Impact Assessment Bill—Canadian Energy Regulator Bill—Navigation Protection Act
Bill to Amend--Message from Commons--Motion for Concurrence in Commons Amendments and Non-Insistence Upon Senate Amendments Adopted
June 20, 2019
Honourable senators, I rise tonight for my final observations in respect of Bill C-69. Barring a miracle — and Senator Harder earlier in the week indicated that he’s not a great believer in miracles — nor am I — I believe the die has been cast on Bill C-69, despite the fact that an amendment package was endorsed by this chamber and sent to the House of Commons that would allow projects to be built in this country, allow investment to return to this country and take the “Closed for Business” sign out of the window of this country. We had a bill that would have advanced those objectives with the amendments approved by the Senate. Unfortunately, what has returned will not achieve those objectives.
My sense is there is no appetite for further amendments, so there will be no surprise that, of course, I will vote against Bill C-69. My comments today are really reflections for the purpose of the record because this matter will be revisited at some point in time. I want to reflect on the process and the likely results of Bill C-69.
My principal reflections — and I am going to keep it as short and focused as I can — is one I want to commend the Senate and my colleagues for the work that this body did. It’s an outstanding piece of work. I’ve only been a senator for seven years, but I’ve never seen the Senate work so diligently and cooperatively together in a very difficult circumstance.
The bill that arrived from the House of Commons was, to put it nicely, not fully baked. We took the time and energy at many levels to endeavour to create a piece of legislation that would work. I am deeply indebted to my colleagues for taking that matter so seriously.
Of course we had disagreements. I have a view; others have other views. But I respect everyone’s view in this chamber because I know you took the time necessary to understand the issues involved.
I particularly want to ever so quickly recognize three senators who I think made an outstanding contribution and allowed us to get to the point that we did. My colleague, our colleague, Senator Wetston — who unfortunately is not with us tonight — my friend, my law school classmate and an individual who made a very real and strong contribution to endeavouring to get a package that worked.
I also want to acknowledge Senator Richards. If Senator Richards had not taken the position he did at committee, we would never have had the opportunity to fully explore the amendment package that was agreed to by this Senate.
Finally — and I presume some will be surprised — my great friend Senator Mitchell. It is fair to say that we were on different sides of this issue. I can tell you throughout the last year that I’ve been so intimately involved in this file, he has shown nothing but courtesy to me and to those who I have been working with.
To my friend, who I understand will be voting differently tonight, I respect that he had a very tough file and he handled that file in an admirable way.
My second reflection, unfortunately, in my view, is that Bill C-69 will be no more effective than CEAA 2012 was in getting projects built in Canada. With CEAA 2012, I think we all agree, the pendulum had swung a bit too far in one direction. Bill C-69 has swung it in the other direction with the same effect: A level of uncertainty that is too great for projects to be developed.
Thirdly, I would observe, as I think is well understood and was underlined by our colleague Senator Dasko earlier this evening, that Albertans are currently deeply alienated from Canada and their sense of the power structure in this country. The question they ask is very simple: Why would a majority agree to policies that so clearly punish economic success from an industry that sets the global standard in responsible, renewable and non-renewable energy development and First Nations engagement? That is the question that is asked. We’ll simply leave it at that. We’re all hopeful we can navigate this, but I think, as we all understand today, it is a very real issue in this country.
My next observation is that, unfortunately, after TMX, which was approved yesterday and, of course, this is a great announcement. There’s no taking anything from it. There’s no sense being churlish about it. It’s an announcement that was needed. I commend the government for making the announcement. We need construction to start, and we need to ensure that the heavy water that is going to flow is addressed by the government.
I would remind our colleagues that it was a year ago that this chamber supported the bill which I sponsored, Bill S-245, which was a piece of legislation which declared the Trans Mountain pipeline in the general advantage of Canada. There is a whole series of practical business and constitutional reasons that flow from that, but I am indebted to my colleagues for that as well. The House of Commons should have passed that legislation, and they wouldn’t have had to buy a pipeline.
That’s for another day. I suspect we’ll be revisiting Bill S-245, or some successor of it, again as there are going to be very real difficulties as we move forward.
It’s odd to reflect that at this particular time in Canadian history, where our opportunities for trade are limited, whether it’s in agriculture or other areas, that we seem to be taking proactive steps to restrict the export of our most significant export project.
I would also point out to colleagues that all the rhetoric that was advanced as we debated this turns out not to just be rhetoric. Since the decision was taken last week that the House of Commons was not going to accept the amendment package that was put forward by the Senate, I can tell you a couple of things.
While the Toronto Stock Exchange Index has advanced quite strongly over the last four or five days, the sub-index that deals with midstream companies, the very companies that build pipelines, storage and midstream facilities, has hit all-time lows. Some companies have lost between 70 and 90 per cent of their value since the decision was taken by the House of Commons.
I would also point out a couple of comments from Canadian business leaders. The CEO of Imperial Oil, a company well known to us all, owned principally by ExxonMobil, said last week:
. . . unfortunately cause us to step back and deeply consider any and all future major growth opportunities . . . .
When we see a policy like this, a bill like this, there is no balance in it. The proof will come over time, when parties quit investing.
That type of comment was underlined by Satoshi Abe, President of Japan Canada Oil Sands, who has invested in Canada on behalf of the Japanese for over 40 years. They’ve invested well in the billions of dollars, in this country.
He indicated:
Increasing regulatory hurdles and uncertainty simply adds to the challenges making Canada unattractive when compared to other jurisdictions.
This is all since last Wednesday. That is underlined by other leaders in the industry across Canada.
I would observe, as we heard very eloquently from Senator Busson earlier today, and I remember hearing from Senator Nancy Greene Raine when she was with us last year, that we need to know that oil will move, and oil is going to move on trains. What has happened over the last number of months, certainly over the last year, year and a half, is the amount of oil carried on trains is up 500 to 600 per cent. This is not an ideal circumstance. Our very Transport Committee, a year or a year and a half ago, examined this issue and alerted the Senate to the risks that we’re incurring.
The spectre that Senator Busson raised, and I still remember Senator Nancy raising the spectre, she said, literally, “I watched these trains move through central British Columbia on these high trestles.” Whose interest is that in, as Senator Busson indicated so eloquently tonight?
I live in Canmore. I see the trains go through heading into the Rocky Mountains. There used to be 30 or 40 cars. Now there are 140 cars.
My colleagues from Toronto see these trains rumbling through the centre of Toronto, through the centre of Rosedale in Toronto, and Lac-Mégantic, Winnipeg, Regina and Vancouver. What interest do we possibly think we’re serving in that regard? We have to simply pray to God that there is not a disaster, because it’s going to be a very tough mirror to look into.
May I also observe that First Nations, who wish to move from poverty to prosperity, are deeply frustrated with the decision that’s been taken, not only those who currently are developing resources on their lands and will lose economic value, indeed are losing economic value, but those depending on new opportunities. There will be no Eagle Spirit. There will be no engagement with new pipelines, whether by way of storage facilities, owners and pipelines, because there will be no projects. Opportunities will close.
Of course, tax and royalties will decline. Senator Harder very eloquently indicated yesterday when talking about Trans Mountain that we’re not talking about tax and royalty revenues in the thousands or hundreds or millions of dollars. We are talking in the billions of dollars. Trans Mountain is going to generate billions of dollars for both industry and government. All of that revenue from other projects is going to be lost and the consequences that flow from that.
Honourable senators, we also need to know that litigation is going to increase. The principal driver for the work that I and so many others did was to endeavour to limit the litigation risk, because that’s what is keeping proponents from moving forward.
Our inability to craft a package of amendments is going to see an increase in litigation. The reasons are provinces are unhappy with Ottawa, and provinces aren’t happy with each other. My province has already served notice that they are going to take action on all of Bill C-48, Bill C-69 and the price on carbon. That’s in the last three or four days.
British Columbia has indicated they are going to take further action in respect of the pipeline projects. That’s before we get to people who are feeling disadvantaged by the process under Bill C-69. Unfortunately, that risk is going to enhance.
Finally, I have an observation that I wish to share with you, really for the benefit of the record only. As many of you may know, I have been actively involved for the last year in coordinating and working with a group of organizations, people, agencies and governments across the country to develop the package of amendments that ultimately came before the Senate.
There was a process that was followed, but to suggest that the amendments that were accepted were the ISG amendments and the amendments that were rejected were the Conservative amendments is just simply disingenuous. That is not how it worked. The way it worked was like-minded parties developed a package of amendments and endeavoured to find the vehicles required to get them before the Senate. That’s what happened and that’s what worked.
I’m indebted to my ISG colleagues, Senator Wetston, my friends across the aisle and anyone who was prepared to recognize the risks involved and to take up the challenge. That’s how it worked. For anyone to say these were the Conservative amendments and therefore they can’t be approved is just simply disingenuous.
What do I hope we could achieve? This phase of the battle is over. We’re going to vote tonight and miracles may happen, but this phase of the battle is over.
I’m urging constructive dialogue on developing an energy strategy for this country, not rhetoric, a hope, or a wish. We need a plan. We need a plan that involves all interests, renewable and non-renewable.
A lot of work was done by a lot of organizations over the last decade. It’s there to be done. Someone somewhere needs to pick up that work and endeavour to move forward to develop a strategy so we don’t need to go through this again. We don’t need to put the country through this again. We’ll understand what our national interest is, and we’ll work collectively toward it.
Finally, I want to thank the tens of thousands of Canadians who wrote, spoke out and in many cases marched in the belief that their voices would be heard. I want to thank the nine premiers of this country. Nine premiers, colleagues.
I’m sorry, Senator Black, but your time has expired. Are you asking for five more minutes?
May I?
Is leave granted, honourable senators?
I wish to thank the First Nations groups, the Chambers of Commerce, the think tanks, the environmental groups and the project developers. A broader coalition of opposition I have never seen developed. I am appreciative to people for their efforts.
As you can imagine, I have heard, as many of you have as well, from hundreds if not thousands of Canadians who have expressed their ideas, their concerns and their frustrations. I thank them every day — and I mean every day — wherever I am. People come up to me in airports, grocery stores and coffee shops, wherever I am, to express their frustrations but, more importantly, to thank me and my colleagues for the work we’re endeavouring to do. I simply want to underline that this is my work. I’m working on behalf of the resource industries, renewable and non-renewable, and everyone who is touched by those, and that work will continue.
Thank you, colleagues.
Honourable senators, I rise today to speak on the message from the House of Commons on Bill C-69.
I would like to first thank the Energy Committee for their understanding and support in passing an amendment I had put forward on behalf of the Native Women’s Association of Canada. This specific amendment dealt with the inclusion of a culturally relevant gender-based analysis within regional and strategic assessments. Although a GBA is required for impact assessments, it was conspicuously absent within these other regional and strategic assessments. To rectify this oversight, I, along with NWAC, had proposed adding, on page 55, as clause 1(ao)(iii)(b):
. . . include a gender-based analysis of the effects of the policies, plans, programs or issues being assessed.
Colleagues, to my disappointment, this subclause was subsequently removed in the other place.
I would like to put on record the disservice this does to Indigenous women and men, especially those who live in First Nations, Metis and Inuit communities near project developments, and especially where work camps have been situated.
Honourable senators, gender-based analysis is about regaining equality and balance. It is an analytical process used to assess and document how diverse groups of women, men and non-binary people may experience policies, programs and initiatives. With First Nations, Metis and Inuit, the other factors that come into play are race, ethnicity and the historical colonization and discrimination that has allowed First Nations, Metis and Inuit peoples to be marginalized and made vulnerable, especially the women. In this section, I am speaking about First Nations, Metis and Inuit women.
In her 2006 Discussion Paper Series in Aboriginal Health, No. 4, entitled, First Nations, Métis and Inuit Women’s Health, our esteemed colleague Senator Yvonne Boyer stated:
Canada’s institutions that claim to be value free continue to reflect a male construction of reality. The implementation of colonialism through sets of male created and centred values has shaped institutions, laws, legislations and policies that have had a long-lasting negative effect on the health of Aboriginal women. Colonial laws and policies were developed that targeted the power of Aboriginal women as family anchors. For instance, the Indian Act, residential schools, sterilization laws, mental health laws, forced removal of children and enfranchisement were integral in attacking the essence of Aboriginal woman as caregivers, nurturers and equal members of the community.
She continues by stating:
Women made integral decisions about family, property rights, and education. Underlying principles of gender balance streamed through early Aboriginal society. The issue of balance, however, is not to be construed or constructed as similar to the Eurocentric or feminist or western legal tradition understandings of “balance” as equating “equality.” Aboriginal law is not ordered around Eurocentric values or perceptions of what is “balance” or “equality.” Rather, for Aboriginal women, balance is understood as respecting the laws and relationships that Aboriginal women have as part of the Aboriginal law and ecological order of the universe. Professor Patricia Monture-Angus notes: . . . Aboriginal culture teaches connection and not separation. Our nations do not separate men from women, although we recognize that each has its own unique roles and responsibilities. The teachings of creation require that only together will the two sexes provide a complete philosophical and spiritual balance. We are nations and that requires the equality of the sexes.
Senator Boyer goes on to say:
Unlike European culture imposed through colonization, Iroquoian culture was not centered on conflict or subordination. . . . each gender had a role and that each gender was superior in their sphere of responsibility. Both gender roles were viewed as equal and necessary for the health and survival of the community. . . .
The common thread running through all groups of Aboriginal society is that equality and gender balance was foremost, the men couldn’t survive the harsh conditions without women and women could not survive without the male counterpart. Professor Emma LaRocque notes:
Prior to colonization, Aboriginal women enjoyed comparative honour, equality and even political power in a way European woman did not at the same time in history. We can trace the diminishing status of Aboriginal women with the progression of colonialism. Many, if not the majority, of Aboriginal cultures were originally matriarchal or semi-matriarchal. European patriarchy was initially imposed upon Aboriginal societies in Canada through the fur trade, missionary Christianity and government policies.
Honourable senators, members of the Senate Energy Committee heard witness testimony about the devastating impacts that energy and resource extraction have on women and northern communities, effects which are exacerbated by the economic boom and bust cycles.
These adverse impacts are explained in the Feminist Northern Network’s article, entitled, Gendered and Intersectional Implications of Energy and Resource Extraction in Resource-Based Communities in Canada’s North. Through this article, the authors indicate that public discourse around resource development often focuses on economic growth and employment. However, these aspects are emphasized at the expense of ignoring the deep and lasting social and cultural effects that this degree of development has on communities.
Resource development of all kinds places strain on the physical and social infrastructure of these communities, affecting the tax base, the availability of affordable housing, access to health services and transportation systems. Resource development affects community life, both when large numbers of workers migrate in and when they leave. Further, the costs and benefits of resource development are not evenly distributed across populations or communities.
Colleagues, in the aforementioned Feminist Northern Network article, it is noted that the arrival of resource development projects can affect communities’ substance abuse rates. Sexual exploitation, sex work and human trafficking can increase when resource development projects enter a community. We have heard women from these communities recounting rape and violence that has been suffered. As we know, substance abuse often turns into gender-based domestic violence and child abuse. Ultimately, resource development projects can disrupt and negatively impact Indigenous traditions and cultural practices.
Honourable senators, I would like to quote from Canada’s National Action Plan 2017-2022, Gender Equality: A Foundation for Peace. Specifically, I would like to quote from the letter from the ministers, wherein they state:
. . . in conflict settings, women face particular threats. They must often defend themselves against sexual and gender-based violence . . . Today’s status quo—marked by unequal power relations and discriminatory social norms, practices and legal systems—keeps women and girls from influencing processes that profoundly affect them.
In a section entitled Canada’s own challenges: Learning from our experience, this federal report goes on to say:
Although Canada is not a fragile or conflict-affected state, women in Canada face a variety of challenges including gender-based violence. Indigenous women and girls in particular face intersecting discrimination and violence based on gender, race, socioeconomic status and other identity factors, as well as underlying historic causes — in particular the legacy of colonialism and the devastation caused by the residential school system . . .Canada has committed to a renewed relationship with Indigenous peoples in Canada. The government wants to right the wrongs of the past and address current issues and concerns . . . . It has accepted the Calls to Action outlined in the Final Report of the Truth and Reconciliation Commission of Canada and confirmed its intention to adopt without qualification the United Nations Declaration on the Rights of Indigenous Peoples . . . Nevertheless, much work remains to be done before Indigenous peoples in Canada have adequate housing, quality education and safe drinking water, before they no longer face discrimination, and before Indigenous women and girls no longer have to fear for their physical safety.
Colleagues, for the many reasons I have highlighted, I commend our Energy Committee for taking an important step in protecting vulnerable members of our society when they adopted this amendment to include a gender-based analysis in regional and strategic assessments. I felt it important to now put on the record my dismay and disappointment that the other place did not agree with the necessity of this vital consideration.
In light of the recent release of the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, this amendment seems particularly important, as it falls in line with the report’s recommendations. I would like to draw the attention of honourable senators to the report’s Calls for Justice, specifically No. 1.9, which states:
We call upon all governments to develop laws, policies, and public education campaigns to challenge the acceptance and normalization of violence.
Although this critical amendment was ultimately defeated by the hand of the government, I thank you all, again, for your initial support in accepting this important and meaningful step towards equality. Thank you.
Honourable senators, I want to say, very briefly, since I abstained throughout the process, that the very worst case scenario that I anticipated has come to pass. The balance that the Senate amendments managed to reinsert into this bill, I thought, was adequate. I’m very sorry the government has decided not to recognize that it would have helped them and all participants to realize what the government hopes to happen with this bill.
Having said that, I want to say that I believe the impact assessment act, as it will be, is going to be deeply flawed. It will be deeply flawed. I think there are four areas that will need to be addressed and corrected in due course.
First, the political decision makers. To have a cabinet and/or minister making decisions is not a good sign. When we went overseas teaching other people how to conduct impact assessments, we always said, “Try not to politicize the decisions; try to have an arm’s-length, independent decision maker.” And here we are in Canada adopting a practice that is more often seen in jurisdictions that we would not boast about in regular dinner party conversations.
Second, we have not succeeded in establishing a vehicle or a practice by which government policies are clearly articulated and decided upon prior to the impact assessment being undertaken. That is one of the problems that we’ve been suffering from over the last seven to ten years. We need a platform. We need a space in which government policy decisions are thoroughly vetted and participated in by all of the citizens and interests that are applicable in Canada and then apply that policy, which is by that time a known entity in the assessment process. You know it ahead of time, you know what it contains and you have something you can work with — not something that changes and is declared, seven years later on a rainy day in November, after you’ve spent $800 million and have all of your approvals or at least recommendations for approval, and at the last moment an announcement of a government policy that would have stopped the practice ahead of time if it had been made appropriately.
Third, the expertise of assessors will be sorely missed. I can only recommend to you the transcript of the committee. I think the witness Andrew Roman put it all very well, as he said, “You can’t be a judge if you don’t hear the evidence.” You can’t be a judge if you sit there and rely on someone else’s summary. You can’t take a briefing note and become an insightful assessor. You have to know what you’re doing and you have to have sat through the evidence and you have to have listened and digested it. That’s not been established.
Fourth, there are still too many platforms for court challenges. They have not been eradicated from this bill. Indeed, what we call a privative clause in legal terms, which is a judicial review process, has not been narrowed sufficiently to contain the integrity of the assessment process. What you find is people dashing off to court and arguing their point of view all over again, which allows for so many exits. You’re forever rushing off and delaying the process. So it’s uncertain and it doesn’t actually address everything in context.
Those are four major, fatal flaws in the process that I think have not been secured. In the final analysis, I will also say that the process does not rely on legislation; it relies on management. Process management will be very important. It requires discipline from those who are involved. We will keep our fingers crossed that the impact assessment agency, in particular, which has been given additional authority, will also find the backbone and the professionalism to actually exercise disciplined management of the process.
I will leave it at that. Thank you very much.
Honourable senators, we’re back to the future here. I am referring, of course, to the experience we had with Bill C-49 about this time last year. We proposed 18 amendments to that bill, most of which the government promptly rejected. It accepted only two. Here we are again. We send Bill C-69 to the house with 188 amendments, and they send it back with almost all of the amendments stripped — amendments that were supported by the provinces, the official opposition and the industries that will be most affected by this bill, the ones whose project proposals will be subject to this new review process.
But, we’re told, the government accepted a record number of amendments, which some are citing as proof that the new, improved Senate is doing good work. What they have left out is that they were the government’s own amendments, funnelled through the ISG. Of course they’re going to accept them.
Honourable senators, we made 188 amendments. The house made 100 amendments. That’s almost 300 amendments. When the Minister of the Environment appeared before the Standing Senate Committee on Energy, the Environment and Natural Resources to testify on Bill C-69, she said:
Bill C-69 has benefited from the input of literally thousands of Canadians over months and months of consultation and engagement. In fact, the process began in January 2016.
For three years, people across this country have provided input, including industry, academia, and our indigenous, provincial and territorial partners.
Two expert panels and two parliamentary committees held their own meetings, conducted studies, heard witnesses and reviewed comments from the public. This input has benefited and strengthened the bill.
Senator Mitchell, at second reading, said:
Bill C-69 is based upon an extensive, transparent, 14-month consultation process designed to capture the diverse views of Canadians, including Indigenous peoples, industry, provinces and territories and the general public. This involved two expert panel reviews, two parliamentary standing committee reviews, hundreds of meetings and written submissions and thousands of online comments.
It boggles the mind. After all these consultations with Indigenous peoples, industry, provinces, territories and the general public, all those expert review panels, all those hundreds of meetings, written submissions, thousands of online comments, the Senate would see the need to make 188 amendments to Bill C-69 and send it back to the house.
Exactly how intensive were these consultations? How engaging were these engagements that the Liberal members in the other place felt compelled to make 100 amendments to their own bill and the Senate 188 more?
Some in this place consider it cause for celebration that the government rejected nearly all the Conservative amendments and accepted so many more. “Historical, unprecedented,” one ISG senator tweeted. “I think this is proof of what the new Senate can do.”
And the old Senate as well, I might add. Some of us have been around long enough to remember the Federal Accountability Act, to which the Senate made 180 amendments, all of which were proposed by the opposition, and the Harper government accepted close to 100 of them. To call this message historical, unprecedented and proof of what the new Senate can do is like putting lipstick on a pig: Let’s not pretend that it fixes the bill.
On the weekend, the Minister of Environment explained why she rejected the opposition amendments. In reference to Senator Black, and at the risk of being disagreeable, I’m going to quote her. The main reason, she said, is that they were proposed by the oil industry.
Let’s be clear on what Conservative politicians want. . . . They want us to copy and paste recommendations written by oil lobbyists.
That’s why we rejected 90 per cent of the Conservative amendments.
I have a couple of things to say about that.
First, Rachel Notley will be shocked to learn that she is now a Conservative politician and a shill for the oil lobby. As will Alberta Liberal leader David Khan. They both signed a letter to the Prime Minister and Senator Harder backing the amendments — all the amendments — as a package.
Second, if the industry was good enough to consult with and listen to when this government conducted its consultations leading to the introduction of Bill C-69, why would she reject their recommendations out of hand now? Not because of their substance, apparently, which she did not even address, but simply because they came from the oil industry.
This is the same industry she spoke glowingly of at second reading of the bill in February 2018:
Our government understands the importance of the resource sector to our economy. Over $500 billion in major resource projects are planned across Canada over the next decade. These projects would mean tens of thousands of well-paying jobs across the country and provide an economic boost for nearby communities . . . .
But when the same industry supports Conservative amendments to her bill, she vilifies them. That is a whole other level of hypocrisy.
By the way, the Harper government did not gut the environmental assessment process; nor was public trust eroded in how the NEB made its decisions. The NEB has existed since 1959 and is recognized in Canada and worldwide as an expert regulatory authority. There was no need to get rid of it. Anything wrong with the environmental process could have been fixed by amending CEAA 2012. This government is obsessed with Stephen Harper and has a mania to erase all things Conservative.
So the only reason I can think of for getting rid of the NEB is that it was the legislation of Conservative Prime Minister John Diefenbaker from the Province of Saskatchewan.
Third and finally, the amendments we proposed were not simply Conservative amendments; they are the people’s amendments — those who live in the provinces and towns most affected by this bill. Listen to what they have to say.
The Deputy Reeve of Lac Ste. Anne County notified me last week of a motion a councillor had moved in that municipality that included these words:
THAT proposed legislation in the form of Bill C-69, without the Senate amendments, will be detrimental to the viability and sustainability of Lac Ste. Anne County and the energy sector.
She asked the “Honourable members of the Senate of Canada . . . to defeat Bill C-69 if it returns to the Senate without all the amendments originally passed in the Senate.”
The Mayor of Bonnyville wrote to ask that the Senate defeat or reinstate the previous amendments to Bill C-69, which were originally passed from the Senate to the government. “Please consider the livelihood and well-being of our community when you vote,” he wrote.
Councillor Ray Prevost of Bonnyville moved a similar motion to the one I cited above:
THAT the Town of Bonnyville Council encourage Honourable Members of the Senate of Canada to defeat . . . Bill C-69 if it returns to the Senate without the amendments originally passed by the Senate.
Greg Sawchuk, Reeve of Bonnyville, wrote me, pleading that the Senate consider the thousands of local workers in the oil industry there. He wrote:
Industry works with residents, municipalities, First Nations and Metis Settlements in a cooperative manner to ensure that the environmental footprint of their businesses is minimized. Ensuring the ongoing attractiveness of the region is a significant goal for the industry, as it is an incentive for trained workers to make their home here.
Industry has long worked with our local indigenous population to create jobs, to build business partnerships, provide ongoing training and offer scholarships to local students. Cold Lake First Nation operates over 40 businesses tied to the oil and gas industry, employing its own members and others from Indigenous communities in British Columbia and Saskatchewan. They are nationally recognized for their unique partnerships with the oil and gas industry, winning many business awards for their cooperative endeavours.
Thorhild County Council and Wood Buffalo Council each implored the Senate to defeat Bill C-69 if it is returned here without our amendments. The Wood Buffalo motion includes these words:
THAT proposed legislation, in the form of . . . Bill C-69 without the Senate amendments, will be detrimental to the viability and sustainability of the region of Wood Buffalo and the energy sector.
You will recall, honourable senators, that Wood Buffalo includes Fort McMurray, a town devastated by wildfires a few years ago. Now with Bill C-69, this government is hell-bent on adding insult to their injury.
Before I end here, I’d like to thank the Deputy Chair of the Standing Senate Committee on Energy, the Environment and Natural Resources, Michael MacDonald, all my colleagues and independent Senator Richards for their work on the committee. I also want to thank Senator McCoy, who often came to the committee and asked questions that were tough and good questions, and much appreciated.
Honourable senators, with this message, the government has done all of us — all those in this place who worked so hard on the amendments — a disservice. That’s what the government has done. They have done the people of Bonnyville, Thorhild, Wood Buffalo, Lac Ste. Anne County and other towns and cities in Canada that support the resource industry a disservice with this message.
Mark my words, these people will let them know exactly how they feel this October.
Honourable senators, I rise to speak to the message from the House of Commons on Bill C-69.
Bill C-69 has been coined “the no more pipeline bill,” based on the false assumption that this bill solely addresses the oil and gas industry. This bill has wide-ranging implications on many sectors of our economy and touches on many facets of major infrastructure projects and resource development in Canada.
If Canada can’t get major projects off the ground, like pipelines, high frequency trains, bridges, clean electricity and transmission lines, marine terminals, we risk serious harm to our economy. Naturally, this implies less good-paying, family-supporting jobs for Fred and Martha and less revenue from royalties and taxes to fund our country’s many generous social, health and education programs.
It goes without saying that this bill has the potential of totally disrupting investor confidence in Canada and putting a wrench in major infrastructure projects. For example, last month at a three-day Canada gas and LNG exhibition and conference in Vancouver, one expert panellist proposed that LNG — Canada’s $40 billion project, the largest in Canada — would probably never have been sanctioned if it had to pass the Trudeau government’s proposed new impact assessment review.
I remind colleagues that LNG Canada is scheduled to responsibly liquefy and export the cleanest natural gas in the world to Asian markets to help displace coal and reduce worldwide GHG emissions.
Despite what we may believe, I honestly think this government wants to shut down, perhaps in a subtle way, the oil and gas industry. Yet the Liberal government wants to rely on clean LNG to get global carbon credits so it can get closer to its climate change goals.
In his second reading speech, Senator Mitchell told us that Bill C-69:
. . . aims to ensure that the impacts of resource projects are being reviewed rigorously so as to build public and Indigenous peoples’ trust and to meet the exacting interpretations of the courts, and it will implement provisions to sustain and enhance industry’s competitiveness and investor confidence.
I think it’s fair to say the government aimed, took a shot in the dark and seriously missed the target with this bill. We often heard in our committee hearings that competitiveness and investor confidence would be further eroded with this bill. Our committee tried to fix that.
Now, some months later, he recognizes that the final version of the bill will have been significantly enhanced by the work of the Senate. There is no doubt about it: Bill C-69 was a bad bill from inception and we heard some rather eye-opening and mind-boggling testimony during our committee’s proceedings.
In my humble opinion, the Senate’s 188 amendments finally made Bill C-69 kind of workable. Many premiers have urged the government to accept the Senate’s full amendment package, but the government has said, “Thanks, but no thanks.”
Much credit is due to the Senate and its comprehensive review of this bill, in particular, the 14 members of the Standing Senate Committee on Energy, the Environment and Natural Resources. We held meetings in nine Canadian cities. Despite what some may think, I believe there was much value in that exercise.
I am particularly proud of the work of the Senate’s official opposition. Some have accused us of being obstructionist or wanting to delay the passage of Bill C-69 indefinitely. Last week, Minister McKenna told Don Martin that Conservative senators delayed this for a year. I reject that accusation. I can’t speak for my caucus colleagues, but I’ve always wanted to improve this bill. I am happy our caucus pushed hard to have the committee travel and to do a thorough review of this bill. I think we all greatly benefited from those hearings.
I also think many Canadians benefited from this experience. When we hit the road, many finally felt like someone was genuinely listening to them and to their concerns. After all those hours of meetings, a few things have become crystal clear to me. First, Bill C-69, like Bill C-48, has been one of the most toxic, polarizing and divisive bills that we have had to deal with since my appointment to the Senate.
As I said a few weeks ago, Trudeau brags about bringing people together, about finding the right balance between the economy and the environment and not engaging in divisive politics. He has been extremely unsuccessful on that front and it became quite evident during our many meetings.
He has managed to alienate an entire segment of the Canadian population. This was not exclusively an east versus west issue. Need I remind you that nine of the 10 provinces had various degrees of concerns with this bill?
Second, and to our credit, the Senate did outstanding work in listening to Canadians on all sides of the issue. We should be tremendously proud of that. I tip my hat to all those behind the scenes who worked hard on this file. I know it has been grueling and at times frustrating. I think the bill we sent to the house was a much better piece of legislation.
Third, the Trudeau Liberals utterly failed Canadians when consulting with them on drafting Bill C-69.
When was the last time a government bill underwent more than 300 amendments from both Houses of Parliament? My goodness, the bill is only 359 pages and that’s cover to cover.
It goes to show you the poor quality of the government’s work. I truly believe our Senate amendments made this bill better. It would work for industry and help stimulate our country’s economic prosperity and protect our environment. However, the government has rejected dozens of our amendments. In fact, it even brags about accepting so many of them, implying that we should be satisfied with the outcome. In other words, we should count ourselves lucky they accepted any.
In a speech last week, Minister McKenna argued that the government accepted amendments that made sense and not those from Conservative politicians.
She said:
Conservatives in the House and the Senate want to replace environmental reviews with pipeline approvals. . . . Their goal has been to weaken the rules, and we all know where that road leads.
Allow me to remind the honourable minister of a few facts. On May 16, the bill was severely amended in committee and it was agreed unanimously that it be reported back, as amended, to the chamber. The bill was then passed on division in the Senate on June 6 with the committee’s full suite of amendments.
Some have argued that the changes the committee made went too far. They claim that senators were influenced by big oil to pass these amendments or that we are capitulating to the demands of the oil and gas industry. Rather, I would suggest that the Senate’s amendments were a compromise that actually found kind of a balance the government has been bragging about all of these months.
I am obviously disappointed but not surprised that the government rejected the bulk of the amendments that came from our side and that were endorsed by the Senate, I might add.
In response to the message from the other place, I would like to focus on just one element we amended, which the government has rejected, that touches on public participation.
Before I address why I think the standing test element is useful, I want to share with you a moment during one of our hearings that justifies establishing some parameters around public participation or, at the very least, allowing for some sort of mechanism to ensure that those affected by a project or experts on the matter aren’t drowned out by others.
Let me set the stage for what happened at the Fort Garry Hotel during our public hearings in Winnipeg, on April 12. Our second panel that morning included some Metis and First Nations leaders, including elder David Scott of the Swan Lake First Nation. During his appearance, environmental activists who were sitting in the audience, suddenly stood up next to our tables and unfurled some banners in protest. They stood there in silence, in front of the cameras, while our hearings went on. It was all done in a peaceful and respectful manner, until one protester decided to interrupt a senator who was asking Elder Scott a question.
Not only did this individual interrupt our proceedings, but he also disrespected our First Nation witness. Our meeting was briefly suspended while the protesters were kindly asked to leave the room. The protester announced, as he was exiting the room, that his group was going to hold a news conference elsewhere in the building.
I share this story with you for two reasons. First, I think it speaks volumes that when protesters are escorted out of the room, the media crews and reporters left to follow them to their news conference. They showed a complete disregard to Elder Scott and what he had to say. In other words, they were focused on the message from the activists, who showed up in small numbers but had loud voices. Clearly, Elder Scott’s heartfelt and passionate testimony was not that important to them.
Second, as I said at the time of the encounter, individuals came in the room with a message to spread and perhaps some ulterior motives and actually overtook the proceedings. This, in my view, is what is currently happening on a larger scale with our resource development projects across this country.
While this story is anecdotal, I believe it reflects in some ways what the government was hoping to achieve with Bill C-69 in terms of public participation in the impact assessment process.
The government claims that removing the regulator’s powers to deny standing will make public participation more meaningful. Under the current legislation, people who are directly affected by the construction or operation of a proposed project must be allowed to participate in the process. People who may have relevant information or expertise may also contribute to the assessment. Bill C-69 seeks to make impact assessments wide open by removing the “standing test.”
Thanks to the committee’s work, we amended the bill in order to make the public participation component of assessments more efficient, practical and more or less workable. One of the amendments adopted in committee, labelled as amendment 1(p)(iii), gave the agency the powers and flexibility to establish the manner that it considers appropriate for members of the public to meaningfully participate in an impact assessment, taking into account: one, the degree to which a member of the public is directly affected by the designated projects; and two, whether a member of the public has relevant information or expertise regarding the manners to be decided.
It became apparent to me that allowing anyone and everyone to have their say in project proposals could lead to the drowning out of voices from those who are actually directly affected. The situation with Elder Scott in Winnipeg reflects that concern.
In no way did the proposed amendment enforce the “standing test” and limit public participation. Rather, it gave the agency some direction in assessing the value of the public’s participation.
I appreciate the government accepted an amendment we proposed, which gives the agency and the commission the ability to set some rules and expectations for public participation. I feel it does not go far enough.
If we do not weigh the interests of different parties appropriately, we risk creating a process that is terribly unfair. Directly affected local residents should receive the highest priority when project impacts are considered, otherwise their voices risk being drowned out, just like other Indigenous leaders during our meeting in Winnipeg. Some of the amendments that were adopted by the Senate tried to partially resolve that issue.
Honourable colleagues, environmental assessments are serious undertakings and we should not encourage those who would make a mockery of them to participate. To do so will only slow down project approvals in Canada, add unnecessary risk for investors and encourage businesses to execute projects in other countries.
Processes to rank participation, in other words, to focus on expert knowledge, relevant information and those who may be affected by a proposed project were used responsibly in the past. I strongly believe they would be used as responsibly in the future if our proposed amendments had been accepted by the government.
MP Shannon Stubbs made a good point in her remarks last week in the other place: “The standing test is not used to screen out worthy applicants. Rather, it’s used responsibly to screen out only those people who would not add any value to the environmental assessment of projects. I believe it is in Canada’s best interests.”
I truly think it would be the responsible thing to do if we insisted on public participation amendments, but I won’t. This is not a hill to die on. It certainly is an issue I felt needed to be addressed.
Your time is up.
Thank you, senators.
Honourable colleagues, I am pleased to have the opportunity this evening to say a few words on the message from the house as it relates 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.
While I am pleased to say a few words on the message, I am definitely not pleased with the bill as it stands before us today. In the limited time I have this evening, I will focus my remarks on the extremely negative effect the passage of this bill will have on my home province of Newfoundland and Labrador.
I also want to emphasize that these concerns are not only being brought forward by me but, indeed, are the non-partisan concerns for many people in my province, as well as those involved in the oil and gas industry, including Noia, the Newfoundland and Labrador Offshore Industry Association.
Bill C-69 is also of great concern to the provincial Government of Newfoundland and Labrador, which, by the way, is one of the only two provincially Liberal-led governments in Canada today. I would also like to add that the other provincially Liberal-led Government of Nova Scotia is fully supportive of the issues and concerns that the Government of Newfoundland and Labrador have put forward in regard to Bill C-69.
I ask for your indulgence in order to present a little piece of history. In 1985, the Government of Canada and the Government of Newfoundland and Labrador signed an agreement called The Atlantic Accord. This was an agreement to jointly manage the offshore oil and gas resources adjacent to Newfoundland and Labrador.
Section 2 (c) of the agreement reads:
to recognize the right of Newfoundland and Labrador to be the principal beneficiary of the oil and gas resources off its shores, consistent with the requirement of a strong and united Canada;
Section 2 (d) reads:
to recognize the equality of both governments in the management of the resource, and ensure that the pace and manner of development optimize the social and economic benefits to Canada as a whole and to Newfoundland and Labrador in particular;
In my opinion, Bill C-69 takes us in a completely different direction.
I want to stress the word “jointly.” Through this agreement, the Canada-Newfoundland and Labrador Offshore Petroleum Board was born. There would be three members appointed from the federal government and another three from the province. Both governments would jointly agree on a person to be the chair of the board.
This accord was considered to be a watershed in the province’s economic development. Its goal was “to make the province the principal beneficiary” of our offshore oil resources. The accord brought financial benefits, and with modifications in 2005 we reached the status of a “have” province in 2008. It was a great moment in the history of our province and a great moment as a partner in the Canadian Confederation.
The accord also provided for joint management, including environmental stewardship and safety. This has worked very well for Newfoundland and Labrador and, indeed, for Canada as a whole.
Once again I want to stress the word “jointly” because we, the people of Newfoundland and Labrador, support our provincial government in their objection to the fact that Bill C-69 flies in the face of the spirit and intent of the Atlantic Accord.
Our Premier, Dwight Ball, sent a letter to the sponsor of the bill in the Senate, Senator Mitchell, putting forward his government’s objections to certain clauses of Bill C-69. He offered amendments which would address our province’s concerns. During second reading, I put forward, word for word, one of the amendments proposed in the letter from Premier Ball and was very disappointed that this amendment, from the Government of Newfoundland and Labrador, from the people of Newfoundland and Labrador, supported by the Government of Nova Scotia, was rejected in the Senate.
On June 11, the Minister of Natural Resources for Newfoundland and Labrador, the Honourable Siobhan Coady, raised several of the government’s concerns with Bill C-69 in a letter to the Honourable Catherine McKenna and offered several concrete suggestions on how to address those concerns. Once again, no changes or amendments were forthcoming.
On Monday morning, June 17, I along with some other senators from Newfoundland and Labrador, held a conference call with Premier Ball and Minister Coady where we discussed any and all possible avenues open to us to have the concerns of our province dealt with in a productive way. Sadly, I have to say that at this stage in the process our options are extremely limited, if there is any option at all. This is very disappointing.
In 1949, our province brought into Confederation possibly the richest fishing grounds on the planet. When we joined Canada, the total control and management of that great resource was placed in the hands of people here in Ottawa. The dismal failure of the management plan has caused untold misery to the people of my province. The idea that resources of the ocean that were and still are so important to the people of Newfoundland were being managed by the people in downtown Ottawa, where the only water they ever saw was that of the Rideau Canal, I find very ironic. But I digress. I will leave that story for another day.
The oil and gas industry has been very positive for the people of my province. As an example, the average weekly wage in Newfoundland and Labrador in 1998 was $529, while in Canada it was $606. Fast forward to 2017 and the effect of the oil and gas industry, Canada’s average weekly wage was $976, while Newfoundland and Labrador’s was $1,035. Joint management has worked very well for the oil and gas industry in our province.
As I said before, Bill C-69 will take us back in the other direction. Bill C-69 takes away joint management and puts the power totally in the hands of the federal Minister of the Environment. In our opinion, this is wrong, unjust, unfair and in total disagreement with the spirit of the Atlantic Accord.
It may take up to three years for a permit to be awarded to an oil company now for the permission to drill an exploratory well. Our provincial government is asking that exploratory wells be taken off the project list. Why? Because there are jurisdictions that are leaders in environmental stewardship that are undertaking reviews of offshore exploration wells in a fraction of the time that we are: Norway, 79 days; Australia, 144 days; compared to Canada, 900 days. Something, my dear friends, is not right, and definitely not providing a stable and secure investment environment.
Bill C-69 will permit Newfoundland and Labrador to have two guaranteed seats on the environmental review panel that could be made up of five, seven or nine members or whatever amount the Minister of the Environment decides. I call it as I see it. This is not in any way joint management.
Bill C-69 says the Government of Canada will consult with the Government of Newfoundland and Labrador. The Government of Newfoundland and Labrador would like to see the word “consult” removed and replaced with the word “agree.” After all, one would be led to believe that joint management is agreeing on issues, not consulting on them. Joint management is a 50-50 arrangement.
To give an example, your partnership with your spouse is a 50-50 arrangement. You consult for a while and then one person dictates how things are going. That’s not the way it works.
The Atlantic Accord was signed in good faith many years ago. It has benefited Newfoundland and Labrador greatly, and has definitely benefited this country of Canada. It has worked well, and investors have told us time and time again that they want stable and competitive regulatory regimes. The Atlantic Accord provided that. Sadly, Bill C-69 takes that all away. The joint management regime is eroded and the Atlantic Accord is on life support. Premier Ball announced earlier today that he is prepared to invoke an arbitration clause in the Atlantic Accord if Ottawa does not respect the deal’s joint management principles around offshore oil and gas resources. We support his government’s efforts in that regard.
In closing, I want to make a comment in regard to Senator Black’s reference to Fort McMurray. Fort McMurray, many have said, is the largest city of Newfoundlanders outside of Newfoundland and Labrador. It was. It has served us very well.
I went to Fort McMurray myself when I was 17 years of age for a couple of years. Many Newfoundlanders and Labradorians have done very well in Fort McMurray. But you have to go no farther than my hometown, a community of 300 people, to see the effects of the shutdown in the oil and gas industry in Alberta and how it has affected the small communities of Newfoundland and Labrador. This concern is widespread. This concern is not individualized. It affects the whole country. Bill C-69, in my view, is not where we need to be going.
Colleagues, in all sincerity, passage of Bill C-69 in its present form is a sad day for the province of Newfoundland and Labrador and my country of Canada, therefore, I cannot support the message from the other place.
Are honourable senators ready for the question?
It was moved by the Honourable Senator Mitchell seconded by the Honourable Senator Gagné 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 — shall I dispense?
Is it your pleasure, honourable senators, to adopt the motion?
All those in favour of the motion please say “yea”.
All those opposed to the motion will please say “nay.”
In my opinion, the “nays” have it.
I see two senators rising. Do we have an agreement on the bell?
The vote will take place at 10:42.
Call in all the senators.
