senators support this report and allow us to advance the bill to third reading. Thank you very much.
