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, is legislation that would have implications for approval processes for large-scale resource development projects, including pipeline construction.
The bill is being studied by the Senate Committee on Energy, the Environment and Natural Resources; it was adopted at second reading in the Senate on December 12, 2018. It was adopted in the House of Commons on June 20, 2018.
The bill contains three parts. Part 1 would enact the Impact Assessment Act. Part 2 would enact the Canadian Energy Regulator Act. Part 3 would amend and rename the Navigation Protection Act.
Part 1 of Bill C-69 would enact the Impact Assessment Act and repeal the Canadian Environmental Assessment Act, 2012. It would replace the Canadian Environmental Assessment Agency with the Impact Assessment Agency of Canada.
During the planning phase of a project, the Impact Assessment Agency would first have to determine if the project requires an impact assessment by examining whether it:
The public would have the opportunity to provide comments on the project during this phase.
Should the agency decide that an impact assessment is required, the agency would be responsible for carrying it out, with some exceptions.
Impact assessment criteria would include factors currently contained in the Canadian Environmental Assessment Act. Bill C-69 would also require the agency to take into account:
The agency’s findings would be released in a public report; members of the public would have an opportunity to provide comments before the agency prepares a final report and submits it to the government.
The government would also have the power to appoint a review panel to conduct the impact assessment if it believes this would be in the public interest. Certain projects would have to be assessed by a review panel.
Review panel hearings would be public by default; membership would consist of people who are unbiased and free from any conflict of interest, or who have knowledge of relevant interests and concerns of Indigenous peoples.
The government would make the final decision to allow a project to be carried out. In reaching its decision, the government must consider the agency or review panel report as well as the following factors:
The decision would have to be posted online along with a description of the approved project, reasons the decision was made and the period within which construction must begin.
The planning phase would have to be completed within 180 days, although the government would be able to extend this time limit.
Impact assessment conducted by the Impact Assessment Agency would have to be completed within 300 days, although the government would be able to extend this time limit.
Impact assessments conducted by a review panel must be completed within 600 days, though the government would be able to shorten or lengthen this time period. However, if a review panel is assessing a project that would be regulated under the Nuclear Safety and Control Act or the proposed Canadian Energy Regulator Act, the review panel must submit its report within 300 days; the government would be able to extend this time limit.
After receiving an agency assessment, the minister would have 30 days to determine if the project’s adverse effects are nevertheless in the public interest or refer the decision to cabinet. Should the decision be referred to cabinet, the government would have to issue a decision statement within 90 days of receiving the assessment, though the government would be able to extend this time limit.
After receiving an assessment conducted by a review panel, cabinet would have to determine if the project’s adverse effects are nevertheless in the public interest. The government would have to issue a decision statement within 90 days of receiving the assessment, though the government would be able to extend this time limit.
Bill C-69 would also create the Canadian Impact Assessment Registry, which would give the public access to documents and notices provided to or issued by the Impact Assessment Agency, with exceptions for documents containing information such as trade secrets or that would compromise security. It would replace the Canadian Environmental Assessment Registry.
The bill would require the minister to create an advisory council, which would have to include at least three members who have been recommended by an Indigenous governing body or other entity and who represent the interests of First Nations, Inuit and Métis peoples.
The council would have to disclose its advice in a report to the minister issued every two years that would then be tabled before the Senate and the House of Commons and made public.
Part 2 of Bill C-69 would enact the Canadian Energy Regulator Act and repeal the National Energy Board Act, though the replacement act would include large portions of the current act. It would replace the National Energy Board with the Canadian Energy Regulator.
The Canadian Energy Regulator would replace the National Energy Board; unlike the board, the regulator’s primary role would be to regulate the exploitation, development and transportation of energy within Parliament’s jurisdiction.
The regulator would, however, be responsible for recommending whether the government should issue a certificate for a pipeline. Under the proposed Impact Assessment Act, a pipeline project would also have to undergo an impact assessment overseen by a review panel (see Part 1 for more information).
With regard to pipelines, Bill C-69 significantly expands the factors the regulator must consider before making a recommendation. These new considerations include:
The bill would also allow any member of the public to make representations. This ability is currently limited to people who, in the opinion of the National Energy Board, are directly affected by the project or who have relevant information or expertise.
The Governor in Council would retain the final authority to decide whether a pipeline certificate should be issued. Should the regulator recommend issuing a certificate, the Governor in Council would have to either:
Should the regulator recommend against issuing a certificate, the Governor in Council would be able to refer the matter back to the regulator for reconsideration. However, the Governor in Council would not have the power to overturn a recommendation to not issue a certificate.
Under the current National Energy Board Act, a company seeking to make use of reserve land has to seek approval from cabinet. The new Canadian Energy Regulator Act would require the company to get the consent of the relevant band council instead.
Part 3 of the bill would amend the Navigation Protection Act and rename it the Canadian Navigable Waters Act.
It would provide a comprehensive definition of “navigable water” and require the federal government to consider the rights of the Indigenous peoples of Canada in making decisions under the act, among other changes.
FIRST AND SECOND READING
ENEV - Senate Committee on Energy, the Environment and Natural Resources
Bill C-69 was referred to the Senate Committee on Energy, the Environment and Natural Resources after it was adopted at second reading in the Senate on Wednesday, December 12, 2018.