Debates of Feb. 26th, 2015

Bill C-2—Time Allocation Motion

[Joan Crockatt, Conservative, Calgary Centre, AB]

Mr. Speaker, I would like the minister to comment. I find it a bit ironic that we are sitting here in the House hearing from members of the opposition about how they want to limit public debate. If it is a pipeline bill or something, they want unending public consultation, and here is a bill that would move us forward into public consultation mode to actually hear from Canadians on the bill.

I would like the minister to comment on that, please.

[Rona Ambrose, Conservative, Edmonton—Spruce Grove, AB]

I appreciate the member's comments, Mr. Speaker.

That is really the irony of this entire debate by members of the opposition. They opposed the bill right from the beginning, because they wanted the current rules to stay in place. In other words, any applicant could move forward with a supervised injection site, where we know illegal and harmful substances would be consumed by drug addicts, without any consultation with the local police, local health authorities, or local municipal leaders. We do not agree with that, and neither did the Supreme Court.

The Supreme Court ruled in 2011. We have debated this for 12 days, for 20 hours. We have been to committee, both the Minister of Public Safety and Emergency Preparedness and I, and it is time for Canadians to have a voice in this matter.

[Adam Vaughan, Liberal, Trinity—Spadina, ON]

Mr. Speaker, the problem I am having with this is that the government seems to suggest that public hearings are for listening and not for responding. Simply holding public hearings, for other levels of government, means that people get to actually have an impact on a decision. However, when it comes to parliamentary hearings, when it comes to committee hearings, simply running out the clock and presenting a series of statistics on how many hours, how many meetings, or how many minutes of debate were held somehow constitutes a democratic process.

Can the minister highlight one change, a single change, to the bill that was accomplished through the public hearings the government conducted?

[Rona Ambrose, Conservative, Edmonton—Spruce Grove, AB]

Mr. Speaker, the irony is that what this bill constitutes is a change, a major change, to the current process that is now in place. That change allows for public input.

It is ironic that members opposite do not support further consultation. That is what the Supreme Court ruled. It has been, frankly, the genesis of a lot of conflict around this issue, because people have not been allowed to have a voice. They have had no impact. There has been no application process in place where people could actually have input.

I get letters from Canadians all the time. I also get letters from groups that want the bill to pass, because they want to have a voice in this matter.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Speaker, I think this is a farce. We have spent, what, 100 hours over the course of the government's tenure here since 2011 talking about time allocation. That is 100 wasted hours of the time in this House.

We had an all-party committee, where the Province of British Columbia, the municipalities around Vancouver, and the Vancouver Police Department brought in amendments that were consistent with the Supreme Court ruling, and they warned the government that it was intruding in those jurisdictions. This is a government that always says that it cannot do anything for anyone because it is not the jurisdiction of the federal government. Suddenly, it is intruding in jurisdictions, and yet not a change was made.

We need to discuss why the government does not listen at committee stage to anything anyone says. It does not accept any amendments from anyone at all, and then it complains that the opposition refuses to allow public consultation. Everyone has accepted that public consultation should occur. Public consultations went on before InSite was set up in Vancouver, so the minister is not really being honest with everyone in this House when she says that the opposition is opposed to public consultation. We are absolutely not opposed, but we think we should listen to experts and to people who tell the minister what the government should be doing with the bill, but nobody listens in this government.

[Rona Ambrose, Conservative, Edmonton—Spruce Grove, AB]

Mr. Speaker, we have listened to experts. We have listened to the Supreme Court justices. We have listened to health experts, public safety experts, and police members. We have listened to many people since 2011, which is how we drafted the bill.

However, the nexus of all of this is that we also want to hear from regular Canadians about having the illicit use of drugs in a supervised way in their communities.

In terms of jurisdiction, this is an exemption. These establishments only exist because the Minister of Health is able to give them an exemption under the Controlled Drugs and Substances Act, and that is truly within federal jurisdiction. By all means, this is absolutely within federal jurisdiction.

[The Acting Speaker, Conservative, Bruce Stanton]

It is my duty to interrupt the proceedings at this time and put forthwith the question necessary to dispose of the motion now before the House.

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Acting Speaker, Conservative, Bruce Stanton]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker, Conservative, Bruce Stanton]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker, Conservative, Bruce Stanton]

In my opinion the yeas have it.

And five or more members having risen:

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Vote #342

Respect for Communities Act

[The Speaker, Conservative, Andrew Scheer]

I declare the motion carried.

The House resumed from January 26 consideration of the motion that Bill C-46, An Act to amend the National Energy Board Act and the Canada Oil and Gas Operations Act, be read the second time and referred to a committee.

Pipeline Safety Act

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, it is my pleasure to rise to speak to C-46, An Act to amend the National Energy Board Act and the Canada Oil and Gas Operations Act. The government has chosen to name the bill as the pipeline safety act.

The measures to increase liability for pipelines are long overdue and very much welcome. However, there are some concerns that the measures may be inadequate, which I will speak to.

Crude oil petroleum products, natural gas liquids, and natural gas move through 71,000 kilometres of existing interprovincial and international pipelines. That does not include the three proposed pipelines to be regulated by the National Energy Board.

This bill purports to reinforce the polluter pays principle. It purports to confirm that the liability of companies operating pipelines would, first, be unlimited if an unintended or uncontrolled release of oil, gas, or other commodity is a result of their fault or negligence; and, second, be a limited liability to a maximum of $1 billion for pipelines with capacity to transport a minimum of 250,000 barrels of oil per day if there is no proof of fault or negligence.

The bill purports to obligate pipeline operators to maintain the financial resources necessary to cover potential liability. It also purports to authorize the National Energy Board to reimburse government entities for any costs incurred in a spill response.

It purports to improve responses to abandoned pipelines. That is a new measure, as the National Energy Board previously was not regulating abandoned pipelines. It also expands that responsibility to inquire into accidents involving abandoned pipelines. It purports to grant discretion to the National Energy Board to require companies to maintain funds for abandoned pipelines.

It also purports to empower cabinet to establish a pipeline claims tribunal in certain circumstances. The tribunal would examine and adjudicate compensation claims. It also authorizes spending to respond to spills, to establish the tribunals, and to pay for compensation awards that are issued by the tribunal. Furthermore, it authorizes the National Energy Board to recover funds paid out by the government as opposed to the company.

It expands on the polluter pays principle by imposing liability on operators for losses to non-use value of public resources. However, it limits the power of the federal Crown to pursue those, and there is some concern expressed at how seriously the National Energy Board will pursue that.

Mr. Speaker, I wonder if I could interrupt. The minister is having a conversation with another member and I am having a very hard time hearing myself talk. I wonder if they could be asked to move it outside.

[Some hon. members]

Oh, oh!

[The Acting Speaker, Conservative, Bruce Stanton]

Order, please. I realize there are several conversations going on in the House. Obviously, when a member has been recognized and has the floor, we ask the indulgence of all members to bring their attention to the speaker who has the floor, who at the moment is the hon. member for Edmonton—Strathcona. Therefore, I would again ask all members who wish to carry on conversations if they might leave the chamber and carry on outside in their respective lobbies.

The hon. member for Edmonton—Strathcona.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, thank you very much. I asked for your intervention because I believe this is a very important piece of legislation and it is important for us to understand what the bill is and is not doing.

As I mentioned, the bill expands on the polluter pay principle, a welcome intervention, by imposing liability on operators for losses to non-use value of public resources, but it limits the power to the federal crown to pursue compensation for those impacts, and there is some concern that the National Energy Board would not necessarily seriously pursue compensation.

It expands the National Energy Board's powers to order actions by the companies where there are risks to safety or security of the public, to the company employees, or to the pipelines or abandoned pipelines, and for protection of property or the environment.

However, it may noted that the recently tabled estimates for 2015-16 provide for reductions in the budget of the National Energy Board for the regulation of pipelines contributing to the safety of Canadians and the protection of the environment. So much for the touted equal attention to supporting resource development and environmental protection. No additional resources will be allocated for the ongoing mandate and no additional resources for the added mandate of the NEB for abandoned pipelines.

Natural Resources is also apparently being cut by $320 million across the board, or 12.6% of its budget. Surely, given the potential payouts under Bill C-46, this is not the time to be paying down the deficit on the backs of the communities impacted by spills.

There would be greater confidence in the commitments of the government to address the impact if a contingency fund were set aside. That will become apparent later in the discussion of the bill, as taxpayers may be left holding the bag under this law.

The Canadian Environmental Protection Agency is also forecast to be cut by $13.6 million or 44% of its budget. A significant portion of its budget has previously gone to supporting aboriginal consultation. Many of these pipelines go through first nation lands, which are already designated as these lands or are being claimed.

Given the number of resource projects proposed and the fact that the NEB does not adequately deliver on public participation in decision-making, it is impossible to understand how the government will fulfill its duty to consult indigenous peoples and how any project will obtain the social licence needed to operate.

Yes, we recognize that these budgets may well be supplemented through the supplementary estimates, but it is astounding nonetheless that at the same moment we are debating a bill touted to improve pipeline safety, the government tables estimates providing no increased funds to deliver on the expanded mandate of the National Energy Board, the tribunal, and for the government to address spill compensation, let alone the coverage of spill clean-up costs.

This is troubling on a number of fronts. The scale of potential risks and the potential impact from major increased daily volumes have increased, in particular given the nature of the products proposed to be piped, in other words, diluted bitumen. First, the Enbridge gateway pipeline proposes 525,000 barrels a day. The Kinder Morgan Trans Mountain expansion would add 890,000 barrels a day, and the TransCanada energy east pipeline, if approved, would add 1.1 million barrels a day.

One can only hope that the intent is to retroactively apply these higher liabilities for pipelines already approved prior to the passage of this law. This law should be triggering significantly enhanced inspection and capacity to respond to breaks and spills as well. This is important given the poor record by the National Energy Board and the pipeline operators in detecting pipeline breaks and spills or in seeking compliance.

The majority of pipeline accidents of late in my province of Alberta and in the Northwest Territories have been discovered and reported, by and large, by citizens or aboriginal hunters and trappers out on their lands, not by the National Energy Board or provincial regulatory agencies, or by the companies themselves. For example, there was the incident in Wrigley.

I had an opportunity to see this when attending a Dene gathering in Fort Providence a couple of years ago, where a hunter came to the meeting and revealed that when he was out on the land, he was sitting down by a marsh and suddenly a bear appeared. There did not seem to be anything he could do to make the bear go away. He would scare the bear away and the bear would come back. So he finally decided that he would investigate what was happening with this strange behaviour of the bear. He discovered a major break in a pipeline and a massive spill. That is one example where the operators are simply not detecting, reporting, and apprising the people on the land of accidents.

In addition, in this case, we had to step in and demand support for the first nation community, which was trying to address the impact of this spill. If we had not done that, the National Energy Board would not have stepped forward.

I could go on and on about the incidents with pipelines in Alberta. For example, there was a spill from the Plains Midstream pipeline near Sundre, Alberta, into a river, then into a drinking water reservoir. It was not reported to the impacted landowners.

In April 2011, there was the largest pipeline spill in history, again by Plains Midstream, with 4.5 million litres of oil spilling northeast of Peace River. Again, that was detected by the Dene Tha' First Nation and not the operator. They ended up having to close the local school because of the fumes from the petroleum. The first nation was deeply concerned about the impacts on the waters, fish, birds, and wildlife they relied upon, and concerned about the many abandoned wellsites and pipelines. That, of course, is an example where, if the first nations are not able to seek compensation for impacts on the waters, fish, birds, and wildlife they rely upon in their habitat, it will become an issue if the government does not step up to the plate.

Again, I remind this place of the Wabamun derailment and spill. Yes, it was not a pipeline, but it took a week for the federal agencies to actually come forward and assist the first nations directly impacted by that incident.

What are some of the concerns that have been identified with the bill? There are some additional concerns with respect to many of the reforms in Bill C-46, including expanded powers and new rights.

The reforms themselves are welcome, including expansion to abandoned well sites, expansion of liability, and the increase in the liability to $1 billion. However, there are some concerns with the way the bill as drafted; for example, with the adequacy of the upper limit of $1 billion. We can all recall the Kalamazoo bitumen spill cost $600 million merely to clean up the spill, and that was before any compensation was given to any of the communities or property owners who were impacted.

Ecojustice has stated that the bill would fail to prescribe mechanisms to actually assess the risk, taking into consideration either the type of materials shipped, whether they are more corrosive, for example: the potential for environmental, and, I would add, health, damages; an accident or compliance history; and the age of the line and, I would suggest, also the maintenance record.

There is no provision in the bill specifying what the National Energy Board is supposed to consider, or the tribunal once it is established.

Second, concerns have also been raised about bankruptcy implications. There is a concern that the polluter pay provisions may be superseded in the case of bankruptcy of a pipeline owner or operator, as bankruptcy law prevails. That is something that merits discussion at committee.

Third, there is concern with the level of discretion vested in the National Energy Board and in the tribunal. There appears to be a discretionary, potentially politically influenced, process. For example, the company must first be designated before the tribunal may review.

It is also not clear whether there would be a permanent tribunal and whether its members would simply sit around, waiting for a pipeline to be designated, or a company designated, or whether it would only step forward at the time that there is an incident and compensation claims are required.

This would also only occur in a situation where the cabinet, in its discretion, has determined, on the recommendation of a minister, that a company does not have sufficient resources to pay costs or clean-up, or the company has failed to comply with an NEB order.

The National Energy Board could then directly reimburse for the impacts or the costs incurred, and the payment could be directed from a pooled fund. The costs could be recovered as a debt, but that is unlikely from a bankruptcy.

The tribunals would be established only, as I said, where a company is designated; in other words, for each incident, not permanently designated.

Proposed subsection 48.18(2) is a little confusing. It states that the Governor in Council, in other words, the cabinet, could only establish a tribunal if it is in the public interest, somehow factoring in the extent of the compensable damage. It is unclear if the concern is with too small a claim or a very large one.

The tribunal would be granted total discretion in how to notify the public. It has been suggested by a number of parties who have participated in other tribunals that there should be clear guidance on who is actually supposed to notify the public that they can seek a claim for damages and how they would go about doing that.

There is also the query of why only the appointment of retired judges. In many cases in these tribunals, it is perhaps more appropriate to appoint people with a technical background who understand pipelines, the impacts and so forth.

The reason this issue has been raised is because the staffing and expertise for the tribunal is at the discretion of the National Energy Board. However, there is no certainty that there will be some form of secretariat with the appropriate expertise to assist the tribunal in its determinations.

It is encouraging that the cabinet may make regulations authorizing the tribunal to award fees, travel and other costs for claimants to present their case. However, that will be by regulation, and it is not clear what the timeline is on the issuance of those regulations to set the guidance.

It is noted that the regulations could fix a maximum compensation, but we do know what factors that is based on, as mentioned earlier. Perhaps it would be a good idea to actually provide criteria for calculating the costs of the impacts.

The imposition of fees, levies and charges for payouts can be drawn from the consolidated revenue fund. However, there is the issue and concern of how seriously the funds will be pursued from the operator or whether there will be reliance on public funds.

The National Energy Board would be empowered to issue regulation-setting rates, but there is no mention of consultation with either the pipeline operators or the public on how it will set those rates for the levies and fees. It will be important for the National Energy Board to report regularly on its efforts to recover the debts incurred or spill cleanup for compensation. However, there is no mention in the bill to that effect.

Regarding cost advances to file claims, it is unclear if the law would allow for the payment of advanced funds to address or cleanup a spill, or if it would also allow for advances to people who would seek compensation to hire lawyers, experts and so forth, which is very important in procedures before a tribunal.

Increasing concerns are being expressed within communities and first nations with the approach to regulating pipelines arising from failed spill prevention, failed detection, failed response to spills and the failure of the National Energy Board or other government agencies to require pipeline proponents to disclose their emergency and spill response plans for public review and scrutiny.

This certainly has arisen in the review of the Kinder Morgan proposed trans mountain pipeline expansion. People along that line are very concerned that they are not getting access to the emergency spill response plan.

The same is the case with the Athabasca Chipewyan First Nation with a review of a pipeline in Alberta. It eventually pulled away from an Energy Board review because it was denied access to that emergency spill response plan for a pipeline and then given less than 24 hours to review the document.

The Alexis First Nation in Alberta has also been demanding greater access to information on the spill from breaches of mines.

The preference of Canadians is the prevention of harm to their communities, the environment, and not mere compensation after the fact. As the expression goes, “Mieux vaut prévenir que guérir ”.

The improved measures provided under Bill C-46 will be welcomed and will offer succour to those impacted by major spills. However, that is unlikely to be sufficient to restore trust in the government or in the National Energy Board in the wake of denied access to potentially impacted communities and first nations of emergency spill response plans, the downgrading of federal environmental and fisheries laws, and the diminished opportunity for public first nations to participate in pipeline reviews.

Frankly, in the National Energy Board and provincial energy reviews, there have been many concerns raised. I gave the example of the Athabasca Chipewyan First Nation, which is extremely disturbed that the pipeline will go through its traditional lands, not having access to major documents.

The change to the National Energy Board intervener rules would limit participation. I gave the example of where the previous minister of Natural Resources dubbed “interveners” in the review of pipelines as “radical groups” who “hijack our regulatory system to achieve their radical ideological agenda”, merely because they sought to intervene to raise concerns with pipeline projects.

Concerns have been expressed by the Commissioner of the Environment and Sustainable Development in his 2011 report regarding the long-standing failure by Transport Canada and the National Energy Board to ensure compliance or corrective action, and the failure of the NEB to review emergency procedures of 39% of regulated companies. Absent of increased resources, there is little confidence this will be addressed in a timely manner.

Yes, Canadians recognize that they rely on fossil fuels for use, benefit from revenues from sale and export, and that pipelines are needed to transport the fuel. However, it is reasonable for Canadians to expect their government to regulate the sector in a manner that ensures the protection of their health and environment.

[Greg Rickford, Conservative, Minister of Natural Resources and Minister for the Federal Economic Development Initiative for Northern Ontario]

Mr. Speaker, one would think that one's hypocrisy could only go so far, but it appears not. That discourse was not only free of statistics and quantitative and qualitative evidence, it was fact-free as well.

It is worth pointing out that in the past decade more than 72,000 kilometres of federally regulated pipelines boast a safety record of 99.999%. These pipelines account for 6,000 jobs and $7 billion in annual sector revenue.

It is even more astonishing coming from that member. Here are some interesting facts. The member voted against increasing pipeline inspections. She voted against doubling the number of comprehensive audits. She voted against implementing fines against companies that would break the law.

In fact, I would bring to the attention of the House the comments she made during her speech regarding the Plains Midstream spill. That company was fined by the National Energy Board on February 12.

Why did that member vote against the very things she has tried to advocate for in her speech.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I welcome that question. The hypocrisy is all on the side of the minister.

As he well knows, the measures to improve the environment to better regulate the oil gas and sector were included in the government's omnibus budget bills. No matter how many times we requested the division of those bills so they could be debated and voted on separately, they were refused. The hypocrisy is all with the government.

Our party has continuously called for improved measures and greater seriousness in delivering on what the government calls responsible resource management. It professes that it gives equal attention to environmental protection as it does to resource extraction, but that is far from the truth and far from the matter before us.

As the House is aware, I simply quoted the flaws and the problems identified by the Commissioner of the Environment and Sustainable Development. I rest my case, and the response needs to be to the commissioner on the failure to adequately follow up.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I thank my colleague for her excellent speech. I am honoured to serve with her on the Standing Committee on Natural Resources.

I will have the pleasure of giving a speech on Bill C-46 this afternoon, but I would like to ask my colleague a question about liability. The bill limits liability to $1 billion in the case of a disaster caused by a pipeline where there is no proof of fault on the part of a company. Why did the government choose that amount? In Kalamazoo, in the United States, costs have already reached an estimated $1.2 billion, and only a tiny proportion of the mess has been cleaned up.

Why did the government peg liability at $1 billion? Would it not be better to set a higher amount? That seems to me to be nothing more than a round number.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I would like to thank my colleague for the terrific role he plays as the critic for natural resources. It is a pleasure to work with him in that role.

I can not answer why the government has chosen $1 billion. Canadians will be pleased that we have gone from, I think, $50 million before to $1 billion. Simply doing it as a one-off for offshore activity, shipping and so forth is inadequate. We are glad the government is coming forward with a larger sum to potentially recover after a pipeline spill.

There is a measure in the bill wherein the discretion of the cabinet could opt to increase that amount, but again there is no criteria given for when it might opt to increase that amount. Again, that topic merits discussion at committee. There is potential for an amendment to the bill to provide criteria either by regulation or within the context of the legislation in those incidents where we would require more than $1 billion, not only to clean up the spill but to provide compensation.

[Michelle Rempel, Conservative, Minister of State (Western Economic Diversification)]

Mr. Speaker, with regard to the question just posed to the member, there is a bit of a false dichotomy in terms of the comparison. In the example that was cited, the operator was found to be at fault. This legislation enshrines findings that have been put forward in case law to ensure there is unlimited liability in cases where things are found at fault.

Therefore, would my colleague clarify that this example is not a correct application of what she has put forward?