Bill C-49

An Act to amend the Canada—Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to other Acts

This enactment amends the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act to, among other things,
(a) change their titles to the Canada–Newfoundland and Labrador Atlantic Accord Implementation and Offshore Renewable Energy Management Act and the Canada–Nova Scotia Offshore Petroleum Resources Accord Implementation and Offshore Renewable Energy Management Act , respectively;
(b) change the names of the Canada–Newfoundland and Labrador Offshore Petroleum Board and the Canada-Nova Scotia Offshore Petroleum Board to the Canada–Newfoundland and Labrador Offshore Energy Regulator and the Canada–Nova Scotia Offshore Energy Regulator, respectively (“the Regulators”);
(c) establish the Regulators as the regulating bodies for offshore renewable energy projects;
(d) establish a land tenure regime for the issuance of submerged land licences to carry out offshore renewable energy projects, as well as the revenues regime associated with those licences and projects;
(e) establish a ministerial decision-making process respecting the issuance of submerged land licences and the Regulators’ exercise of certain powers or performance of certain duties;
(f) expand the application of the safety and environmental protection regime and its enforcement powers to include offshore renewable energy projects;
(g) provide that the Governor in Council may make regulations to prohibit the commencement or continuation of petroleum resource or renewable energy activities, or the issuance of interests, in respect of any portion of the offshore area that is located in an area that has been or may be identified as an area for environmental or wildlife conservation or protection;
(h) authorize negotiations for the surrender of an interest, the cancellation of an interest if negotiations fail and the granting of compensation to an interest owner for the surrender or cancellation;
(i) establish the regulatory and liability regime for abandoned facilities relating to petroleum-related works or activities or offshore renewable energy projects;
(j) expand the application of the occupational health and safety regime to offshore renewable energy projects;
(k) allow the federal or provincial governments to unilaterally fund certain expenses incurred by the Regulators as a result of specific requests made by that government;
(l) allow new methods to demonstrate the existence of significant hydrocarbon accumulations in a geological feature and limit the duration of future significant discovery licences to 25 years;
(m) provide that the Governor in Council may make regulations to regulate access to offshore infrastructure, including to enforce tolls and tariffs;
(n) establish a new transboundary hydrocarbon management regime to regulate fields or pools that straddle domestic and international administrative boundaries, enabling the implementation of the Canada-France transboundary fields agreement;
(o) remove references to the former Canadian Environmental Assessment Act, 2012 and, to align with the Impact Assessment Act , clarify the role of the Federal and Provincial Ministers and Regulators with respect to the conduct of impact assessments of designated projects as well as regional and strategic assessments; and
(p) specify that the Crown may rely on the Regulators for the purposes of consulting with the Indigenous peoples of Canada and that the Regulators may accommodate adverse impacts to existing Aboriginal and treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982 .
Finally, it makes consequential and terminological amendments to other Acts.

[Abigail Lixfeld]

We do feel that there are adequate tools within Bill C-49 and within the regulation-making powers to be able to address expected co-operation, coexistence and mitigation of effects related to projects, and that further changes to the legislation or introducing new regulation-making powers is not required at this time.

In the future, if there are new technologies that have different impacts or if the landscape changes and governments feel the accord acts do not provide the strength they need, governments absolutely have the discretion to make further changes to ensure the regime is sound.

[Abigail Lixfeld]

Thank you for the question. I don't mind providing a response.

Joint management gives us a really strong foundation to work with the provinces on finding common solutions as we move forward with implementing and regulating projects. The accord acts, which have been in place for decades, have a fair degree of flexibility, both within the instructions that are provided to the regulator to respond to the specifics of each project, and for the broad regulation-making powers.

If an issue arose that the provinces or the federal government felt was not adequately addressed in the accord acts, and if both governments felt that legislative change was required, then we would always have the opportunity to go back and make changes.

That said, both levels of government and both of the provincial governments do feel that Bill C-49 as drafted, and with the further strengthening of the subamendment that was discussed at a previous meeting, does provide the flexibility and the tools that are necessary to be able to manage our understanding of both the environment and potential impacts on the fishing sector, and to be able to introduce mitigation measures and other tools that are necessary to promote co-operation and coexistence and manage potential effects.

We also recognize, as governments, that there are a number of things that need to happen outside of legislation that are within the responsibility of government. Mr. Patzer referenced some of the testimony. Some of it has been reflected in the interim report of the regional assessment committees, around the importance of good research, good data, science, and working collectively with different stakeholders to make sure that we have a common understanding of how the fishing industry is changing as a result of climate change and how we need to be responding as technology evolves.

We do feel there are opportunities and mechanisms, and the strength of the co-operation that we have with the provinces through joint management gives us a really strong foundation to work from going forward.

[Abigail Lixfeld]

Yes, in our view, and in particular the view of the provinces, to include any language in Bill C-49 that has not been agreed to by both levels of government goes against the spirit of joint management, which is really to do everything together and to set aside what would ordinarily be unilateral decision-making in favour of common decisions.

All of the clauses and all of the provisions that are in Bill C-49 were agreed to by the provinces. Once the federal version of the bill is complete, the provinces would need to mirror the same legislation in their own legislatures. It would be quite problematic, and I believe unprecedented, for the federal statute to include provisions that are not replicated in the provincial bill, and it could create quite a degree of administrative uncertainty, where basically we would be giving the regulators competing instructions and putting them in a rather untenable place.

[Abigail Lixfeld, Senior Director, Renewable and Electrical Energy Division, Energy Systems Sector, Department of Natural Resources]

I apologize that I can't be in the room with you today.

We did discuss the previous discussion with the provinces, after the meetings on March 21, and we did reflect further on the testimony that was provided during the hearings. Both the provinces and Natural Resources Canada recognize that the principal section in Bill C-49 could be further strengthened to ensure that potential effects on fishing activities are considered during the submerged land licence issuance process.

However, we feel that the language that was adopted by the committee in that subamendment is sufficient, and the provinces were not supportive of making further amendments.

They did provide a number of supporting points as to why they felt concerned about making additional changes, including “maintaining the environmental characteristics of the offshore area”, in part because of the role and purpose of the regulator, which is of course to ensure the responsible development of offshore energy projects.

They raised some additional considerations that the term “environmental characteristics” is not well understood. It doesn't have a common definition or accepted meaning in common law, and we were not able to find any other federal legislation that uses this terminology. There were a number of concerns raised on the part of both governments and the provinces about establishing such a broad and open-ended requirement that doesn't have established tools or guidance to support the regulator in carrying out that duty. Ambiguity like that often increases the risk of challenge, creates a great degree of uncertainty for both the regulator and industry, and when we're looking to develop a new industry with offshore renewables, it is quite challenging.

That said, government does recognize the importance of the fishing sector, and of course the importance of the environment. We do feel that the provisions that are already set out in both part II and, particularly, part III of the accord acts, and in Bill C-49, which is all about regulation of specific projects, are the appropriate place to assess and consider the potential impacts on fish.

Thank you.

[The Chair, Liberal, George Chahal]

I call this meeting to order.

Welcome to meeting number 92 of the House of Commons Standing Committee on Natural Resources.

Pursuant to the order of reference of Tuesday, October 17, 2023, and the adopted motion of Wednesday, December 13, 2023, the committee is resuming consideration of Bill C-49, an act to amend the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to other acts.

Since today's meeting is taking place in a hybrid format, I would like to make a few comments for the benefit of members and witnesses.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mic, and please mute yourself when you are not speaking. For interpretation for those on Zoom, you have the choice, at the bottom of your screen, of floor, English or French. For those in the room, you can use the earpiece and select the desired channel.

Although the room is equipped with a powerful audio system, feedback events can occur. These can be extremely harmful to interpreters and can cause serious injuries. The most common cause of sound feedback is an earpiece worn too close to a microphone. We, therefore, ask all participants to exercise a high degree of caution when handling the earpieces, especially when your microphone or your neighbour's microphone is turned on. In order to prevent incidents and safeguard the hearing health of the interpreters, I invite participants to ensure that they speak into the microphone into which their headset is plugged and to avoid manipulating the earbuds by placing them on the table, away from the microphone, when they are not in use.

I remind you that all comments should be addressed through the chair.

Additionally, taking screenshots or photos of your screen is not permitted.

In accordance with our routine motion, I am informing the committee that all remote participants have completed the required connection tests in advance of the meeting. I believe one of the witnesses, Ms. McNeil, is having some technical issues, which I hope will get resolved with our technology ambassadors as we proceed with the meeting.

With us today to answer your questions, we have, from the Department of Justice, Jean-Nicolas Bustros, counsel; and also Jean-François Roman, legal counsel. From the Department of Natural Resources, we have Abigail Lixfeld, senior director, renewable and electrical energy division, energy systems sector, by video conference; Annette Tobin, director, offshore management division, fuels sector, by video conference; Lauren Knowles, deputy director; Cheryl McNeil, deputy director, by video conference; and Daniel Morin, senior legislative and policy adviser, renewable and electrical energy division.

As well, we have the legislative clerks from the House of Commons: Dancella Boyi and Émilie Thivierge.

Today we are resuming the clause-by-clause consideration of Bill C-49.

(On clause 221)

We are at clause 221.

At the last meeting, the committee agreed by unanimous consent to allow Ms. Dabrusin to move her amendment, the new G-25, which starts on page 75 of the package.

Ms. Dabrusin.

Opposition Motion—Carbon Tax Emergency Meeting

[Clifford Small, Conservative, Coast of Bays—Central—Notre Dame, NL]

Madam Speaker, I will start with the member's last question. We do not need to incentivize natural gas. Free enterprise can invest in LNG, build pipelines and send LNG to countries in the world that are burning coal, in order to get their emissions down really fast, to half of what they produce right now.

The fishing industry has grave concerns with Bill C-49, including six fish harvester groups I have been consulting with that the costly coalition did not consult with in forming the bill. They are counting on us. The FFAW in Newfoundland and Labrador worked with us to build the amendments to Bill C-49 that the member's side voted down in committee three weeks ago.

[Kody Blois, Liberal, Kings—Hants, NS]

Madam Speaker, I would like to invite the hon. member to take out a pen. I have two quick questions. I know he can handle them, and I will let him take some notes.

First, he talked about the Atlantic provinces' being part of the clean energy solution to reduce emissions, yet he stands in the way of Bill C-49, a bill that is supported by his home government in Newfoundland and Labrador, without reason. It is a bill that would actually drive really important results for energy jobs in Newfoundland and Labrador. He talked about technology, not taxes, but then voted against the bill. Can he explain his position there?

Second, can he give an indication to his constituents and the House as to whether or not he believes climate change is real and that we ought to do something to reduce emissions? How would he incentivize the technology he is talking about? Would he spend taxpayer dollars in an inefficient way to do it? How would he go about that?

[The Chair, Liberal, George Chahal]

Shall clauses 191 to 209 carry?

(Clauses 191 to 209 inclusive agreed to: yeas 10; nays 1)

Now we will proceed to part 3 of Bill C-49.

There are no amendments submitted to clauses 210 to 219. Do we have unanimous consent to group them for the vote?

[The Chair, Liberal, George Chahal]

The reason we're stopping at 209 is that clause 210 starts part 3 of the bill, so we will go to 209, and then we will shift to part 3 of Bill C-49. We'll then start again with clause 210 and onward.

Does that make sense? Does that clarify things for everybody around the table?

[Lauren Knowles]

I would say no, because they can still introduce and pass the same amendments that you see in the rest of Bill C-49. They can take the same approach to introduce, if they wish, the same amendments related to impact assessment and provide for a separate coming into force of those amendments so that we can work in lockstep together.

No, I don't see that any uncertainty on Bill C-69 will prevent the rest of Bill C-49 from proceeding, or the provincial mirror amendments, because we have an administrative approach to allow for the bill to proceed and to allow for those IAA amendments to come forward and ensure consistency without impacting the rest of the amendments in the bill.

[Jeremy Patzer, Conservative, Cypress Hills—Grasslands, SK]

Thank you, Mr. Chair.

Those same premiers have also written a letter to axe the carbon tax. We're still waiting on the government to do that, too. I would appreciate members' support for the premiers on that one, too.

The point, Mr. Chair, of why we are here.... The amendments the government is proposing are to delay the implementation of the act. They have to consult with the provinces, because they haven't done their job yet, and they have to fix the Impact Assessment Act, because it's been ruled largely unconstitutional. That's the problem.

Why not take this bill and make sure that there are no unconstitutional elements to it and that we're passing something that will withstand the test and not have to go before the courts as the previous Parliament's Bill C-69, now known as the Impact Assessment Act, has done? It had to go to the Supreme Court, where it was ruled unconstitutional.

I don't think the provinces and industry want this bill to suffer the same fate. We know they want updates to the accords. We know that and we get that. That's what we're here to do. We support that. What we don't support is passing an unconstitutional bill. That's why Conservatives are doing the work here and now, at committee, to prevent the same result for the bill we're working on here today, which is Bill C-49, an act to amend the Atlantic accord implementation acts is to prevent the same fate as that of Bill C-69.

We are trying to do the best we can now so there's certainty in the long run. I understand that this might be hard for some members to get, but that is the point of this exercise here today. It's to do our job as legislators.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Chair.

We always seem to have to start again with simple explanations.

Bill C-49 is updating the Atlantic accords. The Atlantic accords are a long-standing piece of legislation that was negotiated with Newfoundland and Labrador and with the Province of Nova Scotia. There have been attempts to undermine the Atlantic accords by the previous Conservative government. Pierre Poilievre was in that government. The attack on the Atlantic accords didn't go well.

When we get letters from the premiers of Newfoundland and Labrador and of Nova Scotia calling on the federal government to update the language of the Atlantic accords, so we can move ahead with new employment opportunities and new energy projects, our responsibility is to make sure the language is updated so it can do the job it has done. It has never been challenged as unconstitutional. It hasn't been opposed.

We keep going back to square one, because the Conservatives want to fight about Bill C-69. My concern is that the longer we delay, the more we're guaranteeing that workers in Newfoundland and Labrador and in Nova Scotia are being undermined, because the projects that are getting off the ground are going to jurisdictions where they have the certainty that legislation is actually going to be passed and not filibustered.

Bill C-49 is constitutional. It has been constitutional. It has never been opposed. I would hope that we can get this done so we can move on to other pressing matters.

[Shannon Stubbs, Conservative, Lakeland, AB]

Thanks, Chair.

If it helps, I would suggest, through you, Chair, that the parliamentary secretary for natural resources could perhaps enlighten this committee and all Canadians, including senators, investors, provinces, municipalities and indigenous communities, who have all challenged Bill C-69, including every single premier and territorial leader who either opposed it outright or called for major overhauls.

Moving forward, of course, the Supreme Court decision that less than 6% of the bill is constitutional and the vast majority is largely unconstitutional was made in December. Many of those clauses explicitly declared unconstitutional by the Supreme Court are in Bill C-49. If the parliamentary secretary to the minister is suggesting that these senior qualified experts in the public service, who are trying to give the elected members of the government the rationale to cover for their own mistakes.... Perhaps she as the parliamentary secretary can actually give the answers that all of us need to know, about when the government will be bringing forward new legislation or amendments. I don't know how that works for a law that's already a law and no longer an act. It has been a law unconstitutionally for half a decade already under these NDP-Liberals. I think it would behoove her to answer, for clarity for the elected members here and all Canadians, when those changes would be happening.

I'll reinforce the point my colleagues are making, which is that it is ridiculous that we are being asked to pass this legislation, brought forward by the NDP-Liberals, when we made the proposal in December that they could take the time to get Bill C-69 fixed first. Then we would move to Bill C-49 and Bill C-50 after that. However, here we are in April and the government is saying they're still promising legislation. That hasn't happened.

The point my colleagues are making is that, obviously, if this bill gets passed with those sections unresolved, it will come into force with a lack of certainty and clarity about its constitutionality and legality. It will automatically invite legal challenges by the same groups, or by other groups involved in the challenges to Bill C-69, all the way up to the Supreme Court of Canada.

I give kudos to the public servants for doing their jobs. This isn't their mess to fix, but it certainly is the minister's. Since the parliamentary secretary is here, and she is saying that the officials shouldn't answer any more of these questions, perhaps she can.

Thanks, Chair.

[Ted Falk, Conservative, Provencher, MB]

Thank you.

I have the same question swirling around in my head: Why are we moving forward on this when we're referencing a piece of legislation that, in fact, may not even exist anymore because it's been ruled unconstitutional? That's what we're being asked to do here. It doesn't matter whether other jurisdictions are asking us to do it—if it's unconstitutional, it's unconstitutional. I just don't understand why everybody seems to be okay with Bill C-49 referencing Bill C-69, which we know has been deemed to be largely unconstitutional. It doesn't make any sense why we wouldn't fix that first, before we move ahead, or delete the references—which is what this amendment is doing—to something the Supreme Court of Canada has decided is unconstitutional.

Why would we reference a document that's no good?

[Jean-Nicolas Bustros]

I'm sorry about that.

The intent of these provisions is to coordinate and, as mentioned before, to make sure that when the Impact Assessment Act amendments come into force, they work with what is found in Bill C-49.

When Parliament adopts the provision, the expectation is that it will be constitutional, but the only intent in this case is for both pieces of legislation to work together. It's not something that is related to the Impact Assessment Act, in this case, in this bill.