Bill C-69 (Historical)

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

Part 1 enacts the Impact Assessment Act and repeals the Canadian Environmental Assessment Act, 2012. Among other things, the Impact Assessment Act
(a) names the Impact Assessment Agency of Canada as the authority responsible for impact assessments;
(b) provides for a process for assessing the environmental, health, social and economic effects of designated projects with a view to preventing certain adverse effects and fostering sustainability;
(c) prohibits proponents, subject to certain conditions, from carrying out a designated project if the designated project is likely to cause certain environmental, health, social or economic effects, unless the Minister of the Environment or Governor in Council determines that those effects are in the public interest, taking into account the impacts on the rights of the Indigenous peoples of Canada, all effects that may be caused by the carrying out of the project, the extent to which the project contributes to sustainability and other factors;
(d) establishes a planning phase for a possible impact assessment of a designated project, which includes requirements to cooperate with and consult certain persons and entities and requirements with respect to public participation;
(e) authorizes the Minister to refer an impact assessment of a designated project to a review panel if he or she considers it in the public interest to do so, and requires that an impact assessment be referred to a review panel if the designated project includes physical activities that are regulated under the Nuclear Safety and Control Act, the Canadian Energy Regulator Act, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act;
(f) establishes time limits with respect to the planning phase, to impact assessments and to certain decisions, in order to ensure that impact assessments are conducted in a timely manner;
(g) provides for public participation and for funding to allow the public to participate in a meaningful manner;
(h) sets out the factors to be taken into account in conducting an impact assessment, including the impacts on the rights of the Indigenous peoples of Canada;
(i) provides for cooperation with certain jurisdictions, including Indigenous governing bodies, through the delegation of any part of an impact assessment, the joint establishment of a review panel or the substitution of another process for the impact assessment;
(j) provides for transparency in decision-making by requiring that the scientific and other information taken into account in an impact assessment, as well as the reasons for decisions, be made available to the public through a registry that is accessible via the Internet;
(k) provides that the Minister may set conditions, including with respect to mitigation measures, that must be implemented by the proponent of a designated project;
(l) provides for the assessment of cumulative effects of existing or future activities in a specific region through regional assessments and of federal policies, plans and programs, and of issues, that are relevant to the impact assessment of designated projects through strategic assessments; and
(m) sets out requirements for an assessment of environmental effects of non-designated projects that are on federal lands or that are to be carried out outside Canada.
Part 2 enacts the Canadian Energy Regulator Act, which establishes the Canadian Energy Regulator and sets out its composition, mandate and powers. The role of the Regulator is to regulate the exploitation, development and transportation of energy within Parliament’s jurisdiction.
The Canadian Energy Regulator Act, among other things,
(a) provides for the establishment of a Commission that is responsible for the adjudicative functions of the Regulator;
(b) ensures the safety and security of persons, energy facilities and abandoned facilities and the protection of property and the environment;
(c) provides for the regulation of pipelines, abandoned pipelines, and traffic, tolls and tariffs relating to the transmission of oil or gas through pipelines;
(d) provides for the regulation of international power lines and certain interprovincial power lines;
(e) provides for the regulation of renewable energy projects and power lines in Canada’s offshore;
(f) provides for the regulation of access to lands;
(g) provides for the regulation of the exportation of oil, gas and electricity and the interprovincial oil and gas trade; and
(h) sets out the process the Commission must follow before making, amending or revoking a declaration of a significant discovery or a commercial discovery under the Canada Oil and Gas Operations Act and the process for appealing a decision made by the Chief Conservation Officer or the Chief Safety Officer under that Act.
Part 2 also repeals the National Energy Board Act.
Part 3 amends the Navigation Protection Act to, among other things,
(a) rename it the Canadian Navigable Waters Act;
(b) provide a comprehensive definition of navigable water;
(c) require that, when making a decision under that Act, the Minister must consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada;
(d) require that an owner apply for an approval for a major work in any navigable water if the work may interfere with navigation;
(e)  set out the factors that the Minister must consider when deciding whether to issue an approval;
(f) provide a process for addressing navigation-related concerns when an owner proposes to carry out a work in navigable waters that are not listed in the schedule;
(g) provide the Minister with powers to address obstructions in any navigable water;
(h) amend the criteria and process for adding a reference to a navigable water to the schedule;
(i) require that the Minister establish a registry; and
(j) provide for new measures for the administration and enforcement of the Act.
Part 4 makes consequential amendments to Acts of Parliament and regulations.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

It's in the same section that was just referenced by my colleague, under the “Apportionment of work”. BIll C-69 says that the CEO is responsible for apportioning among designated officers certain amounts of work. I would insert, following that, in proposed subsection 55.1(1), that “the Commission must consider the public interest and, in particular,” and then that's broken down into proposed paragraphs that would deal with issues of the implementation of mitigation measures, the extent to which the effects of the designated project help or hinder our climate objectives, considerations of the public interest, considerations of sustainability, as well as our obligations and international commitments, particularly for climate.

That is amendment PV-101. Thank you, Madam Chair.

[Ed Fast, Conservative, Abbotsford, BC]

This is another amendment proposed by my colleague, Ms. Stubbs from Lakeland. It is that Bill C-69 and clause 10 be amended by replacing line 8 on page 112 with the following words:

appropriate to do so and shall make public its reasons for holding the hearing.

The purpose of the amendment is that it requires the commission to make public any reasons for holding a hearing in respect of any other matter that the commission considers appropriate to hold a hearing for. As Bill C-69 is currently written, the commission may hold public hearing in respect of any other matter that the commission considers appropriate.

The section, as currently worded, is vague and gives the commission the power to hold a public hearing on virtually anything. There should be a requirement for the commission to make public their reasons for holding a hearing in respect of any other matter, as is defined in this act.

[Ed Fast, Conservative, Abbotsford, BC]

CPC-11 is an amendment brought forward by my colleague, Ms. Stubbs from Lakeland. She's proposing that the bill be amended in clause 10 by replacing line 30 on page 108 with the following:

must give instructions to the commissioners authorized to

My rationale is that it is intended to clarify that the lead commissioner must give instructions to the commission to ensure that an application before the commission is dealt with in a timely manner.

As Bill C-69 is currently written, the lead commissioner “may” give instructions to the commission to ensure that an application before the commission is dealt with in a timely manner. You may recall that when this legislation was first tabled, the minister praised it as being a much more efficient way of moving forward. She praised the transparency—or what she felt was transparency—in this legislation.

If we want to make sure that there's timeliness, which is another thing she committed to, the lead commissioner must be compelled to give instructions to the commission to ensure that applications are dealt with in a timely manner.

In the interest of giving proponents certainty regarding timelines, the commission should always be operating with timeliness and efficiency in mind, as promised by the government. It should not be overlooked, as this plays a part in how investors view Canada.

I would dispense with a quote from the minister that actually reflects exactly what I just said she articulated when the legislation was tabled.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Chair, this relates to issues around the consultation with indigenous peoples. In the past, what we used to call—and I guess we still call it this until this act receives royal assent—the National Energy Board was found under various court decisions to have had significant lapses in its consultative process. Some examples are the Supreme Court decisions on the Clyde River case and on the Chippewas of the Thames First Nation case dealing with Enbridge. Of course, there is also the Enbridge decision in the Federal Court of Appeal related to the pipeline that was to have a terminal at Kitimat.

This amendment would reinforce the consideration of indigenous rights as a guiding principle throughout this proposed act, which is currently part 2 of Bill C-69, but will eventually, of course, be the Canadian energy regulator act. It's very consistent with the Truth and Reconciliation Commission's action item 92, which is to ensure that UNDRIP is part of the reconciliation framework.

It's in that spirit that I submit PV-87.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Chair, I was required to be here due to a motion passed by this committee. Many members may have forgotten about that. Identical motions were passed in every committee. I had a moment to explain to the chair that, whereas in the normal parliamentary rules I would have the right to present amendments that were substantive at report stage, this committee passed a motion which says I can't do that because I have an opportunity to present the motions and amendments at clause-by-clause consideration in every committee.

While report stage can only happen once a day for any particular bill, clause-by-clause can happen simultaneously in many places. Today, I find myself called before the committees to deal with Bill C-68 in the fisheries committee, Bill C-69 in the environment committee, as well as Bill C-74 in the finance committee, all at the same time, all in the same day, so I have to apologize that I've been in and out.

I need to plead with individual members to consider that if you're asked to pass a similar motion—for those of us who are re-elected in the next election—this motion imposes an extremely arduous and unfair process on members of smaller parties. While I would have liked to speak to this to support the evidence of the Canadian Labour Congress that the way the bill is functioning will unfairly reduce the Canadian worker benefit entitlement, I accept the chair's ruling that it's out of order for the reasons the chair has stated.

I did want to put on the record that I may not be here for one of my subsequent amendments because of the pressures of clause-by-clause in a simultaneous committee.

I hope this process of putting members through this through the motions passed by every committee will be reconsidered, because it's extremely unfair.

Thank you.

[Ed Fast, Conservative, Abbotsford, BC]

This is an amendment to effect change provisions dealing with projects regulated by the Canadian Nuclear Safety Commission, specifically to permit designated projects related to uranium mines and mills to access the agency assessment provisions of the act, including the suite of provisions related to co-operation with provinces and indigenous governing bodies.

This amendment does this by adding an exception to the decision statement, considered to be part of licence under the Nuclear Safety and Control Act section of the decision statement portion of the act, for uranium mines and mills from the power of the minister to designate conditions in relation to a project that includes activities regulated under the Nuclear Safety and Control Act through a decision statement.

As Bill C-69 is currently written, in the proposed “Limitation” subsection of the agreement to establish a review panel, the minister must not enter into an agreement with any jurisdiction that has powers and duties in relation to environmentally assessing a designated project if that designated project includes physical activities that are regulated under the Nuclear Safety and Control Act or the Canadian energy regulator act.

This amendment makes a language change to clarify that in the proposed “Obligation to refer” section of the act, the minister must refer physical activities at a nuclear facility that are regulated under the act or the Canadian energy regulator act to a review panel. It also adds an exception to the proposed “Obligation to refer” section of the act, stating that physical activities at a uranium mine or mill are not included in the minister’s obligation to refer physical activities at a nuclear facility that are regulated under the Nuclear Safety and Control Act or the Canadian energy regulator act to a review panel.

Finally, the rationale is that uranium mines and mills, like all mines and mills, are subject to provincial regulatory and permitting frameworks, but they’re also regulated by the Canadian Nuclear Safety Commission. Bill C-69 would preclude co-operation and preclude agency assessment for all designated projects that are regulated by the CNSC, treating all such projects as exclusively in federal jurisdiction. There is no justification for this differential treatment as the complexity and impacts of uranium mines and mills are not in any different category from those of other mines and mills, and co-operative approaches are just as valuable.

[William Amos, Liberal, Pontiac, QC]

I would be pleased to speak to the two proposed amendments.

Having worked for a decade with the Centre québécois du droit de l'environnement and as an accredited environmental lawyer in Quebec for many years, I am very familiar with the BAPE system in Quebec. This process is not perfect, and neither was the federal environmental assessment process in the past.

What is important is that Quebec's jurisdiction be respected. This bill will respect the jurisdiction. It provides for everything required in terms of overlapping responsibilities. Environmental protection is an area where responsibilities overlap. It is imperative that the proposed legislation provide a mechanism for the different levels of government to work in partnership. I am fully convinced that the legislation will enable and encourage this collaboration. In my opinion, to suggest that Bill C-69 will not have that effect is tantamount to playing politics and trying to pit Quebeckers against the rest of Canada.

[Ed Fast, Conservative, Abbotsford, BC]

The proposal is that Bill C-69, in clause 1, be amended:

(a) by deleting lines 25 and 26 on page 39.

(b) by deleting lines 39 to 42 on page 39.

The justification for this is the government needs to clearly define each of these concepts and the criteria that must be met. Since they have not, we are suggesting to remove paragraphs (a) and (b) from proposed section 63.

The sustainability and climate change tests in the assessment portion of the impact assessment process represent risk to proponents as they add uncertainty. The whole goal of this legislation was to improve certainty and this is going in the wrong direction. Policy issues like climate change and sustainability should be deliberated on during the early planning phase and measured against any relevant and available strategic and/or regional assessments to ensure the broad policy issues do not impact the scientific and fact-based review.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

This amendment was proposed in the evidence of the Canadian Environmental Law Association.

The existing proposed subsection 59(1) talks about the assessment by a review agency, and continues on with the effects in the report. The report sets out what are, in the agency's opinion, the effects of the designated project.

This adds new proposed subsections 59.1(1), (2), and (3), which break out what the minister says must be done with the report. There's an independent review of their operation to be undertaken. Then the minister must cause a report to be laid before the House within two years after the day on which this section comes into force. As well, if an act of Parliament amends it based on a review, the next report is to be tabled within two years.

The effect of all this, Madam Chair, is to enact the recommendation of the expert panel on environmental assessment and to establish the agency as the single quasi-judicial authority that conducts the assessments and makes decisions under the act on behalf of the federal government.

I appreciate the creativity of the Canadian Environmental Law Association in coming up with this. It's an extremely elegant way of ensuring that Bill C-69 meets the aspirations of the thousands of people, as well as the expert panel, who worked so hard on preparing the expert panel on the impact assessment report to the federal government.

This is an extremely important amendment.

[The Chair (Mrs. Deborah Schulte (King—Vaughan, Lib.)), Liberal, Deb Schulte]

Good morning, everyone. Welcome back.

We are again doing clause-by-clause on Bill C-69, an act to enact the impact assessment act and the Canadian energy regulator act, to amend the Navigation Protection Act and to make consequential amendments to other acts.

We have assisting us today, from the Department of Natural Resources, Jeff Labonté, Assistant Deputy Minister, Major Projects Management Office; and Terence Hubbard, Director General, Petroleum Resources Branch.

From the Canadian Environmental Assessment Agency, we have Christine Loth-Bown, Vice-President, Policy Development Sector; and Brent Parker, Director, Legislative and Regulatory Affairs Division. Welcome.

From the Department of Transport, we have Nancy Harris, Executive Director, Regulatory Stewardship and Aboriginal Affairs.

Thank you very much for being with us today.

Mr. Rochon, thank you very much for being with us from the Department of Justice.

As I had mentioned to committee members, in my zeal on Thursday to assist with amendments and subamendments I had stepped out of bounds and had moved to clause 6. We moved a LIB-76 amendment. I would like to ask the committee's agreement to reverse that decision. I should not be moving on anything outside of the clause we're studying right now, which is clause 1. If we could reverse the decision on the LIB-76 subamendment and the LIB-76 amendment as amended, I would very much appreciate that.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Chair, as this is my last amendment, I just want to take a moment to commend the permanent members of this committee on the wonderful way in which you work together, and the expeditious and fair way you've approached clause-by-clause on Bill C-68.

I will apologize that due to the motions I mentioned earlier—the ones I don't like, and you'll remember them—today I have to be at clause-by-clause for Bill C-68, Bill C-69, and Bill C-74, and Bill C-69 and Bill C-74 are happening at the same time, so I'll be leaving very shortly.

I just want to say that my amendment, PV-17, is to provide a requirement. It's great that this bill has included a five-year review process. I think that's appropriate, but what my amendment would do—not to go through every detail of it—would be to ensure that when that five-year review comes up, whatever committee is mandated to review the Fisheries Act as it has been amended by Bill C-68 would have reports from the minister that cover really significant bits of information that would allow a committee to make a good assessment. The minister would give them the report on the assessment of the state of our fisheries and the state of the fisheries stock, a review of what's been done under provisions of this act relating to the undertakings for which there were exemptions, and a list of all fish habitat where there have been no net loss and other offset measures.

I won't give you all the details, but that's the intent of this amendment, to have the Minister of Fisheries have an affirmative duty to prepare a series of reports for the use of the committee that reviews this bill in five years' time.

[Churence Rogers, Liberal, Bonavista—Burin—Trinity, NL]

Madam Chair, we're suggesting the removal of paragraph (e). Other than that, we move the amendment as presented. This is in keeping with amendments that we put forward for Bill C-69.

(Amendment agreed to [See Minutes of Proceedings])

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Again, this just harmonizes with Bill C-69.

I would note, Madam Chair, that the usage we're gravitating to is indigenous knowledge as opposed to traditional knowledge. I will make the comment that in addition to the indigenous communities, there are non-indigenous communities up and down our coasts. I'm going to be going back looking for community knowledge, or perhaps we can use the term “traditional knowledge” to apply to the non-indigenous people, but I think that has to be reflected in here somewhere. I would ask staff if, in fact, non-indigenous knowledge by non-indigenous people is factored into the decision-making process.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Madam Chair, let me again ask staff, would this not have happened in the past and would it not happen in the future in any event?

One of the complications, I suppose, is that the new environmental process in Bill C-69 may be setting up some new regimes that I can't say I'm aware of. I guess the question is, will there be other agencies of government that would be able to unilaterally take the actions contemplated here, or in fact, is it pretty much standard fare that they would in any event, regardless of their authorities, consult with the minister?

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

This simply harmonizes the language with Bill C-69.

(Amendment agreed to [See Minutes of Proceedings])