As drafted, Bill C-69, the omnibus environmental protections bill, is unacceptable. Here are the minimum six areas that require major amendments:
1) Underlying misconception – Harper hang-over
Harper thought environmental assessment (EA) was slowing down oil sands development and pipelines. This was not the case. In the entire history of EA, only two projects were ever rejected outright, neither of them pipelines. 99.8% of projects were approved with conditions. Under the Canadian Environmental Assessment Act (CEAA), reviews had to begin as early in the planning process as possible and “before irrevocable decisions are made.” From the early 1970s until 2012, EA was understood to be a planning tool and not primarily a “thumbs up-thumbs down,” approval process.
Somehow, the drafters of C-69 were in the grips of Harper-think. The timelines imposed by Harper were maintained – and shortened. There is an unprecedented amount of ministerial discretion throughout the bill, including the power to extend timelines. As such, we can look forward to more, not fewer, abuses of the normal rules for procedural fairness. We saw this in the Kinder Morgan hearings, where the cross-examination of industry experts was ruled out owing to “time constraints.” The public’s right to know how a project will impact the quality of their air and water, the local ecology, and their economic outcomes should not be at the mercy of arbitrary time restrictions, much less the whim of a Minister to override them.
REQUIRED AMENDMENT: Mandatory timelines should be eliminated. An option to allow timelines where the situation requires it should be at the discretion of the agency or the minister, pending a report stipulating their reasons.
2) Triggers: or what gets reviewed?
Prior to Harper’s C-38, approximately 4,000 projects a year were reviewed under the CEAA. More than 90% of the reviews were “screenings.” These were paper exercises over primarily small projects triggered by the “law list.” When those screening revealed larger issues, the study was bumped up to either a comprehensive study (also a paper review) or a panel review (with public hearings).
As the government’s Expert Panel on environmental assessment noted last summer, EA should not be exclusive to large projects. It is important that projects, within federal jurisdiction, big and small be screened.
Harper took an axe to the Navigable Waters Protection Act, the Fisheries Act and the CEAA to reduce 4,000 screenings a year to fewer than a hundred. C-69 keeps the Harper model of very few reviews.
This is accomplished by ignoring the framework of environmental law since the early 1970’s. The 1970s Guidelines Order, the Federal Environment Assessment and Review Process (EARP), was an Order in Council that required federal reviews whenever a project involved federal land, federal money or areas of federal jurisdiction. The legislated CEAA, introduced under former Prime Minister Mulroney and entering into force under former Prime Minister Chrétien, reduced those broad categories to federal land, federal money, and decisions under named pieces of federal law. Over time, the “law list” emerged, and not all federal decisions required review.
Harper created EA where the only “trigger” was being listed on the project list.
Despite clear advice from the expert panel, that, “at a minimum,” reviews should take place whenever proposals involved federal land, federal money, and decisions under named pieces of federal law, the new impact assessment sticks with Harper’s approach. It may even be worse as it is highly discretionary. It precludes reviews where federal funding or federal permitting processes (“law list”) are involved.
REQUIRED AMENDMENT: All projects involving federal land, federal funding or within a list of prescribed federal permit-making “law list” (including under the Navigable Waters Act, the Fisheries Act or the Species at Risk Act) require, at least, a screening.
REQUIRED AMENDMENT: All projects falling within one of the listed “triggers” must receive at least a “screening” as under the pre-2012 CEAA, so C-69 must include amendments to include a paper exercise screening with clear criteria to “bump up” the review to a panel.
3) Who conducts the review?
Prior to Harper’s C-38, all reviews were conducted by the Canadian Environmental Assessment Agency. Energy regulators had no role in environmental assessment. The Expert Panel on EA, commissioned by the Minister of Environment and Climate Change, made a key recommendation: environmental assessment should be carried out by a single agency, empowered with quasi-judicial tribunal authority. The strengthening of EA from its pre-2012 status to an agency with quasi-judicial status was encouraging. It would be a big improvement, but the Minister has ignored it without explanation in Bill C-69.
What must not be abandoned is the principle of a single agency. None of the energy regulators should play any role at all in environmental, or impact, assessment. Yet C-69 would require that there be panel members from the Canadian Energy Regulatory (formerly the National Energy Board), off-shore petroleum boards or the Canadian Nuclear Safety Commission in the make-up of the ad hoc panels where projects overlap with their areas of regulatory authority. This is a betrayal of the single-agency principle, not to mention out-of-step with the international community. Note that after the Deep Water Horizon disaster in the Gulf of Mexico, the U.S. government separated the role of energy regulator from environmental assessment. Now, Canada proposes to do the reverse.
The rationale is that these boards have “expertise.” This is laughable. The Canada-Nova Scotia Offshore Petroleum Board approved seismic testing in the Gulf of St. Lawrence during the time that endangered whales, the Right and the Humpback, were making their transit through those waters. The Canada-Nova Scotia Offshore Petroleum Board and the Canada-Newfoundland Labrador Offshore Petroleum Board have a statutory mandate to expand offshore oil and gas. The National Energy Board had no experience in environmental assessment and clearly was incompetent in the Kinder Morgan review. The Expert Panel and the vast majority of submissions to the consultative process were clear that these boards have no role in EA.
REQUIRED AMENDMENT: The sections requiring the panels to include members of energy regulator boards must be deleted.
4) Indigenous rights
The drafters of C-69 were not as cognizant of Indigenous rights as the drafters of C-68. This is inexplicable. Ideally, both C-68 and C-69 would include reference to UNDRIP, but, at least, C-69 in all three bills (i.e., Canadian Energy Regulator Act, Canadian Navigable Waters Act, and Impact Assessment Act) must include language as strong as that in C-68.
REQUIRED AMENDMENT: In applying this Act, the Minister must adhere to the principles of the United Nations Declaration on the Rights of Indigenous Peoples. C-69 must recognize Indigenous rights not merely as factors to be considered but as rights to be protected under S.35 of the Constitution.
5) The content of participant rights
The Impact Assessment Act in C-69 improves access to participants to the process, but is entirely devoid of specifics as to the content of those rights of participation. The effect could be zero improvement in intervenor participation; allowed in the room, seen and not heard.
To be an improvement over Harper-era EA, C-69 must delineate rights to procedural fairness. This is achieved in toto by accepting the Expert Panel advice that the hearings operate under an agency with quasi-judicial status.
Absent that, as in the pre-2012 CEAA, participants must be granted meaningful rights to participate, including the right for intervenor experts to question industry experts and vice versa. See above, the importance of eliminating timelines.
REQUIRED AMENDMENT: The Act must include an amendment ensuring that participants have the right to present evidence and to cross-examine experts in viva voce (orally), not mere exchange of paper interrogatories. Public rights of participation must be explicitly recognized and not subject to the whims of ministerial discretion.
6) Discretion
Overall, the entire Act is rendered ineffective, bordering on useless, by the extent of ministerial discretion. The amendments I have proposed will help, but in every instance of discretionary Minister or Cabinet power, we need transparent rules for rigorous evidence-based decision-making and better legal accountability mechanisms – “factors to be considered” has no traction in the courts.
Conclusion:
Bill C-69 is very poorly drafted. We have to push for major critical amendments to make the bill acceptable.
The key is to go back to the recommendations of the High Level Expert Panel. Here are some of their key points supporting the points in this memo:
- “Federal interests include, at a minimum, federal lands, federal funding and federal government as proponent as well as Species at Risk, fisheries, marine plants, migratory birds, greenhouse gases, indigenous peoples (etc.)” (p. 18, emphasis added)
- “The IA authority should be established as a quasi-judicial tribunal empowered to undertake a full range of facilitation and dispute resolution processes.” (p.5)
- And at p. 51, described as TRC-like tribunal: “…have time limits and cost controls that reflect the specific circumstances of each project rather than the current ‘one size fits all’ approach.” (p.5)
- Related comment: the CEAA 2012 “imposed unrealistically short timelines for the review of long complex documents by interested parties….It [CEAA 2012] vastly reduced the number of projects subject to review…assessment applies to far more than projects that fill the nightly news…could deal effectively with many less controversial projects.” (p.12)
- Regarding the energy regulators, the panel recommended no role at all for the NEB (CER), CNSC, or the Offshore Boards: “The power to make IA decisions is aligned with the independence of the authority…with regard to projects, the federal system prior to 2012 had decades of experience delegating final authority to CNSC and NEB…” (p. 50-51)