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.

[Alison Ronson, National Director, Parks Program, Canadian Parks and Wilderness Society]

Good morning to the committee, and thank you for asking me to appear today.

I'm the Director of the Parks Program at the Canadian Parks and Wilderness Society, a charitable non-profit, as many of you may know, with over 50 years' experience in advocating for the protection of Canada's wilderness and wildlife. On a personal level, my background is in environmental sciences and biology, law, and international affairs, with a focus on environmental governance. I've spent the last four years working with CPAWS.

I will be limiting my comments to part 1 of the bill, the impact assessment act. My comments will relate specifically to federal protected areas in general, but I will be referring a lot to our national parks.

Parks and protected areas are what make our country special. They safeguard our natural heritage, protect iconic wildlife, provide us with clean air, fresh water, and traditional foods, and provide opportunities to us for both quiet contemplation in nature as well as life-altering backcountry experiences.

There's a growing scientific consensus that we are currently living in the midst of the world's sixth mass extinction event, and this is being exacerbated by human activities, including resource extraction and development. We're already seeing the impacts of this event here in Canada.

Globally, parks and protected areas are one of the best proven solutions to slowing down this extinction event, as they safeguard habitat for iconic species here in Canada, such as moose, caribou, and grizzly bears, and also the suite of biodiversity represented across our country.

The pieces of legislation that create our protected areas in this country create them for nature and for protecting ecosystems. Given this, and given that they're also so important to our own well-being and are supposed to be our most treasured and valued places, it is logical that the highest possible standard of impact assessment should be applied in these areas.

Unfortunately, in our estimation, Bill C-69 falls short of providing that high standard. The bill largely follows the structure of CEAA 2012. If a project on federal lands is not listed on the designated project list, a federal authority—in the case of national parks, Parks Canada—must determine whether that project or work is likely to create significant adverse environmental effects. This determination regime watered down impact assessment in protected areas and has led to problems with transparency, accountability, and public consultation related to private, commercial, and infrastructure development in our parks.

CEAA 2012 and, likewise, Bill C-69 do not provide provide adequate guidance as to how a federal authority should conduct their determination of a project. In national parks, our impact assessment regime is currently conducted by Parks Canada in accordance with an internal policy that is open to interpretation and applied in an inconsistent manner across the country.

Under their regime, there are developments such as the massive expansion of the Lake Louise ski area, which has been determined not to cause significant adverse effects to Banff National Park even when scientists and the public clearly expressed concern about the impacts of this development on the habitat of important species such as mountain goats and grizzly bears. In fact, in an access to information request submitted by CPAWS, we've learned that since 2012 over 1,500 development projects that were assessed by Parks Canada were considered not to have significant environmental effects, including the Lake Louise expansion.

Under CEAA 2012 and the Parks Canada policy-based approach, CPAWS has observed less rigour, less opportunity for public engagement, and inconsistent application of the policy. In contrast to this, the 1992 act contained provisions that aimed to recognize the special status of federal protected areas and to provide safeguards related to development projects.

Under CEAA 1992, there was an immediate presumption that projects in national parks and federal protected areas would undergo an impact assessment. This presumption was then informed by the regulations. For example, the exclusion list provided which projects in parks would not have to go through an impact assessment, and that included things like routine maintenance, painting of park benches, and so on.

The comprehensive study list regulations provided guidance about which projects required a more rigorous impact assessment. This list included physical works that we obviously wouldn't and shouldn't accept in protected areas, such as dams and mines, and projects that were likely to have significant long-term effects, such as ski area expansions. Under CEAA 1992, the expansion of the Lake Louise ski area would have been subject to a comprehensive study, would have been coordinated by the Canadian Environmental Assessment Agency, and would have provided resources for public consultation.

That act also contained language that required the minister to consider ecological integrity of a protected area when deciding whether a project would have adverse environmental effects.

In CPAWS' opinion, CEAA 1992 was much more protective of our national parks and federal protected areas than CEAA 2012.

Bill C-69 largely maintains the same structure as CEAA 2012 and will perpetuate the same problems with development in parks and protected areas as we are currently witnessing. Those problems include lack of transparency, lack of consultation, proponents conducting their own impact assessment and soliciting only positive feedback on their projects, incredibly short timelines that don't provide the public with enough time to read highly technical documents, and a lack of scientific rigour.

Clause 86 of the bill now obligates the federal authority to provide notice of their intention to conduct a determination. However, it then allows them to make that determination within 15 days. In our estimation, that's wholly inadequate.

To improve Bill C-69, we suggest the following: that the committee include language in the bill that creates the presumption that all projects in national parks and federal protected areas are subject to impact assessment, unless the minister determines, with an adequate notice period, that such projects are likely to cause insignificant adverse environmental impacts; ensure that impact assessment is carried out by the impact assessment agency or, where appropriate, by Parks Canada when Parks Canada is not the proponent of the project; and that the assessment follow legislated process and consultation guidelines. The bill, unfortunately, contains limited guidance as to how the determination process by a federal authority should be conducted.

There should be an option to reject the project, not just apply mitigation procedures, which is what's largely happening with every development project in our national parks at this point.

We should ensure that ecological integrity is the number one priority of the impact assessment agency or the federal authority when they are conducting impact assessments in federal protected areas. We should increase resources available to ensure all Canadians can be consulted on impact assessments in our federal protected areas.

Many of the projects we're seeing right now in national parks will inform the local communities only about the project rather than ask what all Canadians think. CPAWS would argue that our national parks are in the public trust. They are here for all Canadians to enjoy, and therefore, all Canadians should have a say in how they're managed.

More specifically, in clauses 22, 63, and 84 of the bill, which set out the factors to be considered when impact assessment is ongoing, we need to include that the impacts of the project on an ecosystem's biodiversity is a factor. Currently those sections consider climate change, but biodiversity and biodiversity loss in particular are crises that are facing the global community, and we need to address them here in Canada.

On clause 86, making the notice period at least 30 days when a federal authority is conducting a determination would provide adequate time for members of the public to read the information that is provided and provide feedback.

Finally, I would like to stress that nowhere in the bill is there any recognition that Canada is home to some amazing world heritage sites. Many of our national parks have been designated as globally important and as having outstanding universal values. Bill C-69 does not recognize this.

The International Union for Conservation of Nature provides guidance for how a state party should conduct impact assessment when a project is in or near a world heritage site. Our impact assessment regime should incorporate and adopt this guidance.

For the sake of our well-being and that of future generations, I urge this committee to recommend changes to Bill C-69 that would restore the presumption that projects in national parks and federal protected areas require impact assessment by the impact assessment agency.

I would also like to suggest to this committee that trust in the system and government accountability cannot be restored to the impact assessment regime when parks and protected areas, supposedly our most valued and conserved places, are not subject to the same or better requirements than the rest of our landscape. They must be elevated above the rest of the landscape and truly protected for the benefit of both current and future generations.

Thank you.

[Martin Olszynski, Assistant Professor, Faculty of Law, University of Calgary, As an Individual]

Good morning, Chair and committee members. Thank you for the opportunity to be here today with you in your review of Bill C-69, and the impact assessment act in particular.

Briefly by way of background, I am an assistant professor at the University of Calgary faculty of law. Prior to joining the law school back in 2013, however, I spent almost six years as counsel at the Department of Fisheries and Oceans, where my practice included advising that department with respect to its environmental assessment responsibilities under both the previous Canadian Environmental Assessment Act and the current CEAA 2012.

I hold bachelor degrees in science and law from the University of Saskatchewan, and a master of laws degree from the University of California at Berkeley. I have been an active participant in this reform process for the last two years, having filed submissions with both the expert panel and with the government directly.

With the time I have I will focus on what I believe to be some specific shortcomings in the current bill as drafted, especially with respect to the role of science in impact assessment. I will not be tackling the IAA's general architecture in my opening remarks, but I am prepared to speak to that. As context, essentially I think it's fair to describe the Impact Assessment Act as a kind of CEAA 2012 plus. It has essentially all the same parts as the previous act except for certain parts that have just been expanded.

My comments will track my written submission to the committee. I understand that has been translated and provided to you. I also brought a small supplemental brief. There are three figures in that brief. I don't know that I'll get to all of them, but I wanted to have them with me just in case and to have them for you for your record.

As noted in part II of my brief, one of the more important themes to emerge in the context of the current reform process is that the science of impact assessment needs more rigour. In a 2015 piece in BCBusiness, for example, one professional biologist described these as dark days for his profession, including having his professional opinion heavily pressured, and his wording, results, and interpretations changed.

The expert panel on environmental assessment heard this message loud and clear and concluded that stronger guidelines and standards are needed.

The government itself, in its 2017 discussion paper and in the various policy documents that have accompanied Bill C-69, also seems to understand this issue, yet Bill C-69 falls far short on this score. The terms “science” or “scientific” are only mentioned five times, and in no case are they given any real work to do.

I want to refer the committee members to the first figure in my supplemental materials which is a little triangle diagram that we came up with. The idea basically here is straightforward. Science is foundational to the entire impact assessment exercise. Every step and subsequent step, whether planning phase, assessment, or decision-making, relies on scientific information. The flip side of this of course is that an error or flaw in the science has the potential to compromise the entire process.

As a starting point, Bill C-69 should be amended to include a “duty of scientific integrity” on those persons involved in the impact assessment process, which at a minimum would capture the principles of objectivity, thoroughness, and accuracy.

A further amendment should give the government the power to develop regulations to further flesh out what this duty requires, including guidelines and standards for such things as the design, data collection, and analysis of baseline sampling, as well as monitoring during and after projects.

I want to reiterate here a point that has been made by others in their briefs. There is nothing new under the sun about having a duty of scientific integrity. References to scientific integrity can be found in numerous American environmental laws, regulations, and policies.

A second critical shortcoming along this line of science is the continued gap between the legislated contents of the public registry and the agency's internal project files.

To ensure transparency and open science, the registry provisions—and these are at clause 105 of the proposed impact assessment act—should match the provisions for the agency's internal files which are described at clause 106. The act should also make explicit that all scientific information submitted in the course of an impact assessment is presumptively public unless a request for confidentiality is made and granted pursuant to narrow terms. This would require an amendment to the current clause 107, which appears to create a presumption of confidentiality.

I really need to stress this point. I have never received any explanation, let alone a compelling one, as to why proponent data and models should not be readily available. I can understand that some data and models may be proprietary, but that does not mean they need to be confidential. It simply means their use would be governed by the Copyright Act, which of course includes “fair use” exemptions for academic and other public purposes.

My next set of recommendations has to do with mitigation measures and how they have been dealt with under both previous CEAAs.

Here it is important to recall the basic nature of this regime. I'm referring to 1992, 2012, and the current proposed impact assessment act. Like all of its predecessors, the IAA does not draw an environmental, or any other, bottom line. The whole regime boils down to the consideration of effects, which is then supposed to enable political accountability for project approval or refusal. You need to keep this in mind when I discuss my next recommendations.

While a lot of attention falls on baseline studies—how we decide what the state of the environment is before a project proceeds—mitigation is also a critical aspect of the IA process. Mitigation includes the strategies that a proponent might implement to reduce known adverse environmental impacts or others. It may come as a surprise to the committee, but there is actually a long and troubling history of proponents and EA panels relying on unproven mitigation measures to avoid concluding that a project will result in significant adverse effects.

In my view, this fundamentally undermines the assessment process and the public accountability it is intended to enable. Consequently, I recommend provisions aimed at ensuring that mitigation measures be demonstrably effective or their effectiveness be reasonably certain based on the best available science. Again, this would not mean the projects that cannot meet this threshold would not be approved. There is no bottom line set out in the IAA. It just means Canadians would have a more honest and accurate assessment of a project's likely impacts.

I would also allow some reliance on mitigation measures whose effectiveness is uncertain, but only if a proponent commits to a structured process of learning, otherwise known as “adaptive management”. Here I refer committee members to page 5 of my brief. There is a figure at the top of the page indicating the adaptive management cycle. Adaptive management has a long history. You can pull up any number of joint review panel reports; last summer we did a quick word search, and 90% of the projects on the CEAA registry contained a reference to adaptive management.

The problem is that it's not actually being done. Adaptive management is a good idea in theory, but it's not being done in practice. To substantiate that, I looked at 18 projects in a recent research project at the University of Calgary. We looked at the environmental impact statements filed by proponents where they claimed to rely on impact assessments. Now I'm referring you to the second figure on page 5, which shows the percentage of completeness of the adaptive management cycle by project type. We find that whereas adaptive management is supposed to be this rigorous process for learning that requires identification of objectives, of indicators, of planning and rigour, none of that work is being done. Proponents say they're going to do adaptive management as a way of convincing regulators that everything is going to be fine, but then they never do it.

At appendix A of my submission, I propose some basic language to ensure that adaptive management will actually be done where proponents say they will do it. I pause to note that I submitted a much more detailed set of provisions, three pages' worth, back to the government in August 2017. I've scaled those down considerably for you. They are about three-quarters of a page now. I'm hopeful that the committee will see their merit.

Alternatively, if the committee is not prepared to prescribe some process around adaptive management that would ensure its actual implementation, then I suggest that the IAA should be amended to explicitly bar reliance on it. As things currently stand, it is essentially being used as a smokescreen when proponents don't know how to deal with environmental effects.

Those are the main points I wanted to make. I have five or six remaining recommendations that I will briefly cover. I'd be happy to discuss more during the questions and answers.

Recommendation five is a reflection of existing case law and specifically the problem of what “consideration” means. A series of cases in the last couple of years have basically said that so long as there is some consideration of an environmental effect, then it's not reviewable. There's no error of law. In other words, there would have to be no consideration whatsoever. I think everyone would agree that it's not a very high threshold. I suggest that some kind of modifier needs to be added to the beginning of the term “consideration” at, for instance, proposed sections 22 and 63 to ensure that it's meaningful. Whether it's “meaningful” or “robust”, either of those would be useful.

I think the mandate provisions at proposed subsection 6(2) should be cross-referenced to specific process points in the IAA to make sure that the mandate is being followed. I also am concerned with the total jettisoning of the term “significance”. I think overall it's a good idea that we would frame our environmental assessment or impact assessment around a basic binary significance; non-significance would be problematic. At the same time, however, not having anything also creates real problems and the potential for ambiguity.

I see that my time is up, so I'll wrap up there.

Trans Mountain Expansion Project

[Erin O'Toole, Conservative, Durham, ON]

Mr. Speaker, it is my pleasure to divide my time tonight with my good friend and colleague, the hon. member for Louis-Saint-Laurent. Tonight we appear to be the central Canadian connection here in a debate that many Canadians believe is exclusive to Alberta and British Columbia, but I am here tonight, as a proud Ontario MP who has had the honour of serving and working across the country, to say that debates like this are critical to the future of our country. Pipelines are as much in the national interest of my constituents in Ontario as they are in Lakeland and Peace River, or in British Columbia, or in Louis-Saint-Laurent.

I would remind people in my riding all the time, when we are looking at regulatory reviews like the line 9 reversal and other things accomplished under the government of Stephen Harper, that the present government has to bend over backwards to hide the fact that many pipeline projects were approved under the previous government. All were reviewed appropriately, but the last government recognized and was proud to stand in the House and proud to stand on any street corner in the country and say that resource development is in Canada's national interest. The Liberal government will not do that.

Here we have a Conservative caucus from across the country. I, with my time representing Durham, and my friend from Louis-Saint-Laurent will remind people that the jobs in Ontario are due to the success and wealth of Canada as a resource country, and getting our products to market through pipelines allows us the best world price, the best royalties, and the best economic activity possible. We need to remind Ontarians of that.

I am proud that my dad worked for General Motors when I was a kid. Ontario is still known for vehicle manufacturing and auto parts. In the last decade, there have been more jobs created in Ontario as a result of the resource economy in Alberta than through automobile assembly. When I tell that to auto workers in my area or retired GM workers, they are astounded, because they do not hear that enough. As parliamentarians, it is our duty to remind Canadians that when we say something is in the national interest, it is in their interest, at their kitchen table in southern Ontario, just as much as it is around a very concerned kitchen table in Edmonton or Calgary.

These debates are important. What troubles me to no end about the Liberal government is a Minister of Natural Resources heckling my colleague from Peace Country when he was talking about personal stories. The minister from Edmonton is laughing now. We are here to tell those stories, to talk about the concerns. I have spoken to the Edmonton chamber, and it is worried.

Canada is not open for business under the present Prime Minister. We are closed for business. Capital is fleeing Canada, not because we are the safest, most prosperous, and most well-educated and well-trained country in the world, but because of the uncertainty caused by the Prime Minister from day one.

On his first trip abroad to sell Canada at Davos, the Prime Minister said that we are not just resources now; we are resourceful. He mocked the entire resource industry by suggesting that. Maybe the Prime Minister should learn a bit about steam-assisted gravity drainage, or slant drilling, or shale deposit exploration and extraction, or minimizing water usage in the resource industry in Alberta. The innovation in our resource economy has been astounding, yet on his first trip to Davos, the Prime Minister just wiped it away: “We are resourceful now. We do not need resources.” Certainly, the government's plan for pipelines means we are not going to sell our resources.

Let me tell the House how much the Liberal Party has changed. My friend from Skeena—Bulkley Valley raised the issue that the Prime Minister got elected by pretending to be a New Democrat when he was in British Columbia, and then pretending to be a Liberal when he was in Ontario or Quebec. Now it is coming home to roost. He has to pick a side. He has to defend Trans Mountain as being in our national interest, which it is. The B.C. premier has no mandate. He lost the last election in popular vote and seat count.

He is being held hostage by a couple of radical Green MLAs to cause a constitutional crisis. That is what he is allowing to happen. It is terrible, and we have heard virtual silence from the Prime Minister of Canada.

Let us see how much the Liberal Party has changed. One of the most raucous debates in this chamber took place in May 1956, when the Right Hon. C.D. Howe stood up and said this about pipelines, “The building of the trans-Canada pipe line is a great national project, comparable in importance and magnitude to the building of the St. Lawrence seaway.” He went on to say, “The action proposed today is another declaration of independence by Canada..”. That was when they were rushing through a pipeline debate.

This Prime Minister has been avoiding selling pipelines and resources to Canadians and around the world. This Prime Minister waited for a constitutional crisis before he had meetings and started speaking about it being in the national interest. Why is it a crisis? Because he has already dropped the ball.

A few years ago, former Liberal premier Frank McKenna said this about energy east: “The Energy East project represents one of those rare opportunities to bring all provinces and regions of this country together to support a project that will benefit us all, and that is truly in the national interest.”

Well, certainly that aspirational national interest language by a prominent former Liberal politician was quashed when the actions of the current government led TransCanada to cancel the energy east pipeline. Previous to that, this Prime Minister had already cancelled the northern gateway pipeline that had been reviewed. What did some Canadians say about that? Chief Elmer Derrick, Dale Swampy, and Elmer Ghostkeeper, three first nation leaders, said that they were very disappointed from the unilateral cancellation of northern gateway. That was a $2-billion opportunity for first nations in British Columbia that was cancelled because of a unilateral anti-resource decision by this Prime Minister.

We now have Bill C-69. We have a track record in two and a half years of saying not just to the global capital markets that Canada is closed, but we have had the Prime Minister and members of his own caucus say that we need to prepare for closing down our resources. We need to move beyond it. Tonight, they heckled when they heard about the concern that causes at a lot of kitchen tables around our country.

Why I am so passionate as an Ontario MP is that my first job before going to college was inspecting TransCanada pipelines, the pipeline inspection crew between Belleville and Ottawa. I have seen the economic activity first-hand. I have also seen the manufacturing industry during the global recession when oil prices were still high. Contracts for the oil sands and exploration in Saskatchewan and Manitoba was the lifeline for manufacturing. It kept us afloat. That is the national interest.

The fact that we have to bring an emergency debate and the Prime Minister had to have a stopover meeting between his global jet-setting to bring a few premiers together means he has let this crisis happen. He has cancelled northern gateway, and through his actions he has cancelled energy east. The one pipeline he thought he could let go is sliding off the table, with Kinder Morgan now suggesting all this uncertainty is leading them to question their investment. They are in Hail Mary pass mode when they suggest that they will buy the line or pay for part of it. That desperation is not needed.

For a change, I would like the Prime Minister to go to Davos and talk about the importance of our resource industry. I would like him to showcase the innovation brought by these men and women who work in our oil patch, the pipeline industry, and the jobs that supply it. It is sad that we have to bring an emergency debate to remind the Liberals that jobs in the resource industry from coast to coast are in all Canadians' national interest.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Mr. Speaker, we are here today for one reason and one reason only, and that is we are in a crisis, a crisis of confidence. We have investors who, whether they are foreign or domestic, lack the confidence in Canada as a place to invest, as their confidence in the government to create an environment for them to invest in and protect their investment has gone sideways.

It has gone that way because if the Prime Minister's contradictory messages or comments, policies, and inaction on core projects. This has absolutely rocked the investor community. As a matter of fact, at the COFI conference which I was at just last week, as was the Minister of Transport, we heard very soundly from economists who stood on the stage and said that investor confidence in Canada is at an all-time low.

Investment is flowing out of Canada at record levels, levels that have not been seen in over 70 years. Why is that? As mentioned, it is due to legislation such as Bill C-69, Bill C-49, a tanker moratorium, and the Prime Minister killing energy east at the eleventh hour by introducing new rules. Let us not forget northern gateway, a project that was approved. It was a project that underwent rigorous environmental standards and testing, a project that had indigenous equity partners. As the Prime Minister and the government came to power, the rug was pulled out from underneath the project.

I remind this House that it was just over a year ago when the Prime Minister said that he was phasing out the oil sands. I will also remind my colleagues that one of the very first statements the Prime Minister made on the world stage after gaining power was that Canada will become known more for its resourcefulness than its resources. That is shocking.

On Trans Mountain, the reason we are here tonight, the Prime Minister has failed to deliver a clear action plan from the very beginning. Truthfully, I do not believe for a moment he ever wanted this project to go forward. He will stall while saying those words with his hand on his heart, that he and his cabinet are seized with this project and that it is their intention to have it go through. We have seen a few ministers today and over the last couple of weeks state that this project will go through, yet it has taken over a year for them to even come to the province of British Columbia, my beautiful province, to actually say those same strong words. Where have the 18 MPs from B.C. been? They have been silent on this issue.

I will go as far as saying that I put the blame squarely on the shoulders of the Prime Minister and his 18 Liberal MPs from the province of British Columbia for the situation we are currently in provincially. They failed to stand up for the Trans Mountain pipeline. That was a major issue in the provincial election last summer when the NDP and the Green Party campaigned that this project will never go through under their watch. The B.C. Liberals were fighting it out and doing their very best to try to win back our province. What we saw was essentially a deadlock. Then there was a coalition with the NDP and the Green Party. Premier Horgan might be in a little trouble because if he supports the pipeline, what will happen to his majority? He is going to have a bit of an issue in terms of how he can hang on to power.

Domestic and foreign investors looking at Canada and British Columbia as places to invest are comparing the ease of doing business and returns on capital that can be achieved here with those in other jurisdictions around the world.

We have to remember that investors have choices. What we do as a government or as a parliament, or what the Liberals do as government, can have a significant impact on investor confidence. That is what we are seeing currently. Under the current government, investors in Canada have been besieged by significant federal and provincial tax increases, which taken with the recent substantial tax reductions in the United States and the ever-increasing protectionist government, as well as the opportunities they are seeing south of the border, underscores that Canada's small, open trade-exposed economy is no longer competitive.

Economists are speaking out. Dave McKay, president and CEO of RBC, raised a concern about investment capital leaving Canada in real time, noting that a significant exodus of capital from Canada to the United States is well under way and that we should be worried.

These comments have been echoed by John Manley, president and CEO of the Business Council of Canada, who stated recently that real issues of competitiveness are absent from the federal government's thinking, noting that Canada is, “always in this difficult competition to attract investment and to retain investment — and it's not be taken lightly because investment can move quickly.”

We even have the Suncor president and CEO Steve Williams saying that his company, Canada's largest integrated oil firm, will not embark on new major projects in our country because of the burdensome regulations and uncompetitive tax rates.

Finally, late last year, the TransCanada Corporation, after spending over a billion dollars, cancelled its proposed $17-billion energy east pipeline project out of frustration with the government and the project approval process.

These and other examples across the country demonstrate that policy-makers have a definite impact on our economy. That is what we are seeing with Justin Trudeau's failure to get this job done and creating burdensome regulations on investors. We must always remember that investors have choices.

I want to touch on the indigenous partners aspect, because this has been brought up time and time again. I will relate it to a story in my own riding, the Mount Polley disaster, which I have brought up before. There are no two ways about it, it was a disaster. However, the proponent, the company, and our indigenous first nations partners within our riding, as well as our communities, banded together and got the job done with respect to mitigating the disaster.

We had protesters out there day in and day out. When a card check was done on those people, it was shocking to find that most of the protesters were not from our region, and some of them were not even from Canada. However, they were there making sure that Canadian businesses had every roadblock put in front of them. There is a lot to be said in the media about how our indigenous partners and indigenous communities are tired of being pawns for environmental groups, of being trucked out in the media and being used as pawns in this. Our indigenous communities only want an opportunity to be self-sufficient and to be partners in these programs. In the Trans Mountain pipeline, over 43 indigenous communities are equity partners in this project.

In the seconds that I have left, I want to read this. It states, “A Conference Board of Canada report has determined the combined government revenue impact for construction in the first 20 years of expanded operations is $46.7 billion, including federal and provincial taxes...for public services such as health care and education.”

It also notes that B.C. alone would receive $5.7 billion, Alberta would receive $19.4 billion, and the rest of Canada would share $21.6 billion because of this project.

If there is a project that has national interest, this is the one. Unfortunately, through delay tactics and confusing comments, the Prime Minister has shaken investor confidence, and that is unacceptable.

[Jonathan Wilkinson, Liberal, Parliamentary Secretary to the Minister of Environment and Climate Change]

Mr. Speaker, I welcome the opportunity to participate in this emergency debate.

The Prime Minister has said repeatedly, and reaffirmed on Sunday, that the Trans Mountain pipeline will be constructed.

Interprovincial pipelines are the responsibility of the federal government, and when making decisions on interprovincial pipeline projects, it is the Government of Canada's duty to act in the national interest. That is exactly what happened when we approved the $7.4 billion Trans Mountain expansion pipeline.

It is worth reviewing the process that was undertaken in order to remind Canadians that the decision to approve the project was taken only after careful review, extensive consultations, and thoughtful deliberation based on sound science and Canada's best interests. I would like to highlight some of that tonight.

When our government took office, we committed to reviewing and reforming the way the federal government makes decisions with respect to major projects. In February of this year, we introduced Bill C-69, the impact assessment act, which would accomplish exactly that through better rules to protect our environment, fish, and waterways; rebuild public trust and respect indigenous rights; strengthen our economy; and encourage investment.

We also committed not to send projects already under review back to the starting line.

That is why we implemented an interim approach to address projects that were then in the queue, such as Trans Mountain. That interim approach was based on five guiding principles, principles such as expanding public consultations, enhancing indigenous engagement, and assessing upstream greenhouse gas emissions associated with projects.

As part of this, our government appointed a special ministerial panel of distinguished Canadians, who travelled the length of the proposed pipeline route, ensuring indigenous peoples and local communities were thoroughly canvassed and heard.

On the TMX expansion, we also completed the most in-depth consultations with rights holders ever undertaken on a major project in Canada. To date, 43 first nations have negotiated impact benefit agreements with the project, 33 of those in British Columbia. In the end, the project was approved with 157 conditions that reflected these consultations, robust scientific evidence, and the national interest.

The economic benefits of this project are clear. It would create thousands of construction jobs and countless more spinoff jobs in every part of the country. It would generate billions of dollars in new government revenues over 20 years of operation, new tax dollars to help pay for our hospitals and our schools, build new roads and safer bridges, and help fund Canada's transition to a low carbon future. The project would also open up new economic opportunities for the 43 indigenous communities that have signed more than $300 million in impact benefit agreements along the pipeline's route.

However, we should not look at the Trans Mountain pipeline expansion in isolation. We also need to consider how the pipeline will fit in with our government's overall vision for Canada in this clean growth century and how this government has responded to legitimate concerns of Canadians, in particular those who live in the British Columbia Lower Mainland, those being issues relating to spill prevention and climate change.

We have signed the Paris Accord on climate change. We have worked hard with the provinces and territories to develop the pan-Canadian framework on clean growth and climate change, a plan that lays out Canada's clear path to achieving our targets under the Paris Accord.

At the same time, our government is putting a price on carbon, accelerating the phase-out of coal, promoting energy efficiency, regulating methane emissions, creating a low carbon fuel standard, and making generational investments in clean technology, renewable energy, and green infrastructure.

The pan-Canadian framework incorporates all of the upstream and direct emissions associated with the Trans Mountain pipeline. Its greenhouse gases are also well within the 100-megatonne cap on oil sands that was brought in by Alberta's NDP government. It is complemented by the most ambitious oceans protection plan in our country's history, a $1.5 billion investment to protect our waters, coastline, and marine life.

The oceans protection plan builds on and maximizes every possible safeguard against an oil spill happening in the first place. Measures include air surveillance, double-hulled tankers, and double pilotage.

Kinder Morgan must provide enhanced tanker escorts using tethered and un-tethered tugboats beyond the Lions Gate Bridge into the Strait of Juan de Fuca to Canada's 12-mile nautical limit. New, larger vessels are being purchased for this purpose, as tugs of this size are not currently available on the west coast.

We have made the largest investment in the Canadian Coast Guard in years, strengthening its eyes and ears to ensure better communication with vessels and making navigation safer by putting more enforcement officers on the coast and adding new radar sites in strategic locations.

An important example of this was our decision to reopen the Kitsilano Coast Guard base with new rescue boats and specialized pollution response capabilities, and we are funding more scientific research and new technologies to make cleanups even more effective.

The House should note that it was the previous Harper Conservative government that announced the immediate closure of the only Coast Guard station located in Canada's busiest harbour in Vancouver. That is their record when it comes to protecting B.C.'s coasts.

Our approach is world class, an approach that meets or exceeds the gold star standards set by places such as Norway. Our government has been very clear about the path forward regarding this project. We can and must protect our environment and communities while growing our economy. Our approval of the Trans Mountain expansion project, along with measures that will enable our oceans and coastal communities to remain healthy and safe, achieves these goals.

As we have said before, federal jurisdiction with respect to the Trans Mountain pipeline expansion project is very clear, and we are actively pursuing options to provide the certainty required for this project to move ahead. As the Prime Minister said yesterday, we will have more to say in the coming weeks.

Some will take issue with our government's approach, and we respect that. We are lucky to live in an open society where people with different views can debate them respectfully and choose to protest peacefully and lawfully.

Our government will continue to listen and work hard on behalf of all Canadians to ensure that the Trans Mountain pipeline expansion is completed and that it moves forward safely and responsibly.

Budget Implementation Act, 2018, No. 1

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Mr. Speaker, it is always an honour to rise in this place, even during difficult times such as today when it is with somewhat of a heavy heart one rises after the tributes we heard on the terrible tragedy in Saskatchewan.

It is also sometimes difficult to rise in trying times such as these when so much is at stake for the future of our country, even as we grapple with the ongoing crisis over the Trans Mountain expansion and the implications that a failure of that project would have for all future projects in Canada.

This budget implementation act necessarily brings us back to the budget that it implements. The bottom line of any budget, and really the first thing that anyone wants to know about a budget, is whether it is going to be a surplus budget or a deficit budget. Any analysis, criticism, or commentary has to take place in the context of the size and scope of any surplus or deficit. All the choices of inclusion or omission from a budget have to be viewed through that lens.

In the case of a deficit, it is customary to address the question of when the budget will return to surplus. I say this is customary because indeed it is. In fact, all 13 provincial and territorial governments either have a balanced budget or have a specific timeline or projection for when their budget will be balanced, and it is contained in their budget.

The finance minister is currently running a significant deficit, and neither the budget nor this implementation act make any mention of the means or timing of a return to balance. I raised this with the minister when he appeared before the finance committee last month. I asked him why he is the only finance minister in Canada who has no plan for a balanced budget, and why he did not even address the issue in a 400-page budget document. He said, “No matter how many times the Conservative members ask us to follow the playbook of the previous Conservative government, we won't do it.” I may disagree with the minister on the point of whether or not he should follow the Conservative playbook, but at this point I think most Canadians would settle for this government merely following its own playbook.

On page 12 of the 2015 Liberal platform, its playbook, it reads:

We will run modest short-term deficits of less than $10 billion in each of the next two fiscal years to fund historic investments in infrastructure....

After the next two fiscal years, the deficit will decline and our investment plan will return Canada to a balanced budget in 2019.

On page 72 under the fiscal plan and costing chapter it reiterates, “We will run modest deficits for three years so that we can invest in growth for the middle class and credibly offer a plan to balance the budget in 2019.” Later on in the same chapter it says, “After the next two fiscal years, the deficit will decline and our investment plan will return Canada to a balanced budget....” The Liberal playbook refers to balanced budgets, and in fact, the Liberals promised balanced budgets. They promised small deficits and a return to a balanced budget.

Given that the Liberals promised a balanced budget by 2019 in the 2015 election, given that they promised only short-term deficits of less than $10 billion, and given that they promised these short-term deficits only to fund historic investments in infrastructure, the question is why they are now implementing a structural deficit in a budget with over a $20-billion deficit. Why does the finance minister repeatedly refuse to give any timeline for a balanced budget at all? Why does he bizarrely criticize the Conservatives for even asking about a balanced budget when he ran on an election platform that contained that very promise?

In fact, the finance minister got lucky this past year. The Canadian economy benefited from a whole host of factors, for none of which the finance minister can take any credit. Commodity prices were better than forecast. The world economy has had perhaps its best year since the great recession. The American economy was positively booming with a record-setting stock market run. Real estate price inflation has continued in Canada. Interest rates have remained low. Even with all of these factors in his favour, the finance minister still ran a promise-breaking deficit in this budget following what will surely be one of the strongest economic years in this Parliament.

If the minister promised to return to balanced budgets, he has completely failed to deliver, and it is more than reasonable for opposition members to ask if not now, then when. Given that a return to balance was a huge part of the Liberals' election promise, we would not be doing our jobs as an opposition holding the government to account without asking that question and no answer has been given so far. Still, there really is nothing in the bill to address that question either.

There is, however, in the original budget a troubling item contained on page 290, and that is a recognition of the fact that Canadian oil sells at a significant discount to world prices due to a lack of pipeline capacity in general and the routing of existing pipeline capacity mostly to the oversupplied Cushing, Oklahoma hub rather than to tidewater or to other refinery areas with spare capacity. This discount from world prices, which the government commented on in the budget itself, has grown significantly worse in the past few months.

This difference between the price that our producers get and world prices has a significant impact on business profits and jobs in the industry. The discount has an enormous impact on tax revenues to both the oil-producing provinces and to the federal government itself and it dictates the viability or non-viability of future projects. Simply put, this discount means that we are actually exporting tax revenue and public services to the United States.

Using round numbers, Canadian exports are about three million barrels a day. If Canadian producers take a $20 discount, that means the industry loses $60 million a day, or roughly $22 billion per year. A significant portion of that $22 billion will be taxable income at both the federal and provincial levels. The federal government loses billions in tax revenue because of this price differential, so it cannot be ignored as a factor in the budget.

What is truly alarming today, given the debacle over the Kinder Morgan Trans Mountain expansion, is that the finance minister, in his budget, assumes that both Trans Mountain and Keystone XL will be built at a reduced price discount. We obviously know that these assumptions are being challenged right now. Both projects at best will delay projected revenue from profitable oil production, but in typical fashion, the finance minister has just assumed that the pipelines will be built even though a host of opponents are doing everything they can, including breaking the law, to prevent these pipelines from getting built.

The finance minister surely knows that he has cabinet colleagues who oppose the energy industry, that he has caucus colleagues who campaigned in the last election against the Trans Mountain expansion, and that the most senior unelected adviser to the Prime Minister is notoriously anti-pipeline. Therefore, it was a fairly bold assertion for him to simply assume the Trans Mountain and Keystone XL pipelines would be built. Both projects are behind schedule. Both continue to be opposed by extremists committed to everything from vexatious litigation to violent clashes with police while defying court orders, trespassing, and destroying private property.

Given the government's track record, what credibility does it really think it deserves on pipelines? The finance minister's budget assumes the pipelines are going to be built, and yet one of the first things the government did after it was elected was to kill the northern gateway project, which was a pipeline to tidewater approved previously. The proponent was working through the conditions and the concerns that had been raised about the project when the Liberal government used an arbitrary tanker ban to ensure that it could never be built.

Then the Prime Minister completely failed to get Barack Obama to approve Keystone XL, which added another couple of years to the delay of that project. The finance minister is counting on this project to reduce the differential that has to be taken into account in his tax revenue projections.

We know energy east was killed by the government's decision to move the goalposts on its proponent by absurdly deciding to make both upstream and downstream emissions part of the criteria. I say absurd because the emissions from fossil fuels moved through a pipe are mostly determined by the type of vehicle the fossil fuel is put into by the end consumer.

Now the government is even pushing through Bill C-69. At the environment committee, the president of the Canadian Energy Pipeline Association said, “It is hard to imagine that any pipeline project proponent would be prepared to test this new process or have a reasonable expectation of a positive outcome at the end of it.” He went on to say, “If the goal is to curtail oil and gas production and to have no more pipelines built, this legislation may have hit the mark.”

What is the finance minister going to do if the capital flight that has been under way for months cannot be reversed? What is he going to do if nobody will invest and create jobs in the resource sector? What is he going to do if interest rates exceed his expectations? What is he going to do if there is a real estate price correction? What is he going to do if the NAFTA renegotiations end in trade restrictions that damage Canadian access to the American market? Even with everything going his way he cannot balance the budget. Was he going to do it if any of these eventualities happen or any of the hundred other unforeseen events should happen? Now is the time to establish a fiscal cushion to prepare for the inevitability of difficult times ahead.

The budget is not balanced. There is no plan to balance it. There is no date for the budget to be balanced. There is no plan that will get pipelines built, which has a significant impact on the finance minister's ability to balance future budgets. There is no apology by the Liberals to Canadian voters for breaking their promise on the deficit in the first place. There is nothing in the budget implementation act to address any of these issues.

What does this bill do? It makes certain changes to the Income Tax Act to implement changes announced by the Minister of Finance last summer on the taxation of Canadian-controlled private corporations, and other tax changes that we are now getting to the point where the CRA has to actually implement them.

We know that on July 17, the Minister of Finance dropped his bombshell announcing that too many wealthy Canadians were using complex corporate structures to avoid taxes. He went on to announce, following a brief summertime sham consultation, that the Liberals would ram through private corporate tax changes to severely restrict dividend payments between related shareholders, the so-called sprinkling, eliminate the dividend tax credit, which would create the double taxation of passive income with rates at about 73%, and make it virtually impossible to sell a business to a relative, among other things.

I am sure that every member of this House heard from small business owners who do not have a pension, do not have a minimum wage, do not have the protections of employment law, and cannot collect employment insurance. They have to be 100% liable for the conduct of their own employees, who they also cannot sue for gross negligence. What all of these people, these hard-working business owners, heard in the summer was the wealthy finance minister called them tax cheaters.

What happened after that announcement was remarkable. Business owners and tax experts all across Canada spontaneously rose up and with diverse voices unanimously spoke in opposition to every aspect of the minister's proposals. This grassroots opposition did cause the government to partially backpedal on some of its plans contained in this bill. The part of last summer's announcement that many found the most egregious was the double taxation of passive income. Therefore, in December, the finance minister backpedalled and said there would be a limit under which the double tax would not apply. What he did instead in the budget, was he said there would now be a tie-in between passive income and access to the small business rate, which will now be reduced or eliminated for small business owners who have passive incomes of greater than $50,000.

My suggestion to addressing the problem that he created back in the summer was simply a complete retraction of what the Liberals had announced then, and an apology to all of the hard-working small business owners across Canada who were deeply wounded by the bold assertions the finance minister made. Let us face it. The reason the finance minister and the Prime Minister believe that small businesses are really just tax dodges for the wealthy is that they themselves use private corporations to dodge taxes. All the while he was pointing his finger at shopkeepers, farmers, plumbers, realtors, accountants, doctors, lawyers, engineers, taxi drivers, and restaurant owners, the finance minister, that wealthy-born one percenter, was found to have failed to disclose the private corporation he used for tax planning purposes to shelter income and future gains on his French villa. Contrary to his past statements and all expectations of a minister of the crown, much less a finance minister, the finance minister still owned millions of dollars of Morneau Shepell shares.

How was that fact concealed from the public for almost two years? The shares were held in a private numbered company the finance minister registered in Alberta, presumably for tax-planning purposes. It was owned by him, his wife, and another Ontario numbered company. For the first time in the span of a few months, the finance minister was found not only to be personally using complex corporate structures to avoid paying tax but was using them to avoid requirements of the Conflict of Interest Act.

It is high time for this finance minister to end his war on small-business owners and to apologize for his own hypocrisy instead of proceeding with changes to the Income Tax Act contained in this bill.

If passed, this bill would also hand over to the CRA responsibility for dealing with the changes to the tax on split income and the reduction of the limit on the small-business tax rate for small businesses with over $50,000 in passive income.

As shadow minister for national revenue, I could not help but notice that 2017 was a particularly tough year for the Minister of National Revenue and her agency. Every time we turned around, it seemed the agency had a half-baked plan to raise additional tax revenue at the expense of some vulnerable group or another, such as when the minister spent the entire months of October and November insisting that the CRA had done nothing to deny the disability tax credit to type 1 diabetics, despite the fact that it was obvious to everyone except her, and perhaps her parliamentary secretary, that of course the CRA had changed its forms in May 2017 to make it harder to qualify.

The agency also changed its folio to state that after 2017, it would tax employee discounts and meals, but the minister again seemed to be the last person at the agency to be aware that this was being done, before she ordered a reversal. The agency also appeared to be targeting single parents, restaurant-server tips, and disabled Canadians, who suddenly had problems qualifying for the disability tax credit.

On top of that, tax preparers complained about an ever-increasing backlog of corrections and appeals caused by sloppy or incompetent assessments, and a scathing Auditor General's report confirmed that the agency's call centre hangs up on people 64% of the time and gives incorrect information to 30% of the rest who get through.

To an agency already struggling, and a minister who is clearly not in control of her department, this bill would now add a complex reasonableness test for dividends paid to related shareholders of private corporations. Let us think about that. An agency that hangs up on people and is wrong almost a third of the time when it speaks to taxpayers would now have to answer questions about things like the reasonableness of the payment of dividends, questions about share classes, questions about labour contributions, questions about property contributions, questions about the financial risks assumed, and a great catch-all, questions about such other factors as may be relevant.

How on earth can Canadians expect that they will get reliable answers to these questions, given the track record of both the current government and the CRA's call centre? These questions have been asked here in this House and at committee meetings and even at public meetings attended by the minister, and nobody from the government has been able to give anything but the most vague and hypothetical answers to these questions. Canadians might be forgiven if they are a bit worried that nobody knows the answers to these questions and that the legality of thousands of Canadians' tax planning is going to be at the mercy of future court decisions.

It would be very easy to go on for a lot longer about different aspects of this act, such as the implementation of the higher taxes on beer, wine, and spirits and the escalator clause; and certainly about the carbon tax, which is also part of the government's horrific mismanagement of its natural resources policy and an outrageously regressive tax on the poorest and most vulnerable members of society. However, time marches on, so I will wrap up.

I would like to conclude by urging members to vote against this bill, given that it would increase taxes; would fail to even address the very concept of a balanced budget; would do absolutely nothing to get pipelines built, the very same pipelines the budget needs for its own tax revenue; would help facilitate this minister's war on small business through the changes to the taxation of private corporations, and of course, would enable the job-destroying, poverty-inducing carbon tax. Therefore, I will be voting against this act, and I urge all other members to do so as well.

The Environment

[Jonathan Wilkinson, Liberal, Parliamentary Secretary to the Minister of Environment and Climate Change]

Mr. Speaker, our government has brought forward in Bill C-69 better rules for the review of major projects that will protect our environment, fish, and waterways; will restore public trust and respect indigenous rights; and will strengthen our economy and encourage investment. Reforms to these laws were important because of the gutting of environmental assessment procedures undertaken in 2012 under the previous Conservative government. We are committed to changing the way decisions on projects are made so that they are guided by science, evidence, and indigenous traditional knowledge.

Natural Resources

[Andrew Scheer, Conservative, Leader of the Opposition]

Mr. Speaker, the reason the stakes are so high for Trans Mountain is because of the government's disastrous energy policy from start to finish.

It vetoed northern gateway, something that had gone through an independent, evidence-based analysis. It killed energy east. It has driven out $87 billion worth of investment in the energy sector. It has brought in Bill C-69, which has further shaken confidence in Canada's economy.

Why is that the Trans Mountain project had to become a crisis before the Prime Minister finally took action?

Fisheries Act

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

Mr. Speaker, I would like to begin by acknowledging we are on the traditional territory of the Algonquin people, and express gratitude to them for their generosity and patience. Meegwetch.

I also want to thank the hon. member for Sackville—Preston—Chezzetcook for sharing his time with me, and acknowledge this shows a spirit of respect toward opposition benches from the current Liberal government. I am grateful for the opportunity to speak, although I still must object to the use of time allocation and reducing time for debate in this place. However, the respect shown in shortening time but still allowing a member such as me to have at least one crack in second reading to this very important legislation is appreciated. It is particularly appreciated when I stand to speak, with shared time from a Liberal member, with the intention of attacking Liberal legislation, which I have done recently with shared time.

Today is a different occasion. Bill C-68 would repair the damage done to the Fisheries Act under former budget implementation omnibus bill, Bill C-38, in the spring of 2012, as the hon. member for Sackville—Preston—Chezzetcook was just referencing. This bill goes a long way. Within the ambit of what the Minister of Fisheries can do, it would repair the damage done by omnibus budget bill, Bill C-38, in relation to the Fisheries Act. I want to speak to that, as well as the one aspect where it would not fully repair the damage.

This is definitely a historic piece of legislation. The Fisheries Act was brought in under Sir John A. Macdonald. Canada has had a fisheries act for 150 years. That act traditionally dealt with what is constitutionally enshrined as federal jurisdiction over fish, and some people may wonder where the environment landed in the Constitution of Canada and the British North America Act. Where was the environment? The fish are federal. The water is provincial if it is fresh water, and federal if it is ocean water, so there has always been a mixed jurisdiction over the environment.

Over fish, there has been no question. Fish are federal. In the early 1980s, this act received a significant improvement, which was to recognize that fish move around and they cannot be protected without protecting their habitat. The Fisheries Act was modernized with a real degree of environmental protection. It had always been a strong piece of environmental legislation, because if we protect fish then we tend to protect everything around them.

In this case, the Fisheries Act was improved in the early eighties by a former minister of fisheries, who by accident of history, happened to be the father of the current Minister of Fisheries. It was the Right. Hon. Roméo LeBlanc. We use the term “right honourable” because he went on to be our Governor General. He amended the Fisheries Act in the 1980s to include protection of fish habitat, requiring a permit from the federal Minister of Fisheries if that habitat was either temporarily or permanently harmed or damaged. This piece of legislation is the significant pillar upon which much of Canada's environmental regulation rested.

What happened in Bill C-38 in the spring of 2012 was a travesty that remains in the annals of parliamentary history as the single worst offence against environmental legislation and protection by any government ever. It was followed up with a second omnibus budget bill in the fall of 2012, Bill C-45, which took an axe to the Navigable Waters Protection Act. In the spring, Bill C-38 repealed the Environmental Assessment Act and replaced it with a bogus act, which I will return to and discuss. Bill C-38 also repealed the Kyoto Protocol Implementation Act, the National Roundtable on Environment and the Economy, and gutted the Fisheries Act.

Rather than go on about that, the hon. member who was just speaking referenced the changes made. I can tell people some of the changes that were made, and I was so pleased to see them repealed. When one opens a copy of Bill C-68, the first thing one sees is subclause 1(1), “The definitions commercial, Indigenous and recreational in subsection 2(1) of the Fisheries Act are repealed.” This is not a scientific thing. This is what Bill C-38 did to our Fisheries Act. Fish were no longer fish. They were only fish if they were commercial, indigenous, or recreational. That language came straight from a brief from industry. It did not come from civil servants within the Department of Fisheries and Oceans. It came from the Canadian Electricity Association. That is repealed.

This bill would bring back protections for habitat. It goes back to looking at some of the foundational pieces of how the Fisheries Act is supposed to work, and then it goes farther.

I have to say I was really surprised and pleased to find in the bill, for the first time ever, that the Fisheries Act will now prohibit the taking into captivity of whales. That was a very nice surprise. It is proposed section 23.1. I asked the minister the other day in debate if he would be prepared to expand this section with amendments, because over on the Senate side, the bill that was introduced by retired Senator Wilfred Moore and is currently sponsored by Senator Murray Sinclair, and I would be the sponsor of this bill if it ever makes it to the House, Bill S-203, would not only ban the taking of whales into captivity but the keeping of whales in captivity. I am hoping when this bill gets to the fisheries committee. We might be able to expand that section and amend it so that we can move ahead with the protection of whales.

This bill is also forward-looking by introducing more biodiversity provisions and the designation of areas as ecologically sensitive, work that can continue to expand the protection of our fisheries.

I will turn to where there are gaps. Because I completely support this bill, while I do hope for a few amendments, they come down to being tweaks.

Where does this bill fail to repair the damage of Bill C-38? It is in a part that is beyond the ability of the Minister of Fisheries to fix. That is the part about why Harper aimed at the Fisheries Act, the Navigable Waters Protection Act, and the Environmental Assessment Act.

There was not random violence in this vandalism; it was quite focused. It was focused on destroying the environmental assessment process so that we would no longer be reviewing 4,000 projects a year. Of those 4,000 projects a year that were reviewed under our former Canadian Environmental Assessment Act, most of them, about 95% of them, were reviewed through screenings that were paper exercises, that did not engage hearings, and so forth. However, it did mean that, at a very preliminary level, if there was a problem with a project, a red flag could go up, and it could be booted up for further study.

There is a reason that the Fisheries Act habitat provisions were repealed. They were one of the sections listed in our former Environmental Assessment Act under what was called the “law list”, where a minister giving a permit under section 35 of our former Fisheries Act automatically triggered that the decision was subject to an environmental assessment.

Similarly, why did the former government take a hatchet to the Navigable Waters Protection Act? Like the Fisheries Act, it is an act we have had around for a long time, since 1881. It was not an act that had impeded the development of Canada or we would never have had a railroad. Since 1881, we have had the Navigable Waters Protection Act. The previous government took a real axe to it. The current Minister of Transport has gone a long way toward fixing it under one portion of Bill C-69.

This is why. Navigable waters permits also were a trigger under the Canadian Environmental Assessment Act. Do members see where I am going here? This was synchronized action. It was not random.

The current government has pledged to fix all of the damage done by the previous government to environmental laws. Where the failure to fix things is evident is in what is called the “impact assessment act” in Bill C-69. It has abandoned the concept of a law list altogether. It has abandoned the concept of having permits and environmental assessments required whenever federal money is engaged. In other words, the Harper imprint of going from 4,000 projects reviewed a year to a couple of dozen will remain the law of the land without significant improvement to Bill C-69. In particular, the decisions the Minister of Fisheries makes should be subject to an EA, just as the decisions of the Minister of Transport should be subject.

In my last minute, I want to turn our attention to something I hope the Minister of Fisheries will take up next, because he is doing a great job. I hope he will take up looking at open-pen salmon aquaculture. It must end. It is a threat to our wild salmon fishery on the Pacific coast. It is a threat to the depleted wild Atlantic salmon stocks on the Atlantic coast, where I am originally from. There is no Atlantic salmon fishery because it has been destroyed. However, there are still Atlantic salmon, which could restore themselves if they did not have to compete with the escapement of Atlantic salmon from fish farms in Atlantic Canada, and the destruction of habitat by those farms. On the west coast, these are not even indigenous species that are escaping and threatening our wild salmon.

Let us close down open-pen fisheries, give aquaculture to the Minister of Agriculture, have fish in swimming pools on land, and let the Minister of Fisheries protect our coastal ecosystems.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

The specific concern was raised that they thought Bill C-69 does not have enough emphasis on the economic advantages or benefits.

What I'm asking is this. Should we not be doing a balance? My recollection is that, at every hearing I've been at, we hear lots about the economic benefits. The local county comes in, the local towns, and so forth. Should we not also be hearing about the other side, possible economic costs?

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

Following up on that, one of the things that were novel...and I think for a lot of people who are looking at Bill C-69, their only experience was with CEAA 2012. It's not to say that they don't have background and experience, but some people are relatively newer to the process than are some of us who have been through this a few times.

Prior to CEAA 2012 there wouldn't have been the problem for your industry of the National Energy Board, the Canadian Nuclear Safety Commission, or the offshore boards having a role. You worked exclusively with one agency. I don't want to answer the question for you, but what is your experience with the energy regulators' introduction to the process?

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

Okay, so you have a lot of experience.

I wanted to ask is that, given your experience, on behalf of the mining industry, interacting with several different iterations of environmental assessment law in Canada.... You've experienced the environmental assessment process up to 2012, under the previous CEAA. You've experienced CEAA 2012. I know you haven't experienced Bill C-69 because it isn't in place yet, but from what you're experienced, Mr. Gratton, which would you say was the form of EA that was fairest and easiest to work with from the point of view of MAC?

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Thank you very much, Madam Chair.

Thank you, folks, for being here. It's very good testimony, and I truly appreciate the very pointed recommendations that you're all making.

The first question is going to go to the Canadian Electricity Association, Francis or Terry.

Bill C-69 has shortened timelines for decision-making, both for project reviews and for cabinet. With the new early planning phase, which will include outreach with stakeholders, indigenous communities, and others, do you think the time frames are going to be reasonable to get all this done?

I'm looking at Terry only because I know him, but, Francis, perhaps you...?

[Pierre Gratton, President and Chief Executive Officer, Mining Association of Canada]

Thank you very much, Madam Chair and members of the committee. It's a pleasure for the Mining Association of Canada to be with you today.

Members of the committee, I'm mad.

Last week, you heard from Minister Carr, who said:

All projects that are currently under review will be reviewed under the National Energy Board

Even after the legislation is proclaimed, these projects that began under the current system will remain under the current system unless the proponent makes the choice to move to the new one. It would be a decision that the proponent would make.

It makes sense. Such logic befits a democratic country such as ours, where rule of law is respected.

What he didn't tell you is that for mining projects and all others subject to agency assessment, the rule of law will be ignored by this bill. In the case of mining, only projects at the very end of their reviews, awaiting final decisions, will remain under CEAA 2012. All other projects that are any earlier in the process will transfer to the new IA act and essentially start again in some way, shape, or form to be determined by officials on a case-by-case basis, however they think best, at a date we don't yet know.

When we asked why this is, we were told that the government is concerned that there would be projects a few years after the act came into force that would still be governed by CEAA 2012, and that these assessments would lack public confidence. They said they wanted to clean house and bring all assessments forward under one act, to make their workload a little less complicated. The fact that it will make the workload of mining companies wanting to invest billions of dollars in Canada a whole lot more complicated didn't seem to matter.

I ask this committee: Why is it that the government feels there will be a lack of public confidence in mining reviews but not pipelines? Why the double standard in Bill C-69?

Shouldn't the government be more concerned about the lack of international investor confidence in Canada's respect for the rule of law?

To be clear, it is not fear or opposition to the IA act that makes me say this. As will be evident in a minute, we believe that the proposed legislation, implemented well, may result in an improved review process for mining over CEAA 2012. The problem is the uncertainty. Proponents making billion-dollar investments need to know what the rules are and how they will be implemented. You can't have this certainty knowing that the rules may change midstream in some way.

Thus MAC strongly recommends that the committee support the proposed amendment in our submission that would change the transition provisions by amending proposed section 181 so that projects undergoing CEAA 2012 agency assessment will continue under CEAA 2012, but allow the proponent to request transition of the assessment to the IAA or impact assessment act; i.e., the same as for NEB projects.

Now let me turn to comments on the rest of the proposed legislation. A number of measures, implemented well, as I said, hold the promise of an improved review process for mines.

Mining is constitutionally the responsibility of provinces, and each of Canada's provinces has its own environmental assessment regime. In addition to the requirements for building and operating a mine, provinces require companies to develop reclamation plans and provide financial assurance for their implementation. Co-operation with other jurisdictions on project review is, therefore, critical for the mining sector.

Although CEAA 2012 introduced the possibility of substitution to other jurisdictions, in practice this has only been taken up by one province, British Columbia.

CEAA 2012 also introduced legislated timelines, which are critical for industry and the smooth functioning of assessment. However, CEAA 2012's timelines are rigid and have had the unintended effect of making co-operation more difficult and at times unworkable with other jurisdictions that have not pursued substitution.

The proposed IAA maintains timelines but provides for flexibility to better align with other jurisdictions, plus it contains a number of other measures that should improve co-operation with provincial governments. As well, we are encouraged that the proposed legislation provides for extending co-operation with indigenous governments.

There is one notable exception with regard to uranium mines and mills, and that is the one my colleague and friend Liam Mooney just mentioned. I won't repeat what he just said—I think he made exactly the same point I was going to make—except to emphasize that while, as I've just said, there are measures in this proposed legislation that promise to improve coordination for mining projects with other levels of government, it takes a step backwards when it comes to uranium mines and mills. That needs to be addressed in the way that Liam Mooney just outlined. We urge this committee to take that recommendation extremely seriously. It's our understanding as well that this is an inadvertent measure, so I'm hopeful this committee will recognize that and correct it.

Beyond provincial assessments and permitting and federal assessment, many mines require other federal approvals. Inadequate interdepartmental coordination has been a source of duplication and delays for mining for years. MAC, therefore, is encouraged by proposed subsection 13(2) and related provisions, which hold the promise of improved coordination and shorter timelines, though I might add that the different treatment of NEB projects and CEAA suggests there is still work to do to improve coordination between two parts of government.

Perhaps our greatest concern with CEAA 2012 has been how it has disproportionately applied the responsibility for cumulative effects to proposed mining projects and not to the sources of most environmental effects. The project-by-project approach to addressing cumulative effects in CEAA 2012 is dysfunctional, penalizing responsible project proponents while failing to address cumulative effects resulting from activities that are not designated projects under the act.

The mining industry is not the only user of the land base. Its impacts are localized and, on most metrics of environmental effects, dwarfed by other activities.

We're encouraged, therefore, by the approach proposed in the IAA, which includes cumulative effects as a factor to consider in decision-making, but not as a sole factor. The IAA also proposes to strengthen provisions for regional and strategic assessments.

Governments are best placed to undertake cumulative effects assessment on a regional basis. We've been advocating these measures for over 15 years, so we are pleased to see them incorporated in Bill C-69, An Act to enact the Impact Assessment Act.

It is critical, however, that the completion of regional assessments not be a prerequisite to individual project assessments. It would be unreasonable and prohibitive to Canada's investment climate to delay projects while awaiting governments to address all relevant gaps.

It will take many years to complete regional studies across the country, and we can't wait for all of those to be completed before we allow projects to move forward.

Related to these issues is the project list, where mining makes up the vast majority of CEAA projects despite a relatively small footprint. While the revision of the regulations designating physical activities is subject to separate consultations, we are concerned that the IAA will remain arbitrarily and disproportionately applied to mining. Should this be the case, it will hamper our sector while not achieving the sustainability, public trust, and indigenous reconciliation goals the act is purported to advance.

Let me conclude with the following message. Our sector has entered a new period of strong commodity prices, and decisions are being made around the world on where to invest. Unfortunately, pipeline politics and the general politicization of natural resources development, in a country that is a recognized leader in natural resources, are putting our country's future at serious risk.

Canada's relative share of global mineral exploration investment has fallen by half in the past five years, and the number of projects submitted for review has hit record lows since the original CEAA was proclaimed in 1992.

Sadly, most of my members are not choosing Canada right now, and I fear that, unless the situation I described improves quickly, Canada is going to largely miss the current cycle. This will impact a sector with nearly 400 agreements with indigenous communities across Canada, which has become the largest employer of indigenous people and one of the largest clients of indigenous businesses.

Canada is in desperate need of some stability and predictability in the regulatory environment governing natural resources. It is in this spirit that we submit our comments on this proposed legislation. The proposed legislation, while not perfect, addresses some long-standing concerns we've had with federal environmental assessment and some more recent problems we've experienced with CEAA 2012. If implemented well—this is a critical “if”—and if you support our two critical amendments, the proposed legislation could bring some certainty and predictability back to the federal project review of mining projects.

Thank you.

[Liam Mooney, Vice-President, Cameco Corporation, Canadian Nuclear Association]

Thank you, John.

One specific amendment that the CNA would like to propose is on the multiple scoping phases in the proposed process. The planning phase was intended, in part, to improve certainty and predictability by determining the requirements that the proponent would have to meet early in the process. In our view, the bill's process does not achieve that goal.

The proposed bill sets out an initial scoping by the agency as informed by federal authorities, all other jurisdictions, the public, and indigenous groups. However, the bill also allows for two additional scoping phases: one at the sole discretion of the agency, and one by the review panel, which is appointed later. These final two potential scoping phases are well into the process. They could change the scope of the project after the proponent has spent years and millions of dollars to comply with the original scoping decision.

For panel reviews, a “one project, one review” process can only occur if the scoping stage is coordinated amongst the agency, the review panel, and all federal regulators, as well as harmonized with provincial or other jurisdictional requirements. For this to occur, two overarching amendments must be made: first, the chronology of the provisions in the proposed bill must be changed, and second, successive scoping stages throughout the assessment process must be replaced by a consolidated, single, harmonized scoping early in the process, which is led by the review panel.

The CNA would also like to propose an amendment with respect to uranium mining. Similar amendments have been proposed by the Mining Association of Canada and the Prospectors & Developers Association of Canada. More specifically, designated projects that are related to uranium mines and mills, like any other designated mining project, should undergo agency assessments with full access to provisions with co-operation with provinces and indigenous governing bodies.

Uranium mines and mills, like all other mines and mills, are subject to provincial regulatory and permitting frameworks, but they are also regulated by the Canadian Nuclear Safety Commission. Federal environmental assessment legislation has historically allowed the CNSC to co-operate with a province in the ongoing oversight of uranium mines and mills. However, Bill C-69 would preclude this co-operation and prevent agency-led assessments, joint review panel assessments, and substitution for all designated projects that are regulated by the CNSC. As a result, the opportunity for co-operation with a province and using a “one process, one assessment” approach is lost by treating all such projects as exclusively in federal jurisdiction.

There's no justification for such different treatment, because the complexity and impacts of uranium mines and mills are not in a different category from those of other mines and mills. Co-operative assessment processes across jurisdictions increase efficiency and decrease timelines and costs, and should be available to uranium mines and mills. The CNSC, like other federal regulatory bodies, would have the opportunity to be engaged in an agency-led assessment as provided for in the proposed process to encourage coordination within the federal government.

The CNA urges the committee to recommend changes to the provisions dealing with CNSC-regulated projects to permit designated projects related to uranium mines and mills to access the agency assessment provisions of the bill, including the suite of provisions related to co-operation with provinces and indigenous governing bodies. Further, we would propose that mines and mills be specifically excluded from the automatic panel review created by proposed section 43, by adding “other than a uranium mine or mill” after each reference to the Nuclear Safety and Control Act.