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.

[William Amos, Liberal, Pontiac, QC]

That was a process that I thought did engender public confidence, but there have been other proceedings that the NEB has been involved in where such confidence wasn't achieved. What can you comment, or are you willing to comment, on how Bill C-69 may best help engender public trust and public confidence in our regulatory process?

[William Amos, Liberal, Pontiac, QC]

I appreciate that, but what I am asking is around Bill C-69 in particular. What aspects do you see in this that could be enhanced in order to better achieve public trust? I appreciate that you're doing your utmost to communicate to the Canadian public, but there is clearly a disconnect.

[William Amos, Liberal, Pontiac, QC]

Thank you to our distinguished representatives of regulatory bodies across Canada. It is a privilege to have you here.

I feel as though the public—not just the constituents of Pontiac, but Canadians in general—would want me to ask each of you to speak to the issue of public trust in our regulatory institutions. How do you feel the legislative proposal in Bill C-69 is actually going to successfully address it, and where may there be opportunities for enhancement in order to achieve greater public trust? At the end of the day, if we want the environment and the economy to go hand in hand, we also need the public to come right along with that process. The public needs to feel as though good projects are going to be well regulated and that they're going to be well assessed before they even get off the ground.

I would go to Mr. Binder to start, but I'd invite each of your respected institutions to respond. What could be done better in Bill C-69? What could be modified to greater enhance public trust in our regulatory institutions?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Sure. We look forward to having them back again, hopefully.

Two other recommendations were made by Calgary entities—a professor from the University of Calgary, and the Pembina Institute. They recommended something that, regrettably, will probably require a royal recommendation because it would require additional resources. They proposed an independent energy information agency. I think the intent there is that, because of their experience before the various provincial and NEB tribunals, it would be useful to have a common base of neutrally collected information that everybody can rely on and have trust in.

Do you think that there would be some benefit to consideration of that to support the work of, frankly, all the tribunals under Bill C-69?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

My questions will be to Mr. Watson.

It's great to see you. We worked together a lot in Alberta on the Clean Air Strategic Alliance, which we both worked very positively with, and we recommend, at the federal level, bringing everybody together.

We've heard mostly about the first part of Bill C-69, but of course there is a second part, and that is the new Canadian energy regulator. A number of recommendations have been made both for the impact assessment part and the Canadian energy regulator.

One of the recommendations that some of the witnesses are suggesting, and frankly that the expert panel recommended, is that rather than ad hoc panels, there should be a full-time tribunal.

Given your experience both in Alberta and as the head of National Energy Board, do you think there is an advantage to having a full-time tribunal that develops the expertise to hear those hearings, or do you think you would be able to deliver the same responsibilities effectively with people appointed ad hoc to panels?

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

Well, I kind of respectfully disagree with that, because basically the reports are in. This is in an article from the Maclean's, “Investment by foreigners has collapsed. Foreign direct investment...in Canada clocked in at $31.5 billion...down 56 per cent...”

Chris Bloomer from the pipeline association made the point that “New projects are grinding to a halt and we have major problems as a sector and as a country accessing new markets for our energy products to the world.”

It appears that Bill C-69 is setting us on a path that's seriously going to affect Canada's competitiveness.

You brought up the issue of competitiveness, so obviously you are concerned about it, given the business you're in. How do you see this bill affecting Canada's competitiveness in terms of attracting investment around the world?

[Scott Tessier]

There will be a fundamental reset of our working relationship with the federal government, and the establishment of the impact assessment act and the impact assessment agency is going to change our day-to-day operations. We'll work more closely with those federal agencies, and we'll continue to work closely with subject matter experts in other federal line departments and agencies.

There will certainly be an increase, in terms of our day-to-day interface, of environmental and impact assessments. Beyond that, as I mentioned in my remarks, for something like our development plan approval process, we're going to have to sit down and figure out how to best streamline our accord implementation act responsibilities with the new working relationships that are being created under Bill C-69.

[Dr. Michael Binder, President and Chief Executive Officer, Canadian Nuclear Safety Commission]

Good afternoon, Madame Chair and members of the committee.

Thank you for inviting me to appear before you today to provide comments on Bill C-69.

Under our enabling legislation, the Nuclear Safety and Control Act, the NSCA, our mandate is to regulate the use of nuclear energy and materials to protect health, safety, security, and the environment; to implement Canada's international commitment on the peaceful use of nuclear energy; and to disseminate objective scientific, technical, and regulatory information to the public.

The CNSC is a unique regulator. It is unlike any other energy regulator in Canada. As committee members surely know, in nuclear, an accident anywhere is an accident everywhere. That is why Canada established a nuclear regulatory framework that is based on international obligations and treaty-level legal conventions. In my submission, I provide you with a list of key conventions.

The key requirement of the international nuclear safety and security regime is for the countries to have an independent nuclear regulatory body whose decisions are based on the best available scientific and technical information, not subject to government or political review. Further, to ensure compliance with international legal commitments, Canada must regularly report its regulatory performance, undertake peer reviews, and undergo scrutiny by the United Nations International Atomic Energy Agency, IAEA. I've provided the list of peer reviews recently undertaken in Canada in my tabled remarks.

Along with this level of transparency and scrutiny at the international level, we apply rigorous domestic standards and regulatory requirements that we report on. The CNSC is the only energy regulator that publishes annual regulatory oversight reports that assess the safety performance of all its licensees.

All of this brings me to the proposed Bill C-69.

The CNSC has extensive experience in working on environmental assessments. Since 2000, the CNSC has conducted over 70 EAs and appropriately assessed the environmental impacts of all proposed projects. In every case, in the past and in moving forward, one thing remained constant: the CNSC was and always will be the responsible authority for nuclear safety and security.

It seems to me that the notion of environmental assessment as a planning tool has been forgotten. The implementation and operations of a nuclear project may take many, many decades. It is important that the nuclear life-cycle regulator has the tools to make all the improvements and adjustments, including environmental considerations, throughout the life of the project.

Following its review of Bill C-69, the CNSC identified areas of the proposed impact assessment act that could benefit from increased clarity. We understand that the objective is to have one project, one assessment, and we agree. At the same time, to recognize the independence of the CNSC's regulatory decision-making, there must be a clear separation between the impact assessment and the licensing phase of a nuclear project. Furthermore, all conditions under an impact assessment should flow to the CNSC so they can be effectively managed throughout the project's life cycle.

It has been our experience in regulating uranium mines that harmonization with provinces in the licensing of uranium mines has been beneficial and efficient in avoiding duplication. We believe the new impact assessment regime should allow for co-operation and even substitution with provinces. We also are working with the government on implementation processes and timelines.

It is important that we all know, from the get-go, the length of time to get project approval. From our experience, industry can accept a quick “yes” or “no” decision. What is unreasonable is to get a “maybe”. As an example, it has now been more than 15 years since Ontario Power Generation started discussions with us about a deep geological repository, DGR.

A joint review panel was set up under CEAA 1992. Extensive public and indigenous consultations and hearings were held, and a report was submitted to the government in May 2015. A decision is still outstanding. Situations like this need to be avoided in the future.

We are also participating in helping the government in coming up with an effective and reasonable designated project list. In our view, not all nuclear activities and facilities need to undergo a review panel process. For example, an isotope cyclotron in a hospital, a small research facility or refurbishing a nuclear power plant to make it safer—all such projects should be left to the CNSE to regulate under the NSEA.

I would like to close by affirming that the CNSE supports the Government of Canada's proposed changes to policy and legislation to announce the impact assessment process. We look forward to further collaboration with the new Canadian Environmental Assessment Agency to clarify requirements and effectively implement the act.

Thank you and I will be glad to answer any questions you may have.

[Scott Tessier, Chair and Chief Executive Officer, Canada-Newfoundland and Labrador Offshore Petroleum Board]

Good afternoon, and thank you for the opportunity to share our views on Bill C-69.

I've had the privilege of leading a world-class safety and environmental regulator since 2013. For over 30 years, the C-NLOPB has served as an effective agent of independent joint management of the Canada-Newfoundland and Labrador offshore area. Safety and environmental protection are paramount in all board decisions.

We've reviewed Bill C-69 and have been discussing with governments our role in the new legislative framework. I'd like to begin, though, with a brief summary of the board's recent experience in this area.

Since 2003, the board has completed 57 environmental assessments and an additional eight strategic environmental assessments or SEA updates. Public comments are invited at several stages in these processes and, in the interest of transparency, relevant documents are posted publicly. The C-NLOPB is currently updating our strategic environmental assessment for the Labrador shelf, an initiative co-chaired by the Nunatsiavut government.

In our submission to the expert panel on environmental assessment processes in the fall of 2016, we expressed support for the Government of Canada's interim EA principles. Similarly, today I can confirm our support for the objectives of Bill C-69.

The C-NLOPB recognizes that legislative renewal can provide opportunities to improve the delivery of our mandate. Section 6 of Bill C-69 speaks to the principle of joint management. We're pleased that the government has expressed its recognition of the importance of the Atlantic accord. We're also pleased to see in related documents that projects with potential for smaller effects in areas of federal jurisdiction may be subject to other regulatory processes under life-cycle regulators like the C-NLOPB.

That said, our analysis has identified specific areas of concern and inconsistency between Bill C-69 and the accord acts that governments have been made aware of and appear open to considering. I'll also speak briefly to our initial input on key issues in two related discussion papers, which we've reviewed in conjunction with the legislation.

Our first area of concern is with respect to the single-window approach, in the spirit of joint management and “one project, one review”. In addition to being a product of the Atlantic accord, having an integrated regulator was one of the recommendations of the Ocean Ranger commission report. The C-NLOPB's single-window approach has worked effectively for over 30 years in one of the world's harshest offshore environments. It ensures all relevant information is available and integrated, allowing us to make fully informed decisions.

Bill C-69 contains provisions respecting the appointment and powers of enforcement officers—whom I'll call EOs—which could deviate from that one-window approach and overlap with C-NLOPB officers. If an EO were to order work to be stopped or conducted independently of the C-NLOPB, that could result in safety being compromised. I should note that this potential also exists under CEAA 2012, and relevant agencies are working on it. However, Bill C-69 itself is silent on such matters of potential conflict between regulators, and the C-NLOPB would be concerned should decisions affecting offshore safety be made without our input.

A second issue is with respect to the role and authority of the C-NLOPB. We want to ensure we have clear legislative authority in any area in which we take on responsibility. Bill C-69 continues to designate the C-NLOPB as a federal authority. I've been advised that back in the mid-1990s when it originated, this designation was intended to permit substitution of review processes under the accord acts. Bill C-69 does not enable such substitutions.

At this point, there are no consequential amendments for cost recovery or to section 138.1 of the accord acts related to environmental assessments. There are also no provisions mandating the C-NLOPB to carry out duties and functions under Bill C-69, or to collaborate or otherwise incorporate the obligations enumerated in section 21 of Bill C-69 into the accord acts. It's also unclear what role the new Canadian energy regulator will play, given the offshore area in Bill C-69 includes by definition the exclusive economic zone and the continental shelf. Greater certainty is required to clarify the potential respective roles of the CER and the C-NLOPB for oil and gas and for renewable energy when it comes to physical activities within the Canada-Newfoundland and Labrador offshore area.

We did note Minister Carr's comments to this committee on March 22 about the possibility of amending the accord acts to provide offshore boards with additional responsibilities if renewable energy is generated in the offshore. Ideally, the C-NLOPB should have commensurate regulatory authority with the CER for the Canada-Newfoundland and Labrador offshore area, and one solution would be to mirror provisions in Bill C-69 and the accord acts to ensure consistency in statutory interpretation.

A third point in our review is the fact that Bill C-69 requires that the minister refer to a panel any physical activities that are designated projects and regulated under the accord acts. Our development plan approval process includes an environmental impact statement, a socio-economic impact statement, a benefits plan, and other plans specified by the board. It may also require a public review with hearings.

This raises the question of when the C-NLOPB's development plan process should commence. We'll need to decide whether we should wait until we have the decision report in hand from the impact assessment agency process.

The C-NLOPB recognizes that we'll have an opportunity to provide our expertise in the panel process. However, the decision-making at the conclusion of the panel appears to be exclusively federal, and that final outcome could conflict with the accord acts.

We acknowledge the commitment of the Government of Canada to conduct a regional assessment in eastern Newfoundland, which could be used to inform and guide environmental assessments and regulatory decisions related to future offshore exploratory drilling projects in the area.

As Minister McKenna indicated to this committee on March 22, there's an opportunity to avoid the need for a separate impact assessment for project-specific offshore exploratory drilling activities where a regional assessment has been carried out. This approach could avoid the need for lengthy panel reviews on exploratory drilling projects, for which impacts and mitigations are well known and well established.

The C-NLOPB is working collaboratively with the Canadian Environmental Assessment Agency, along with our colleagues in the federal and provincial departments of natural resources, in the design of the eastern Newfoundland regional assessment.

A fourth area of uncertainty stems from clause 9 of Bill C-69, under which the minister may designate a physical activity that is otherwise within the duties and powers of the C-NLOPB to be a designated project, as she or he could under CEAA 2012. In theory, this could apply to any delineation well or geophysical program, both of which typically have not been designated projects in the past.

In the spirit of joint management, our expectation is that this ministerial discretion would be exercised minimally and such decisions would be taken in consultation with the Government of Newfoundland and Labrador and the C-NLOPB, if the project in question is in the Canada-Newfoundland and Labrador offshore area.

Our final area of observation deals with coming into force dates.

Any amendments to the federal accord act cannot come into force without mirror provisions being made in the provincial version. How the provincial statute would be amended to reflect many of the changes contemplated by Bill C-69 and the timing to do so while upholding the principle of joint management remain uncertain.

We're also unclear as to how the C-NLOPB will be expected to reconcile our existing obligations under the accord acts with Bill C-69 once it comes into force, given the precedence provision in section 4 of the accord acts.

Finally, our staff have reviewed two Bill C-69-related discussion papers released for public comment, and I'm pleased to briefly share our initial input today.

Regarding the “Consultation Paper on Approach to revising the Project List”, the C-NLOPB supports the criteria-based approach to revising the project list. To reiterate another point I made earlier, we're supportive of the plan for projects with potential for smaller effects to continue to be subject to other processes, such as those under life-cycle regulators.

With respect to the “Consultation Paper on Information Requirements and Time Management Regulations”, the C-NLOPB stands ready to assist the impact assessment agency in its review of documents, which project proponents would be required to provide in the early planning phase. We can also support the agency in its engagement and consultation efforts, given our familiarity and relationships with stakeholders. We can provide expert input on documents the agency intends to provide to proponents in cases where an impact assessment is deemed to be required. The C-NLOPB supports providing proponents with certainty, via regulation, when the clock could be stopped for legislated timelines.

In summary, the C-NLOPB supports the objectives of Bill C-69, with due consideration of coordination with the Atlantic accord regime and the C-NLOPB's oversight, which includes environmental protection and safety.

If the legislation takes into account the necessary considerations that are relevant to offshore petroleum activity, and if the required Atlantic accord act amendments are made, the changes could improve regulatory coordination and contribute to a more stable and effective regulatory system, including post-assessment monitoring and enforcement.

Thank you again for the opportunity to present. My colleagues and I look forward to addressing any questions you may have.

[Peter C. Watson, Chair and Chief Executive Officer, National Energy Board]

Bonjour, and thank you, Madam Chair, for inviting us to appear today.

In the interest of time, I'm not going to read my entire statement, which I understand members will receive copies of. I will just be introducing a summary of some of the key points in it.

Our work regulating energy infrastructure has placed us in the midst of some of the most important public policy debates in Canada over the last few years. It's very clear that Canadians are passionate about environmental stewardship, regional and cumulative effects, and the evolving status and nature of Canada's relationship with indigenous peoples. They have strong and often divergent views on these topics.

We often see that passion in our hearings, which have become a venue for debating some of these contentious issues. Many of these issues are at a regional scale, and one of our challenges is that the National Energy Board hearings are necessarily limited in nature, in that we apply the specific powers and legislative authorities to discrete project applications.

We note that the government is proposing to create space in the Canadian energy regulator act to allow for more transparent direction to the regulator on broad policy matters. Moving forward, the organization could benefit from this type of general, broad policy clarity as the overarching policies and priorities continue to evolve in the future, to ensure that appropriate mechanisms are in place to assess whether a specific project fits into the greater policy framework.

I emphasize that this should entail regional and cumulative effects frameworks built in collaboration across multiple levels of government.

There are many additional proposed changes in Bill C-69, and few are more pressing for us than the integrated impact assessments between the proposed impact assessment agency and the Canadian energy regulator, or CER.

The CER, the impact assessment agency, and other departments and agencies will need to work side by side to capitalize on our respective strengths, expertise, and authorities so we can build a new system that works for all stakeholders.

As a key partner in the new federal impact assessment review process, we bring extensive knowledge and technical expertise on energy markets, on pipeline design, construction, and operation, and on the environmental, social, health, economic, and safety aspects of energy projects. As I said, we also have the knowledge and expertise to assess market conditions and the economic need for the project.

There is need for alignment throughout the system, but with respect to integrated reviews, in three areas in particular. The first is timelines and stop-clock provisions. The next is with respect to the setting and amending of project conditions, because conditions play a critical role in mitigating the risks and harms associated with a project. The last area is with respect to the planning phase of an impact assessment.

We will work together across our agencies to learn from one another and align our respective approaches so that we can ensure that we're providing a single-window process for all stakeholders and that the review processes ultimately result in decisions that are timely, fair, and technically sound.

It's also important to recognize that the Canadian energy regulator act formalizes some best practices that we've already initiated at the NEB.

One final example I want to point out is our work with the indigenous advisory and monitoring committees on the Trans Mountain project and the Enbridge Line 3 replacement program. These committees were co-developed with indigenous peoples along those two routes. They support collaborative, inclusive, and meaningful indigenous involvement in the monitoring of environmental, safety, and socio-economic matters related to those projects over the project life cycle. Bill C-69 would formalize our ability to establish such processes and similar processes for life-cycle oversight on other initiatives moving forward.

In conclusion, I am exceptionally proud of the dedicated public service of our staff and members of the National Energy Board. We are ready and committed to work with our federal colleagues to implement the proposed legislation and deliver processes that are transparent, efficient, and fair for all participants and stakeholders in our process.

Merci beaucoup, Madam Chair.

[Paul Joffe]

I realize I have a little bit of time.

Yes, it's true. The Supreme Court has said, as I said, in 1987 and since then they've affirmed that international declarations are relevant and persuasive sources for interpreting human rights in Canada. So there's no question. But it goes farther than that.

First of all, indigenous governments, the federal or provincial governments, and all the human rights commissions in Canada under CASHRA, which is the umbrella group, support the UN declaration. People are free to use the declaration.

The benefit of having legislation is, first of all, that this legislation creates collaborative processes. That's always been a problem. When it isn't collaborative and legislators do things alone, unfortunately throughout Canada history has shown that there's been colonialism, there hasn't been an understanding, the problems have been entrenched in legislation, and we haven't gotten anywhere.

In terms of the recognition and rights framework—to be very quick—we'll have to see what that includes, but of course it fits with Romeo's bill. It's another step.

The way you implement the UN declaration in Canada, though, is not just to adopt Bill C-262. It's to integrate it in your various pieces of legislation. That way no one can say there's uncertainty. Let's say you're dealing with indigenous languages. If you fit it into, let's say, the preamble, the reference, or whatever, and show how it's going to be used and how it's going to reinforce the objectives of all legislators, that would help. It should be done with the proposed impact assessment act, Bill C-69. It should be done with Bill C-57. That way you not only create consistency but you also avoid uncertainty and meet the legislators...whatever.

I don't want to take their time.

Thank you.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Thank you, Madam Chair.

I would like to thank our esteemed witnesses for being here today. We all have the same objective, which is to enact laws that are more effective than the current legislation.

My first question is for Mr. Lindgren, from the Canadian Environmental Law Association.

Your comment that we are doing a good job is puzzling. You said—and I pretty much agree—that this bill does not restore confidence. I think that is very important as regards the environment. If I may summarize, you said that you find section 27 very simplistic. From what I understand, you think Bill C-69 is a shortcut.

I have a very specific question for you, since this kind of bill seems to be part of your daily work.

Can you please compare the current bill to the Canadian Environmental Assessment Act 2012 in terms of the process and the timelines for project certification?

[Melody Lepine]

From what I recall, I was invited to participate in the review panel's work, and I provided a presentation. Now I'm here today. I don't know whether this is considered consultation on your part, but I don't believe it was adequate and the timelines are quite aggressive in terms of our....

To be honest, I don't even think most people in my community are fully aware of Bill C-69, and probably not in many other indigenous communities.

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

Thank you.

I have a question for Ms. Lepine.

Your submission talks about lack of consultation when the 2012 changes were introduced. Could you comment on the consultations for Bill C-69? Do you think they were adequate?

[Melody Lepine, Director, Government and Industry Relations, Mikisew Cree First Nation]

Good afternoon, Madam Chair and committee members. It's an honour to be on Algonquin territory today. Thank you for the invitation to speak.

I hold the position of director of government and industry relations with the Mikisew Cree First Nation. I'm joined today by Mark Gustafson. Mark is a legal counsel who is assisting me on numerous regulatory files and will be helping me answer some of your questions today.

Mikisew has prepared a written brief. That brief contains detailed legislative amendments that we ask you to consider.

The Mikisew Cree is the largest Treaty 8 first nation within the Athabasca oil sands region. Our office has been reviewing numerous environmental impact assessments for the last 17 years and has directly participated in about eight joint regulatory hearings, raising environmental concerns and concerns about impacts upon our culture and way of life.

Our traditional territory houses a convergence of federal interests. It is home to Canada's largest national park, is a world heritage site designated under UNESCO, is inclusive of transboundary waters, provides one of North America's most important migratory bird pathways, and is home to such iconic species as woodland caribou and wood bison.

Recently the UN's world heritage committee sent experts to review the state of Wood Buffalo National Park, after we raised concerns that Canada is not doing enough to deal with downstream impacts from hydro dams and oil sands development. Those experts found that Canada is failing the park and the indigenous people within it. Flaws in Canada's environmental assessment process played a role in this embarrassing outcome for Canada. The 2017 IUCN World Heritage Outlook says that the park is now of significant concern and shows a trend of deteriorating.

I cannot stress enough how important federal assessments are to creating better relationships with industry and government, building healthy communities, and protecting federal environmental interests. That's the lens we have used to review Bill C-69.

For us, the most disappointing part of Bill C-69 is that it likely means that the federal government is abandoning the best tool it has to protect Canada's largest world heritage site from the very activities that have put the national park on the verge of being added to the list of world heritage sites in danger.

It is also abandoning a key tool for respecting the Migratory Birds Convention, abandoning a key tool for protecting iconic federally recognized species at risk and for reaching Canada's greenhouse gas goals.

It is also abandoning the best tool available to us in implementing UNDRIP and recognizing our right to take part in making decisions that affect our livelihood.

How have we come to that view? It comes down to triggers and what is happening in the oil sands. As the bill is currently drafted, federal assessments will only happen if an activity is on the project list or if the minister makes a discretionary decision to require it. We agree that both have a place in the bill, but they aren't enough for the federal government to protect its interests.

First, the project list is a blunt tool. It's meant to capture megaprojects—and it's useful in that regard—but it isn't flexible enough to be responsive to key areas of federal jurisdiction, such as world heritage sites, species at risk, or transboundary waters. It has been our experience that the project list excludes many of the activities that have been shown to directly and cumulatively impact species at risk and the Peace-Athabasca delta. As it stands, the project list means that you will likely never see another federal assessment in the oil sands region.

Let me repeat that. Even though industrial activities are putting a national park, woodland caribou, and bison at huge risk, there may never be another federal assessment as this bill is currently drafted. This is because the future of oil sands is the expansion of countless smaller projects that are less capital-intensive but equally problematic for federal environmental interests.

Second, while there is a process for updating the project list under way, not a single request we have ever made for an activity to be added to the project list or its predecessor has ever been accepted.

Third, discretionary decisions to require assessments are inherently hard to deal with, and they don't provide certainty to anyone. They also leave that important decision up to political lobbying campaigns that, in the end, undermine the very trust in the system that you are trying to restore.

Fourth, on many occasions we've requested a federal assessment because a project could impact federal matters and our rights, and the answer has been no. From that perspective, the new criteria guiding discretionary decisions isn't likely to make a difference. Where does this leave us? We believe there is a path forward that will allow you to be responsive to core federal jurisdiction without upsetting the structure of the bill.

Our proposal would provide greater certainty to Canadians that key federal matters are being properly assessed. At the same time, it would easily merge with the new planning phase to ensure the assessment matches the size and complexity of the proposed activity. In other words, it won't create delays. You'll find our solution on page 7 of our brief.

First, it entails creating a modest, third way to trigger assessments. This category is tightly scoped to core matters of federal jurisdiction. Second, we've also proposed that the minister develop sub-regional regulations with new assessment triggers where a regional assessment has determined an area that is experiencing a high degree of cumulative impacts. This flows from normal impact assessment practice. Once thresholds are exceeded, even a small impact can have serious consequences.

Next, I will highlight a few other proposals in our brief that connect with questions the committee has asked over the last few weeks about what the bill means for achieving indigenous consent.

In my experience, when there is a federal assessment, we have a better chance of getting the information we need to make informed decisions and getting us on a path to consent. The same cannot be said for provincial regulatory processes. The Alberta regulatory process creates a loss of trust, animosity, and in the end, legal and investment uncertainty for proponents. If the government is serious about getting first nation consent in a timely and effective way, the key starting point is improving the triggers for when assessments take place.

Another way to advance this goal is to make sure that the act works for indigenous consultation. We have proposed a few modest changes on pages 8 and 9 of our brief for improving how timelines are calculated and how the agency works with us to improve our chances of getting to consent.

Next, there a few inconsistencies in the bill that we have identified in terms of criteria for decision-making and tracking through the improved language around traditional knowledge. We've proposed solutions for these on page 9 of our brief.

Before I make my closing comments, I want to highlight that our brief also covers the navigable waters act. The key issue we have brought to your attention is that the act needs a key tweak to enter the 21st century.

If you come to our territory, you'll hear everyone talk about impediments to navigation, but the huge impediments we are facing are barely covered by the act because it is primarily focused on physical barriers. Activities that change the flow of rivers is what impacts navigation most heavily in our region. There are a couple of new sections in the act that start to get at this issue, but they are essentially inadequate. If you want to make a difference to our way of life and inland navigation, fix these provisions.

I want to leave you with a quick snapshot of our proposal.

First, take federal jurisdiction seriously. When you do, you protect Canada's international standing, respect indigenous people, and build a stronger economy. All that is needed is to add a small list of legislative triggers to provide a backstop to the project list. Those are in our brief. We are confident that Canadians and industry would support reviews for projects that could impact nationally important species like caribou and bison, and Canada's world heritage sites.

Second, recognize and respect your treaty partners. As the Supreme Court said, consultation with indigenous peoples is always in the public interest. That can start to be achieved if you adjust the wording around timelines and better incorporate the UN declaration. We've given you a few recommendations to get there.

Finally, make the space for certainty and good decision-making. That means fixing the triggers for assessment and clarifying the considerations for decision-making.

Bill C-69 is far from perfect and less than we expected to see after months of engagement on EA reform, but it can be improved.

Thank you for your time.