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.

Impact Assessment Act

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, yesterday, at the northern and aboriginal affairs committee, we had natural resources officials there. We are currently studying Bill C-262, on the implementation of UNDRIP and how all Canadian law is going to have to live within the framework of UNDRIP. We asked the natural resources officials if they had considered whether Bill C-69 lived within that framework, and they had not. That was their answer.

I am just wondering if free, prior, and informed consent is to be held at all levels, particularly legislative, but also if the member thinks that Bill C-69 meets that threshold of free, prior, and informed consent.

[Julie Dzerowicz, Liberal, Davenport, ON]

Mr. Speaker, at the base of this bill is the recognition of and respect for indigenous rights. I think that is consistent with what UNDRIP is about.

The bill would require the involvement of indigenous peoples throughout an assessment based on the recognition of and respect for their indigenous rights. As well, it would provide for co-operation with indigenous jurisdictions undertaking their own assessments.

I have full confidence that there is not only enough consultation with indigenous communities right across this country but that there is very much valuing and respecting their rights.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Mr. Speaker, we have here before us a 341-page omnibus bill. It is the biggest bill to come before this Parliament in years, maybe in decades, on environmental protections, and the government has moved closure after two hours of debate.

The NDP has only had two speakers on this bill and may not get another one. I am just wondering what the member can say to that. She is going on about how important this bill is, yet we are not able to fully debate this bill here in this House at all.

[Julie Dzerowicz, Liberal, Davenport, ON]

Mr. Speaker, I do not agree with the premise that it is an omnibus bill. I think it is a very comprehensive bill, because it is actually changing a number of acts. It is changing the Canadian Environmental Assessment Act, the National Energy Board Act, the Navigation Protection Act, and a number of other acts that are consequential to it. It is comprehensive. It needs to be comprehensive.

We spent two years consulting on this. Once it moves from this House, there will be opportunities for members of all parties in this House to have input at committee and when it comes back to this House. There will be a number of other opportunities for members to have input.

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

Mr. Speaker, the member just spoke about the consultation process our government has gone through. Maybe she could expand on that consultation process and how extensive it was.

[Julie Dzerowicz, Liberal, Davenport, ON]

Mr. Speaker, we spent a couple of years on this consultation process. It actually comprised four complementary reviews. It was extraordinarily comprehensive. Not only did we go across the country, we also made sure to get comments online.

I know that the residents of Davenport definitely participated. There were a number of letters they sent in and a number of messages sent through me to the minister.

I have a lot of confidence in the consultation process. I have a lot of confidence that we took into account what we heard, and we crafted the very best bill based on those consultations.

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

Mr. Speaker, I rise today on the traditional unceded territory of the Algonquin people, and thank them for their generosity. Meegwetch.

I also want to thank the hon. member for Davenport for splitting time with me. The circumstances are not those that led me to feel particularly relieved or happy, but I am grateful for the civility of giving me 10 minutes. Otherwise, I would not be able to speak at all, because of the egregious use of time allocation on an omnibus bill. I never expected to see omnibus bills with time allocation after the change in government.

This is three bills put together: the National Energy Board Act changed, the Navigation Protection Act changed, and the Environmental Assessment Act overhauled. The fourth piece that had been running along in tandem, through the great judgment of the Minister of Fisheries, is Bill C-68. It stands on its own, and it is an excellent piece of legislation.

However, with the time available to me, I am going to be able to speak only to the impact assessment piece of this omnibus bill, which I am afraid falls below any standard of acceptability and should trouble deeply any Liberal who stood in this place and voted against Bill C-38 in the spring of 2012. We stood together with every single Liberal MP and every single New Democrat against the destruction of decades of environmental law. How that process has been captured by the same mentality, values, and principles that led to Harper destroying these acts, so we now have a repackaged version of those same principles of eroding environmental assessment, is something that the Liberal caucus should try to figure out. I hope it will lead to changes in committee.

With the time available to me, I will quickly review my background in environmental law. I happen to be an environmental lawyer. It is an even weirder fluke that when I was 22 years old and a waitress and cook, I participated in the very first environmental assessment panel hearing in Canadian history, in 1976. It was in Cape Breton. It was about the Wreck Cove hydroelectric plant. I have participated in dozens since.

Ten years after that, I was in the office of the Minister of the Environment. I was actually a senior policy adviser, the person who took the quest from Environment Canada from a wonderful senior civil servant named Ray Robinson, who headed the Canadian Environmental Assessment Agency in those days, and we took to the Privy Council Office the request to legislate. Up until then, we had been operating under a guidelines order that required environmental reviews, but it was a bit uncertain in its full rubric. Some people thought it was a guideline and therefore was not binding. We got permission to legislate. Subsequently, I resigned from my job with the Minister of the Environment when the minister violated the environmental assessment review process guidelines in approving dams without permits.

This is just to say that I did not only recently come upon my commitment to proper and thorough environmental assessment in Canada. It is non-partisan and goes back decades.

Now, what happened under Bill C-38 was the repeal of our environmental assessment process and its replacement with a rather bogus process. We can compare Bill C-69 to the bogus process in Bill C-38 in 2012, or we can compare it to what is needed. It is all well and good for the federal Liberals to say to us today that they did a lot of consultation. It is true. There were 21 cities with public hearings, and over 1,000 people showed up to a superb expert panel on environmental assessment. The question before us today is why their recommendations were ignored.

I am going to read, one at a time, the recommendations that were ignored. There are many. In previous debate in this place, when the bill was first put forward, the Parliamentary Secretary to the Minister of Environment claimed I was wrong in my assertion, which I think is fact, that the environmental assessment expert panel was ignored. It is really important to understand the point of environmental assessment. I will just go back a bit and say that this is one of the pieces of Harper-think that have survived into Liberal-think.

Environmental assessment has never been about a green light or a red light, yes or no, or whether the project goes ahead or not. It is primarily a tool for good planning. In the entire history from 1976 to 2012, when Harper repealed the act, only two projects were ever given a red light. I will say that again. From 1976 to 2012, with the thousands of environmental reviews that were done, only twice did a federal-provincial environmental review panel say that a project was so damaging that it could not be mitigated and the panel had to say no.

It has primarily been about studying a process thoroughly, studying a project thoroughly, and deciding that we can mitigate the damage if only the proponent would agree to better scrubbers or change the location slightly. In the course of the review process, many projects were improved, the damages mitigated and reduced, and in the end a much better project was accepted. This has never been primarily about how to get to yes or no faster. That is what Harper thought, and apparently that thought process has somehow infested some ongoing decision-making process within government. An environmental assessment is about good planning.

Until 2012, the Environmental Assessment Act said that the purpose was to get in and review a project, “as early as is practicable in the planning stages of the project and before irrevocable decisions are made”

Let me quote what we heard from the expert panel on what an environmental assessment should contain. It did agree that it should be called “impact assessment”. That is one piece they could claim.

Page 5 states that the impact assessment authority “should be established as a quasi-judicial tribunal empowered to undertake a full range of facilitation and dispute-resolution processes.” This has been ignored. Members have heard about the expert panel the government sent around the country, with a thousand people participating and with 800 submissions. Their recommendation was not to have ad hoc panels where people are pulled in, with different projects always having different panels, but to develop expertise through a quasi-judicial tribunal. Ironically, this was also the advice from the red book Liberal platform of 1993.

The second point is to have time limits and cost controls that reflect the specific circumstances of each project, not the current one-size-fits-all approach, which was an innovation under Bill C-38. This is a key point. Projects need to be reviewed whether they are big or small. The effect of Bill C-38, which Harper brought in, is this. The previous era had seen approximately 4,000 projects a year reviewed, most of them with paper-screening exercises that did not take much time. After Bill C-38, the number shrank from 4,000 a year to fewer than 100 a year. The Liberals have gone with perpetuating the fewer than 100 a year. This is how they have done it, by ignoring this advice.

The panel stated that there should be a review when there are federal interests, and that “federal interests include, at a minimum, federal lands, federal funding and federal government as proponent, as well as”, and then there is a list: species at risk, fish, marine plants, migratory birds, indigenous issues, and so on.

This piece of legislation ignores anything except the project list. That was an innovation of Bill C-38. There are no law list reviews requiring that if the navigable waters act or the Fisheries Act requires a permit from the minister there be a review, and no requirement that when federal money is spent there be a review. That is the advice the government got from its expert panel, which it ignored.

The expert panel also said clearly that there should be no role at all for the National Energy Board, the Canadian Nuclear Safety Commission, or the offshore petroleum boards. It pointed out that “the federal system prior to 2012 had decades of experience with delegating final decision-making to the Canadian Nuclear Safety Commission...and the [NEB]” without those agencies meddling in the environmental assessment.

What is happening under Bill C-69 is like a shell game. We are told it is one independent agency, except that when it is reviewing pipelines the panel must be comprised of people who are sitting members of the NEB, now called the Canadian energy regulator. If they are reviewing offshore petroleum operations in Atlantic Canada, the panel members must come from the offshore petroleum boards, which by legislation are required to expand offshore oil. It is an embedded conflict of interest in the legislation.

The atrocities continue, with respect to indigenous rights. How is it that the Minister of Fisheries can put before us Bill C-68, which has strong language to protect indigenous rights? Bill C-68, in section 2.3, “Rights of Indigenous peoples of Canada”, makes it clear that the act cannot derogate from indigenous rights. Section 2.4 states that it is the duty of the minister when making a decision to “consider any adverse effects” on the rights of indigenous peoples.

This piece of over-discretionary political masquerading of environmental assessment in Bill C-69 merely states that “the impact that the designated project may have on any Indigenous group” is a factor to be considered. As a former litigator, I can tell members that the courts do not regard indigenous rights as a factor to be considered as protecting indigenous rights.

This bill gets an F. At committee, let us please get it to a C+.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I do not question the member's passion on the topic. In fact, she has illustrated well the degree of her involvement on this file.

Having said that, I think there is an expectation that the government have a process in place that incorporates legislation that recognizes there is an indigenous factor, an environmental factor, and an energy to market factor, which have to be taken into consideration in terms of the needs of Canada going forward.

Would the member not, at the very least, look at this? On the one hand, the Conservatives are saying that we have gone too far. On the other hand, the NDP and the leader of the Green Party are saying that we have not gone far enough.

At the very least, let us allow the bill to go to committee. I understand the member's concerns with regard to speeding this through. I can assure her that if it were up to some members of the House this legislation would never pass the House. Unfortunately, at times, time allocation is a tool we require.

Would the member not agree that at least it is a step forward, perhaps not the leap she would like to see, but a step forward?

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

Mr. Speaker, my commentary is not based on what I would like to see as an environmental activist. It is a public policy question of whether it is good legislation. It is, objectively speaking, not good legislation. It is so wide open to discretion. One might say, “Well, look at our current Minister of Environment. One can't imagine her ignoring indigenous rights and plowing something through.” However, legislation is for all time, for different governments. Even if I thought that there was no chance in a million years of any misuse of discretion by the current government, why would I sign off on a piece of legislation that is so deficient, empirically speaking? It is not good legislation.

[Ziad Aboultaif, Conservative, Edmonton Manning, AB]

Mr. Speaker, I listened to the speech of the hon. member. She is definitely very experienced in green energy, and the environment in general. She mentioned the pipelines. She mentioned balance and indigenous communities. How does she envision a pipeline going anywhere, west or east, in Canada with the balance to get the pipeline going through? Where does she see the balance in order to get pipelines through Canada, either to the west coast or to the east coast?

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

Mr. Speaker, I think it is a question of looking at the evidence and having a full, impartial hearing where witnesses can be cross-examined, assertions can be tested, and the truth can be determined.

In the case of pipelines, I am not against any particular pipeline. The question is always what is in it. If it is a pipeline with bitumen and diluent, it cannot be cleaned up. Should we wish to build a pipeline to bring more B.C. wine to Alberta, I am all for it.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, I will not get distracted by the idea of a pipeline filled with great B.C. wine, as much as Canadians would probably like to see that happen.

My question for my friend is both on the process and on the substance. The Liberals promised not to bring in omnibus legislation. The Speaker of the House has determined that to be this. After two hours of debate, the Liberals brought in time allocation, shutting off the conversation, when they promised they would not do this.

I suppose we need to bring this into the real world, and here is my question for my friend on the substance. The Prime Minister, when campaigning for the job, said that the Kinder Morgan pipeline, for example, had been put under a bad review and that he would put it under a proper review. If the Prime Minister had done his job and actually subjected that project to review, the plan for the diluted bitumen to go to Vancouver, would the premier of British Columbia have to do the makeup work after the fact, after the approval process, to find out things such as how one handles a spill of diluted bitumen, either in fresh water or in salt water?

If the Prime Minister had followed through on his commitment to have good legislation go through a decent process, and that projects would be reviewed properly, would we be in the circumstance we are in, with the conflict with first nations people and the people of British Columbia, and now the Government of Canada?

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

Mr. Speaker, the hon. member for Skeena—Bulkley Valley is absolutely right. To me, the question suggests its own answer, which is that had we not been put through a process that is not part of that history of environmental review that I reviewed, the National Energy Board had no expertise in doing reviews.

This allows me to mention another carry-over bad aspect of Bill C-38 into Bill C-69. The time limits that were put into Bill C-38 are how the National Energy Board determined that it would not allow people like me as an intervenor to cross-examine Kinder Morgan's witnesses, which led to an abuse of process and not really getting to the facts of the matter.

That aspect of time limits has not only been continued in Bill C-69, but the time limits have also been shortened.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, I am going to be splitting my time.

I rise to speak to Bill C-69, a massive 400-page omnibus bill. Canadians will remember during the last election when the Prime Minister put his hand over his heart and made the solemn declaration to Canadians that he would never ever introduce anything resembling an omnibus bill, but here we are yet again with another omnibus bill from the government.

It gets even worse because the government has seen fit to invoke time allocation after two hours of debate. The government has invoked time allocation after just two hours of debate on a massive, complex bill that is going to rewrite the environmental assessment process, and that is going to have a profound impact on jobs and the economy. I say shame on the government for doing that.

In the short time that I have to speak to the bill, I am going to be focusing on part 2 of Bill C-69, this massive omnibus bill. Part 2 establishes a new approval process for energy projects, including pipelines. It is going to have a profound impact on my province of Alberta and thousands of my constituents who live in St. Albert and northwest Edmonton whose jobs are tied directly or indirectly to the energy sector.

The Minister of Environment , in speaking to Bill C-69 in this House, said that the objectives of the bill include improving public confidence in the approval process, strengthening investor confidence, making the energy sector more competitive, growing the Canadian economy, and creating good, middle-class jobs. That is what the minister said. Who could disagree with those objectives? Those are laudable objectives.

The only problem is that Bill C-69 will achieve none of those objectives. Rather, Bill C-69 is about keeping energy in the ground. That is what Bill C-69 means. I know that for the Prime Minister's principal secretary and chief political strategist, Gerald Butts, keeping Canadian energy in the ground is something he has long fantasized about.

Bill C-69 means gutting an assessment process based on science and evidence that balance environmental and economic issues with an assessment process that is politicized from top to bottom. How is the process politicized from top to bottom?

Let us start with who gets to make submissions to the regulator. Who has standing? Presently, in order to have standing before the National Energy Board, one must be impacted directly by a project, or one must have relevant knowledge or information about a project. Bill C-69 eliminates that criteria and replaces it with any member of the general public.

This means that it is open season. It is an invitation to Gerald Butts' friends and the Minister of Environment 's friends, and for the radical anti-oil sands movement to take over the process, to control the process with their ideological and political agenda to shut down Alberta's oil sands, a movement that is funded by U.S. money, filled with activists who are in many cases nothing more than shills for foreign interests.

The Minister of Environment says that is going to restore public confidence in the assessment process. What it is really going to do is completely politicize the process and result in delays in the approval process.

The Minister of Environment says that we should not worry about delays, because Bill C-69 is going to streamline the approval process, that it is going to reduce the time to see major projects approved. When the minister makes that assertion, she is conveniently overlooking the fact that Bill C-69 would impose a planning process before the assessment process begins. The planning process would be a six-month process, 180 days. When that is taken into account, it will not reduce the time; it will add about 100 days to the time in which a project could be approved.

If all we were talking about was an additional 100 days, we probably would not be having this debate, but it gets worse. The minister, on the basis of a political whim influenced by George Soros funded activists, can extend the timeline. She can extend the delay.

It gets even worse than that. The minister can kill a project at the planning stage before any scientific analysis is done, before any environmental analysis is done, before any economic analysis is done. In other words, the minister can kill a pipeline project purely on the basis of a raw political decision.

The minister says that this is going to increase investor confidence. Is that some kind of a joke? It is not going to increase investor confidence. It is going to do the opposite. It is going to drive billions of dollars of investment south of the border and to other energy-producing jurisdictions that allow their energy sectors to grow and thrive.

Make no mistake about it. If Bill C-69 is passed, not one major energy project will be approved in this country. Before another major pipeline project is killed, it is imperative that this Parliament kill Bill C-69.

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

Mr. Speaker, I find it interesting that the NDP says that the government is not doing enough and the Conservatives say that the government is doing too much. That tells me we have found the right balance in this bill.

It is really rich to hear from members on the other side, the ones who gutted environmental regulation, who gutted staff at Environment and Climate Change Canada.

Has there ever been an environmental regulation that the member actually liked?