This bill was last introduced in the 41st Parliament, 2nd Session, which ended in August 2015.
Greg Rickford Conservative
This bill has received Royal Assent and is now law.
This is from the published bill.
This enactment amends the National Energy Board Act and the Canada Oil and Gas Operations Act in order to strengthen the safety and security of pipelines regulated by those Acts.
More specifically, the enactment, among other things,
(a) reinforces the “polluter pays” principle;
(b) confirms that the liability of companies that operate pipelines is unlimited if an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline that they operate is the result of their fault or negligence;
(c) establishes the limit of liability without proof of fault or negligence at no less than one billion dollars for companies that operate pipelines that have the capacity to transport at least 250,000 barrels of oil per day and at an amount prescribed by regulation for companies that operate any other pipelines;
(d) requires that companies that operate pipelines maintain the financial resources necessary to pay the amount of the limit of liability that applies to them;
(e) authorizes the National Energy Board to order any company that operates a pipeline from which an unintended or uncontrolled release of oil, gas or any other commodity occurs to reimburse any government institution the costs it incurred in taking any action or measure in relation to that release;
(f) requires that companies that operate pipelines remain responsible for their abandoned pipelines;
(g) authorizes the National Energy Board to order companies that operate pipelines to maintain funds to pay for the abandonment of their pipelines or for their abandoned pipelines;
(h) allows the Governor in Council to authorize the National Energy Board to take, in certain circumstances, any action or measure that the National Energy Board considers necessary in relation to an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline;
(i) allows the Governor in Council to establish, in certain circumstances, a pipeline claims tribunal whose purpose is to examine and adjudicate the claims for compensation for compensable damage caused by an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline;
(j) authorizes, in certain circumstances, that funds may be paid out of the Consolidated Revenue Fund to pay the costs of taking the actions or measures that the National Energy Board considers necessary in relation to an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline, to pay the costs related to establishing a pipeline claims tribunal and to pay any amount of compensation that such a tribunal awards; and
(k) authorizes the National Energy Board to recover those funds from the company that operates the pipeline from which the release occurred and from companies that operate pipelines that transport a commodity of the same class as the one that was released.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
Lois Brown ConservativeParliamentary Secretary to the Minister of International Development
Mr. Speaker, my colleague spoke a bit in her speech about the opportunities that this legislation would provide for the people of our aboriginal communities. I wonder if she would like to expand on that just a little more for the House.
Kelly Block Conservative Saskatoon—Rosetown—Biggar, SK
Mr. Speaker, as I have said, our government's priority is to continue to create jobs, grow the economy and create long-term prosperity for all Canadians, which includes our first nations peoples. First nations have made and will continue to make important contributions as a full partner in the development of our natural resources. Our plan would provide training for aboriginal communities specifically, for example, when it comes to monitoring and response. As I mentioned, we asked to hear from aboriginal communities on this very important piece of legislation and there has been widespread support.
Alain Giguère NDP Marc-Aurèle-Fortin, QC
Mr. Speaker, I would like to point out to my distinguished colleague that one of the serious problems in Canada and the world is that the companies doing business in Canada are the same companies that are responsible for the Exxon Valdez spill and for destroying a river in the United States.
When people who have been consistently polluting other places say that they will be careful not to cause pollution in Canada, there is a credibility problem. It is all a matter of credibility and we do not trust those companies.
Moreover, safe transportation is all well and good, but there is also the matter of jobs. If I, Mr. Giguère, was told that 15,000 jobs were going to be created in my province's refineries, I would be on board with that. However, what we are being told is that we are going to have to assume 100% of the transportation risk, that there will be no contingency fund and that no jobs will be created. In Quebec, only 15 jobs were created to build the pipeline across the province. We are assuming all of the risks but seeing very little of the profit.
As a result, the government does not have any credibility. I am asking it to do something other than pass a law that imposes a 250,000-barrel limit on companies and simply requires them to be careful. That is not enough. A contingency fund must be created.
I am therefore asking my colleague to tell us something that will really assuage Canadians' fears.
The Deputy Speaker Joe Comartin
Before I recognize the parliamentary secretary, I must inform the member that it is not appropriate to use proper names, as he just did, when addressing the House.
The hon. parliamentary secretary.
Kelly Block Conservative Saskatoon—Rosetown—Biggar, SK
Mr. Speaker, perhaps the best way to answer that question is to go back and restate that the absolute or no-fault liability regime created under this bill would be one of the most robust and comprehensive in the world. All types of damage to the environment resulting from an oil spill would be covered in this legislation.
Three broad categories could be claimed. These are claims for loss or damage incurred by any person as a result of a spill; costs and expenses incurred by the federal government, provincial government, aboriginal governing body, or any other person taking action in response to a spill; and claims by the federal or provincial governments for the loss of what is referred to as the non-use value relating to a public resource that is damaged by a spill.
I did speak to what we mean by “non-use value”. This means that the federal government or provincial government can bring a claim for damage to environmental assets that are valuable to Canadians and future generations.
Guy Caron NDP Rimouski-Neigette—Témiscouata—Les Basques, QC
Mr. Speaker, in my capacity as the critic for natural resources, I am pleased to rise in the House at third reading to debate Bill C-46.
This bill moved to report stage very quickly, because clearly, the parties did not really have a chance to properly present their case, especially the independent members in the House.
At the Standing Committee on Natural Resources, the Conservatives imposed a motion similar to the ones it imposed on all committees, since it has a majority on all committees of the House of Commons, whereby, and I am paraphrasing, when the committee clerk receives an order of reference from the House in relation to a bill, the clerk must write to each member who is not a member of a caucus represented on the committee to invite the member to send a letter to the chair of the committee, in both official languages, stating any proposed amendments to the bill subject to the order of reference. During the clause-by-clause, the chair of the committee will allow a member who proposed an amendment to make brief comments in support of it, although the member cannot join in the debate or vote.
That is how the committees always operate, and the Standing Committee on Natural Resources is no exception.
We essentially believe that these manoeuvres violate the rights of independent parliamentarians or members who belong to a parliamentary group and who are nonetheless elected just like any other member.
The big book of procedure tells us that it is the House, and only the House, that designates members and associate members of these committees as well as the members that represent the House on joint committees.
The Chair has already established that that is a fundamental right of the House. As for the committees, they have no power in that regard, especially since the rules specifically state that an MP who is not a committee member may not vote or move motions.
Report stage was usually the opportunity for these members to have their amendments heard, to debate them and to participate in the vote. Instead, practically everything is now managed, debated and voted in committee, sometimes even in camera.
This is a very important change in the functioning of the House and it greatly affects the rights of members and their ability to properly carry out their duties of representing their constituents and holding the government to account.
However, despite everything, I must highlight the work done by my colleague, the member for Saanich—Gulf Islands, who had two amendments passed despite this unfair and undemocratic government tactic.
Bill C-46 establishes a liability regime for federally regulated pipelines in Canada, and although this regime leaves many questions unanswered, the existing legislation does not provide for much of a regime.
The NDP proposed some 20 amendments at report stage, many of which were virtually the same as those proposed by my colleague from Saanich—Gulf Islands. That is why I am pleased that these requests were heard. We must understand that she was not able to propose her amendments at report stage. She was asked to present her amendments in committee, which is what generally happens. She came to do so and she got just one minute for each of her amendments.
This is a systematic problem at committee stage. Committees should be a place for debate, so that we can identify the strengths and, especially, the flaws of each bill. However, this Conservative government's method is something completely new to Parliament, and it is undermining our ability to properly debate bills.
In the case of the amendments that passed, the government tried to make first nations members believe that the addition of a definition about them to the bill was a show of good faith and openness on its part.
Like other levels of government, aboriginal governing bodies will be able to sue companies connected to pipelines for recovery of reasonable costs incurred in managing a spill on their land.
I think this is a major collective victory. It shows not only that aboriginals are full-fledged nations, but also that there is a will to treat them as such. As I said, the parties were on the same wavelength and proposed many similar amendments that targeted the same flaws in Bill C-46.
In short, Bill C-46 is a first step toward integrating a real polluter-pays principle into federal pipeline regulations.
However, entrenching that in law is not the end of it. We also have to make sure that the provisions of the law respect its principles.
The NDP voted in favour of the principle underlying Bill C-46 because that step forward was better than the status quo.
I must nevertheless point out that at least one witness gave very engaging testimony during the committee's study of Bill C-46. Ian Miron of Ecojustice described this bill as a step forward, just as we have done. He also said that it was more of a “polluter might pay” principle than a polluter pays principle. The reason is that Bill C-46 is highly discretionary. It makes a number of tools available to the National Energy Board and the government, but they have complete discretion when it comes to using those tools. The lack of absolute regulations, if I can put it that way, means that this legislation does not fully respect the polluter pays principle. It means that the principle will apply if the National Energy Board and the government want it to.
These regulations and this liability regime will now be governed by the National Energy Board, which has an especially important role to play given that Canadians' trust and their sense of safety with respect to infrastructure and the regulations in place will depend on how well the board fulfills its mandate.
The report published in 2013 following a comprehensive study by the Standing Senate Committee on Energy, the Environment and Natural Resources clearly states that those two concepts go hand in hand:
If an accident occurs, there must be trust that the “polluter pays” principle, a principle applied to all modes of transport, is backed by concrete action. Social license is earned when citizens have trust in emergency and spill response capabilities, based on clear plans for well-organized recovery and rehabilitation of the environment, as well as a means for compensating for damages.
Even the president and CEO of the Canadian Energy Pipeline Association at the time, Brenda Kenny, suggested in the study that, “it is not enough in today’s climate to obtain a regulatory license or permit in order to proceed with energy projects”.
This illustrates how important it is for businesses and the industry to have public confidence. This was corroborated by the testimony in committee of a representative of Canada's Building Trades Unions, who said he agrees with the polluter pays principle, which indicates to us that the unions and workers truly understand that environmental protection and robust protection, prevention and accountability standards are ironically the things that are going to help them keep their jobs.
For a culture of safety to take hold, there needs to be interaction between common values and beliefs on one hand, and the structures and oversight mechanisms of an organization on the other hand, with the aim of producing standards of behaviour. Unfortunately, we are way off the mark. With its bills and regulations, the government has done nothing but cause the public to lose confidence not only in the industry, but also in the key regulators. If the oil companies want public approval for the pipelines, then Canadians need assurance that these projects are sustainable and that approval processes are open, rigorous and fair. That is clearly still not the case, and this bill will not change much, unfortunately.
In fact, only 27% of Canadians believe that the Government of Canada can respond effectively to an oil spill at sea, and only 32% share the same view for spills on land. The English Bay oil spill in Vancouver in early April should serve as an example of the government's readiness to respond. Civil society groups and environmentalists have been saying for years that Canada is not prepared for a major oil spill. The 2010 Kalamazoo spill in Michigan was a turning point for the oil sector. New standards were established and discoveries were made about how oil from the oil sands behaves, which requires new standards for research, prevention and response.
The problem is that instead of working with the utmost transparency, the board encourages corporations to be secretive. According to the 2013 Senate report:
By regulation, every pipeline company is required to submit Emergency Response Plans (ERPs) on a facility-by-facility basis and the ERPs must be approved by the NEB. These plans require companies to assess the risk of a spill and outline the details of a response. They must be up-to-date with corresponding emergency manuals and must be reviewed regularly. On June 26, 2013, the federal government announced that it would require ERPs to be more accessible to the...
The Acting Speaker Barry Devolin
Order.
The member for Rimouski-Neigette—Témiscouata—Les Basques will have nine minutes when the House resumes consideration of this bill.
It being 5:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.
The House resumed from April 30 consideration of the motion that Bill C-46, An Act to amend the National Energy Board Act and the Canada Oil and Gas Operations Act, be read the third time and passed.
Geoff Regan Liberal Halifax West, NS
Mr. Speaker, I am happy to have another chance to speak on the slightly amended version of Bill C-46, the pipeline safety act and of course, this is legislation that would amend the National Energy Board Act and the Canada Oil and Gas Operations Act, with the idea of strengthening the safety and security of federally regulated pipelines in Canada.
In fact, this legislation is long overdue and represents some progress. The Liberal Party recognizes that pipelines are a critical part of our energy infrastructure. We know that Canada must always strive to have the safest pipelines in the world. In fact, we have many thousands of kilometres of pipelines within Canada transporting both oil and gas and sometimes other products, but mainly those two, and they form an important part of our economy. People use those products every day in a variety of ways, so those pipelines play an important role and it is vitally important that they be safe.
However, we do not believe that we have to make a choice between protecting our environment and growing our economy. We have to do both. That is an important responsibility. Across this country, Liberals support projects that offer responsible and sustainable ways of getting our resources to market, while at the same time respecting indigenous rights, protecting our natural environment and earning the trust of local communities.
In fact, approximately 1.4 billion barrels of oil cross provincial and international borders every year. It is important that legislation like Bill C-46 clarifies the audit and inspection powers of the National Energy Board which regulates federal pipelines.
I should point out that many of the pipelines in Canada are not federally regulated because they are within the boundaries of a province, but they do not cross boundaries of a province or international boundaries between Canada and the U.S.
As we heard recently at the Standing Committee on Natural Resources, Bill C-46 implements a number of measures under the headings of prevention, preparedness and response, and also liability and compensation.
Prevention, of course, is critical as we must make every effort to ensure that a spill does not occur in the first place, obviously. The bill includes some sentencing provisions for environmental damages as well as additional audit and inspection powers for the National Energy Board. Of course, this raises the question of whether the NEB will do the job it is supposed to do. That would be a concern for members going forward as we watch whether the powers it is given in the bill are utilized properly.
Hopefully, the government will ensure the the NEB has the necessary resources to carry out these audits and inspections because a number of stakeholders said they were concerned about it. I am concerned about it after the recent budget. There is a question whether it has enough funding.
In fact, the NEB indicated that funding for several programs related to pipeline safety will be sunsetting in the next few years. It is up to the government to bring forward sufficient funds for the NEB to do the job of protecting Canadians and ensuring that these pipelines are operated in a safe manner. I think that needs to change.
In the event of a spill, Canadians need to have confidence that pipeline companies and the National Energy Board will respond in an appropriate manner. Bill C-46 would require companies operating pipelines to hold sufficient financial resources to cover any potential costs associated with a spill. Companies would also be required to hold a minimum level of accessible financial resources to ensure immediate response to a spill happening and that they have the financial capacity to do that. That is an important measure and I certainly support that.
Also, in exceptional circumstances, where a company is unable or unwilling to act, the NEB would have the authorization to take control of a spill response and it would have the authority to compel reimbursement of costs associated with a spill because if the NEB is incurring costs at the expense of the taxpayer, it should be reimbursed by whoever is responsible for the pipeline in general.
It is the company operating it that is going to be liable and that is why under this legislation absolute liability is provided for. In other words, whether or not negligence was provided, if a company is the owner-operator of that pipeline, it will be responsible for it. That is very important.
Finally, with respect to liability and compensation, the bill invokes the polluter pays principle with the goal of holding major pipeline companies liable for costs and any actual losses or environmental damages resulting from a spill. It includes a set of new measures which provide for no-fault or absolute liability set at a minimum of $1 billion for major oil companies, and the legislation contains the number of provisions relating to the abandonment of pipelines.
Bill C-46 seeks guidance from the National Energy Board on the application of the best available technologies for pipeline construction and operations. It also sets out how government will be required to work with aboriginal communities and industry to develop a strategy to better integrate aboriginal peoples into pipeline safety, including planning, monitoring, incident response and related employment and business opportunities.
While I noted earlier that Bill C-46 is a step in the right direction, that does not mean that no concerns were expressed about this particular bill. We have seen concerns raised over the potential impact of leaving many of the proposed changes in Bill C-46 to the discretion of cabinet and the National Energy Board. The Union des producteurs agricoles raised several points in a written submission, including their concern about the definition of “ground disturbance” in the legislation and how this will impact the cultivation of crops like alfalfa. They also expressed concern about whether the timeframe for claims should be tied to the time when a leak is discovered or the time when it occurred. Obviously, I believe that it should be tied to the time when the leak is discovered.
Ecojustice lawyer Ian Miron testified regarding the shortcomings in the legislation. He called for more guidance around the assessment and calculation of damages for the loss of non-use value in relation to public resources. Mr. Miron also suggested that, as drafted, the bill is best described as polluter might pay as opposed to polluter pays, as the government is suggesting.
Mr. Martin Olszynski of the law faculty at the University of Calgary offered suggestions to strengthen the wording of the bill with regard to environmental damages. Mr. Olszynski said that the federal cabinet should be required to make regulations setting out a process for environmental damages assessment within a prescribed timeframe.
Unfortunately, the Conservatives failed to put forward any amendments during the clause-by-clause consideration of Bill C-46 and they killed all but two of the amendments tabled by opposition members.
One of the amendments, which was adopted, will mean that an aboriginal governing body would be able to be reimbursed for expenses they may incur in responding to a spill. I think that is a good amendment.
Without that amendment, the category of entities that could get reimbursed for reasonably incurring expenses in relation to a spill, in other words for a cleanup, were limited to “Her Majesty in right of Canada, or a province or any other person”.
That would not include an aboriginal first nation and in my view it would also not include a municipality either. That is why there was, in fact, another amendment proposed to add the word “municipality” to that list, but I suppose the government side was not authorized. It did not have the green light, we might say, to say yes to that change, which would have been harmless and a good one.
The question of whether or not the province is authorized or the municipality, since municipalities are creations of provinces, is not clear at all. It might have been a very good clarification to have in the bill. Unfortunately, I am afraid the Conservatives did not support that.
The second amendment deals with a section of the bill which said that the NEB may recover funds to compensate those affected by a spill. In this case, the word “may” was changed to “shall”, another good change. At least there was some minimal accommodation and I suspect members opposite on the Conservative side would incorrectly and falsely claim that they were completely flexible on our amendments.
I know that the Minister of Natural Resources is fond of pointing out that between 2008 and 2013 more than 99.999% of oil transported in federally regulated pipelines was moved safely. That is a great record. Our pipeline companies deserve recognition for this achievement. However, we also need to look to the future. We need to take every step possible to continue to prevent spills, to put in place the proper measures to efficiently and effectively clean up spills, and to assign appropriate liability when spills do occur.
Canada must have the safest pipelines in the world. We need to ensure that this pipeline safety act is designed to achieve that goal.
The NEB has been given increased regulatory control over 73,000 kilometres of pipelines that transport more than $100-billion worth of oil, gas, and petroleum products across Canada annually. That is a lot of pipelines and a lot of value to our economy and also a lot of concern about the impact that would have on our environment if it was not dealt with properly.
Bill C-46 would build on previous moves, giving the NEB the authority to increase the number of pipeline inspections and doubling the number of yearly safety audits.
The NEB has also been asked to provide guidance on the best available technologies for pipeline construction and operations. Obviously, that is why we are hoping that the NEB will be given the resources to do that job and that it will do it properly. We will have to keep an eye on that. That is, I think, one of the important responsibilities of this chamber. It is to keep an eye on that and watch the statistics as time goes on.
We have seen measures that set out how the government is supposed to work with aboriginal communities and individuals to develop a strategy to better integrate aboriginal peoples and pipeline safety operations, including in planning, monitoring, incident response, and related employment and business opportunities.
Clearly, these and other measures in Bill C-46 signify a much-needed overhaul of the liability regime for federally regulated pipelines. The no-fault liability, the additional authorities given to the NEB, and the measures for abandoned pipelines are welcome, and the Liberal Party will therefore support the legislation.
Joan Crockatt Conservative Calgary Centre, AB
Mr. Speaker, I want to thank my hon. colleague for his support for the legislation.
One of the things he raised is funding for the National Energy Board. I am sure he is aware that in the budget, the National Energy Board would receive many millions of dollars, $80 million, in fact, in increased funding.
I wonder if he would talk about that funding and what the money would be used for.
Geoff Regan Liberal Halifax West, NS
Mr. Speaker, I spoke in my comments about the nature of the new responsibilities the NEB would have. We will have to wait and see, as time goes on, whether sufficient resources are there. I am not sure about that. We will have to wait and see.
Also, it is important to see how, in actuality, the NEB would enforce the rules and the powers it would be given. My hope is that it would exercise those controls in a responsible way, but as I said, it is important for this House to keep an eye on that.
Chris Charlton NDP Hamilton Mountain, ON
Mr. Speaker, I worked closely with the member from the Liberal Party on the bill as it was making its way through committee, so we heard many of the same witnesses, obviously, and perhaps drew some of the same conclusions.
I completely agree with him that a bill that purports to implement the polluter pay principle actually falls far short of doing that when so many of the provisions in the bill would actually be left up to the discretion of either the National Energy Board or cabinet.
I suspect that the solution to fixing the problem of the discretionary powers of the cabinet and the lack of confidence Canadians have in those powers we will need to resolve in the next election, and I look forward to the NDP forming the government after October 19.
However, I want to ask the member questions about the discretionary powers of the NEB. Canadians do not have very much confidence in the National Energy Board right now, either. I wonder if the member would talk about what amendments he thinks it is necessary to make to the National Energy Board, whether he believes it ought to be a complete overhaul of the NEB, and what specific amendments he would support when it comes to the future of the National Energy Board.
Geoff Regan Liberal Halifax West, NS
Mr. Speaker, it is nice to have hon. friends asking questions. They are members I sit with on the committee, and I enjoy working with them there.
My colleague talked about the issue of confidence, which I think is so important. In fact, one of the things I think we have seen eroded badly over the past decade under the Conservative government is the confidence Canadians have in environmental regulation generally.
The first thing that has to change is the attitude of government. I look forward to the election changing that, and of course, I heard my hon. colleague. My expectations are a little different from hers. I am looking forward to a Liberal victory in the election in the fall. We can leave that to the electors to decide. We all have faith in democracy and are obviously willing to accept its results. I hope we will see a new government, with the Liberal Party, of course, perhaps with support from other parties on measures like this, the kinds of measures that would create more confidence among Canadians about environmental regulation.
That is where it starts. We can certainly look at the question of what amendments are needed in terms of the power of the NEB and its discretionary powers. I think we should take some of those powers out of cabinet.
What we need is a National Energy Board that has the respect of Canadians and the confidence of Canadians, but again, that depends on the kinds of signals that are sent from government. We do not need government signals suggesting that people who are concerned about environmental matters are radicals or renegades, the kind of signals we unfortunately sometimes get from the government.
Ted Hsu Liberal Kingston and the Islands, ON
Mr. Speaker, I was wondering if I could ask my hon. colleague to perhaps look past several elections rather than to the next election. All too often we have the government passing legislation establishing a penalty for this or that and feeling that it has accomplished something and can forget about the problem for a while.
What kinds of things does my hon. colleague see five, 10, and 20 years down the line in terms of making resources available so that regulations are enforced and there are enough people to conduct inspections, for example, or look out for the unexpected things that may happen in the future?
Geoff Regan Liberal Halifax West, NS
Mr. Speaker, it is not that uncommon that questions I get from my own side are sometimes, in some ways, more challenging.
That is a challenging question, because it asks me to go quite a distance ahead and to imagine the unexpected things that may happen in the future. That is challenging.
I think we will see a shift in our energy sector in Canada and in the way we use energy. Certainly we have seen a considerable effort to reduce energy use to be more efficient in the way we do things in our households and workplaces. That will continue.
I think we will see an increase in the use of renewable energy in a whole variety of ways. That is going to be an interesting process.
We saw the news last week about a new power wall that a major company in the U.S., of course, has introduced. It is a very large lithium battery for the home. If people have, for instance, photovoltaic solar panels on the roof, they can actually store the power that comes from those when the sun is shining and have it available when it is not. In some locations, power can actually be drawn down at night, for example, when power is cheap, and then used in the day.
We are going to see a variety of changes. I do not think most of us are probably all that worried about the safety impact, although it is something that has to be watched. For any new technology we have to examine the safety impact.
When we talk about pipelines, it is hard to project today how important they will be in our lives in 30 or 40 years. I think we are going to see them continue to be used for a few decades yet, but there may be new uses. There may be new infrastructure for which we need to have regulations to make sure that they are built and operated in a way that is safe for Canadians and safe for our environment.