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.

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

This simply brings the language into harmony with Bill C-69. It would use the same language. It's just the term. It's meant to apply to both pieces of legislation.

(Amendment agreed to [See Minutes of Proceedings])

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

Madam Chair, good morning and forgive me but I need to put on the record that if I want to exercise a right I would ordinarily have at report stage, that right was removed by the motion this committee passed which requires me to be here at clause-by-clause if I want to put forward amendments. I don't move the amendments, so it's a difference from the original sketching out of the rules. I'm in a very different position in that all my amendments are deemed to have been moved. I can't withdraw them; I can't do anything about them. I get to speak to them. These are the terms of the motion, and it's identical in every committee, which has the effect of restricting my rights, and it increases my workload—that's just a side complaint—because I also have Bill C-69 for the rest of today.

Let me put this forward very quickly, because I do believe this is a good bill and I hope we'll pass it expeditiously, but it can be improved.

My amendment PV-1 is to respond to a number of witnesses who we heard at committee, particularly West Coast Environmental Law, whose brief looks at the importance of the concept of environmental flows and water flows, and expands our understanding of what “habitat” means by replacing, under the purposes of the act, subsection 2(2) with the following:

For the purposes of this Act, the quantity, timing and quality of the water flow that are necessary to sustain the freshwater or estuarine ecosystems of a fish habitat are deemed to be a fish habitat.

I note, Madam Chair, that my friend, Mr. Donnelly, has a similar amendment, but either one of them would be great.

[The Chair, Liberal, Deb Schulte]

We are on the schedule.

(Schedule agreed to: yeas 6; nays 3)

We're now on the preamble. We have PV-144.

(Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])

Shall NDP-99 carry?

(Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])

Shall LIB-131 carry?

(Amendment agreed to: yeas 6; nays 3 [See Minutes of Proceedings])

Shall CPC-47 carry?

(Amendment negatived: nays 7; yeas 2 [See Minutes of Proceedings])

(Preamble as amended agreed to: yeas 6; nays 3)

Now we're on the title.

(Title agreed to: yeas 6; nays 3)

Shall the bill as amended carry?

(Bill C-69 as amended agreed to: yeas 5; nays 4)

Shall the chair report the bill as amended to the House?

(Reporting of the bill to the House agreed to: yeas 6; nays 3)

Shall the committee order a reprint of the bill as amended for the use of the House at report stage?

(Reprinting of the bill agreed to: yeas 6; nays 3)

Thank you very much. We have completed the bill.

Before I hit the gavel, I just want to thank all the staff up here at the front who have been helping to keep me organized, and all the staff in the back, who have been doing all the work for the MPs. Thank you very much to all of you, and to all of those in the back who are hanging in there to help us.

Also, thank you to the MPs. I know it's been a very gruelling process, but we have gotten through it, a lot of hard work was done, and we have definitely improved the bill significantly.

The meeting is adjourned.

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

I'd like to get the meeting started. Thank you very much. Everyone who should not be here needs to go, but it is open.

We're back today and doing our clause-by-clause of Bill C-69. Before we get started where we left off, at amendment PV-29, I again want to bring to everybody's attention the motion that we're operating under. That motion tells us that “the Chair may limit debate on each clause to a maximum of five minutes per party, per clause”.

We have spent two days on clause 1. I've been very generous with people. I will continue to be reasonable, but to make sure that we continue on with a very large number of amendments, I'm going to ask those presenting their amendments to limit that to two minutes maximum.

I've heard from those around the table that they could not sit later in the day because they needed the time in the evening to be able to prepare, to do their research, and to understand each of these amendments. We did get the amendments last Friday. We really shouldn't need any debate on these. We've had lots of time to consider them and see where they fit in and what they mean. However, a subamendment to the amendment will need time, and I will give time for people to ask the necessary questions to understand a subamendment.

Given that this is the way I'd like to proceed, we will start with PV-29.

Ms. May, the floor is yours for two minutes.

(On clause 1)

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

We're going back to page 16. We're back into that section we spent a lot of time on, entitled “Decisions regarding impact assessments”. These are the sections that guide the agency's decisions. As far as I recall, we haven't accepted any amendments to this process, although we've had a number of amendments go around it. I would be adding a new proposed subsection 16(2.1), so after the factors that the agency must take into account, there would be a new mandatory establishment that there would be an assessment, either very preliminary—the agency could decide what kind of assessment, obviously....

To make it really clear, this is re-establishing the law list that was repealed in the omnibus budget bill, Bill C-38, in the spring of 2012. We have had federal laws triggering environmental assessments from 1976 until 2012. There are only three federal statutes, only three kinds of decisions by three different ministers, that would trigger an environmental assessment or an impact assessment.

The first would be a decision by the Minister of Fisheries under the Fisheries Act to permit any temporary or permanent alteration to or destruction of fish habitat. We had this before, for decades. It was killed by the previous government. It was a very good protection for fish habitat and for review of projects.

Then (b) would be a decision of the Minister of Transport, under what's now renamed the Canadian navigable waters act, to issue a permit pertaining to navigable waters, whether or not these are listed in the schedule. This is basically the form of what we had before 2012, acknowledging that we now have a schedule. Under the new version of the navigable waters act within Bill C-69 we have two kinds of navigable waters: those that are covered by the definition and those that are in the schedule. This would require that any decision by the Minister of Transport related to a permit pertaining to navigable waters, whether in the schedule or not, would trigger an EA.

Last would be a decision by the Minister of Environment under the Species at Risk Act to permit activities that pose a threat to a listed species.

The granting of those specific three kinds of permits only under those specific sections of those stated laws would trigger an impact assessment, if you accept my amendment, which is, as you can see, a very critical rebuilding of trust in the impact assessment process.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Chair, this amendment specifically comes from the Grand Council of the Crees, who provided a brief and also appeared before us. They presented the opinion that, as with the Mackenzie basin agreement, the James Bay and Northern Quebec Agreement should similarly be referenced.

Why do they argue that? Well, their agreement, the James Bay and Northern Quebec Agreement, is a modern treaty, and therefore it is binding and it takes precedence over any potentially incompatible legislation. I'm advised that, pursuant to that agreement, Canada is required to develop, in close co-operation with the Cree representatives, the required agreements and regulations contemplated under parts 1 and 2 of Bill C-69. They provide specific factors where federal impact assessment must be triggered for any project that is on, or partly on, their territory. That's in the treaty. Treaty members must be appointed to all federal and provincial assessment and review processes as per the treaty, and it must be led by the environmental and social impact review committee under the treaty. Any modifications to the provisions of the treaty must have the consent of the signatories.

I don't think I need to read it into the record, unless you'd like me to do so.

[Richard Sexton]

Yes, we are aware of the bill. As Claude correctly identified, it's our understanding that it's still being drafted. As many are aware, we have three environmental impact assessments—that is we in the CNL—that are under review by the CNSC. It's my understanding those will proceed as is and will not be subject to Bill C-69 at this point. In the future we do recognize, both CNL and AECL, that if there are other significant changes to the facilities of the plant that require a full environmental impact assessment, we will have to engage in that process.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

How will Bill C-69 impact AECL's decision-making process?

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

Thank you, Madam Chair. I'm aware of how much work we have ahead of us and how little time. Forgive me, but I have to put on the record that I'm here only because of a motion passed by this committee. I would rather you hadn't passed that motion, because it restricts my rights. I could otherwise bring my motions to the floor of the House at report stage, but required as I am by your decision as a committee, I'm bringing forward 150 amendments to Bill C-69. I hope we can have proper debate on all of them. I sympathize with the situation in which you all find yourselves.

My amendment here is to improve the bill with the full recognition of the United Nations Declaration on the Rights of Indigenous Peoples. If you go to page 2, line 35, I'm leaving in the language “to fostering reconciliation and working in partnership with them;”. That language doesn't go, but after the recognition of section 35 of the Constitution, I insert the language:

and by the Declaration on the Rights of Indigenous Peoples

I'll make a quick note to let you know that when we get to amendment PV-2, in that section, I have a definitions section so that anytime we use the words “Declaration on the Rights of Indigenous Peoples”, it refers specifically to the United Nations Declaration on the Rights of Indigenous Peoples.

I feel that my first amendment, PV-1, corresponds exactly to the will of the Government of Canada.

[Ed Fast, Conservative, Abbotsford, BC]

We're looking at the preamble of Bill C-69.

[Ed Fast, Conservative, Abbotsford, BC]

Yes. In the package that we have of proposed amendments, we have a proposal, CPC-47, which addresses the preamble in Bill C-69.

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

Good morning. Thank you very much, everybody. We are starting clause-by-clause of 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.

Welcome to those who have joined us at the table. There are also some people in the back, so there's a lot of support with us today should we need it.

I'll introduce them. We have from the Department of the Environment, Mary Taylor, Executive Director, Environmental Assessment, Environmental Protection Operations. We have from the Department of Natural Resources, Jeff Labonté, Assistant Deputy Minister, Major Projects Management Office; and Terence Hubbard, Director General, Petroleum Resources Branch. We have from the Canadian Environmental Assessment Agency, Christine Loth-Bown, Vice-President, Policy development sector; and Brent Parker, Director, Legislative and Regulatory Affairs Division. From the Department of Transport, we have Catherine Higgens, Assistant Deputy Minister, Programs; and Nancy Harris, Executive Director, Regulatory Stewardship and Aboriginal Affairs. Welcome back to some of you.

They're here with us today, should we have any questions.

We also have others in the back who may come up should they need to. We have Nicola Contini, Counsel, Canadian Environmental Assessment Agency Legal Services; Barbara Winters, Counsel, Natural Resources Canada Legal Services; François-René Dussault, Counsel, Transport Canada Legal Services; Martha Green, Senior Counsel, Transport Canada Legal Services; Yves Leboeuf, Senior Counsel, Environment and Climate Change Canada Legal Services; and Jean Sébastien Rochon, Senior Counsel, Department of Justice, Resource Development Coordination Unit.

Thank you.

If we are all ready—

[William Amos, Liberal, Pontiac, QC]

Thank you to all of our witnesses today.

It is a treat to have you here. I will disclose to Professor Borrows that I've been a huge fan of his for many years, and this is a great moment to be able to ask you some questions about this bill. I'd like to extend my line of questioning and jump between Bill C-262 and Bill C-69, because there's a very live debate around the incorporation of UNDRIP in that context, and I'm sitting on that standing committee as we consider that bill.

My first question is directed to Professor Turpel-Lafond and Professor Borrows. Bill C-69 has been subject to some criticism for not sufficiently incorporating both UNDRIP and its principles. I will be bringing forward amendments to do just that in the days to come.

I don't presume that you have expertise or knowledge of Bill C-69, but I'm hoping that you do have some understanding. If you take it for granted that we're looking at an impact assessment regime, how should Bill C-262, if enacted, be properly reflected in a bill such as Bill C-69?

I put that to you both, please.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Hi. I will ask my questions in French, which is my first language.

Good morning, and thank you, everyone.

I would first like to say that I'm replacing a colleague today. I am interested in the topic we're discussing today, but it is outside of my comfort zone. I normally sit on the Standing Committee on Official Languages, where members work hand in hand, and where we have the right to ask any questions we may have.

I was left wanting more, and I'll tell you why. It concerns the agency's impact assessment. Paragraph 22(1)(s) of the proposed bill mentions “the intersection of sex and gender with other identity factors”. Both you and the minister talked a lot about indigenous peoples.

Do you take gender-based analysis into account when drafting such a major bill?

If so, what impact will this bill have on women and children? We talked a lot about indigenous peoples.

I also have another question. I'll ask both of my questions, and then the witnesses can answer them however they want.

Could Bill C-69 be an obstacle to the economic development of certain remote areas, for example, regions that aren't populated by indigenous peoples, given all the analyses you will conduct? In my region, there are few indigenous communities, if any.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Thank you, Chair.

Thank you all very much for being here once again on this very important bill.

As I've mentioned a number of times, I have been through environmental assessments and terms of reference at the provincial level with the Province of Ontario. It was my experience in going through those that the proponent has an incredible amount of power, in a sense, on defining what evidence or science is going to be used. I want to follow up on where Mr. Fisher was going earlier.

It's very much proponent driven. In the mining experience, they decide how it will be studied, what will be reported, how reports are presented, or whether they're even presented at all. Once again, if they don't like the findings, nobody knew the report was even done.

How does Bill C-69 ensure that this is not going to be a purely proponent-driven process when it comes to the science and evidence?