Bill C-69 (Impact Assessments) - Second Reading
Honourable senators, I rise today to speak to Bill C-69, 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.
I will begin by thanking Senator Mitchell for his hard work in sponsoring this important bill.
Let’s start with the government’s objectives. What do they tell us about this bill? They say it is legislation designed to deliver better rules for the assessment of major projects, to protect the environment, fish and waterways, and rebuild public trust in how resource development decisions are made, while providing certainty for industry and investors.
Let’s start by looking at the genesis of the legislation. In 2016, the government created an expert panel to review Canada’s environmental assessment processes, with the objective of restoring public trust in environmental assessments, to improve review processes and to get resources to market. The panel published its report in 2017 and made a number of recommendations that formed the basis of Bill C-69.
The panel visited 21 cities across Canada and heard from over a thousand participants, including almost 400 presentations from provinces and territories, NGOs, industry, experts and Indigenous groups. It took an extensive look at environmental assessments and drafted its recommendations based on what was heard from stakeholders.
Essentially, the panel tells us the policy pendulum, it believed, had swung too far. This was a reference to the Canadian Environmental Assessment Act, 2012 — or CEAA — implemented by the previous government. The panel states that:
While CEAA 2012 improved EA processes for some, it also sowed the seeds of distrust in many segments of society: it imposed unrealistically short timelines for the review of long, complex documents by interested parties; it vastly reduced the number of projects subject to review; and it placed more accountability for some assessment decision-making in the political realm.
I emphasize that came from the expert panel.
The 2017 panel set out to find middle ground between the practices of the 1990s and those set out under CEAA 2012. Having taken a look at the report, I believe the review panel has found a reasonable balance. However, we’re at the beginning of the process. At the end of the day that determination will be a collective one, by all of us.
So what does the bill do?
First, there is a clear intention to replace the silos that exist under CEAA 2012. Yes, I’m talking about silos again. For each project, there would be one integrated assessment led by the proposed impact assessment agency, or the IAA. Authority over projects would be consolidated in the impact assessment agency. There would no longer be three responsible authorities — reminiscent, again, of our discussion yesterday about siloed organizations.
Second, it introduces a new and early proactive planning phase. This is probably the most important element in this legislation, from my perspective. All proponents would be brought to the table during this planning phase to present information, establish a plan, and resolve any conflicts at the outset. This includes regulators, government officials from both federal and provincial jurisdictions, Indigenous leaders, and representatives from industry. There is encouragement for greater collaboration between stakeholders.
This is an important change. Under the current system, it seems most significant delays in the process often result from insufficient upfront planning and discussion. There is little incentive under the current system to identify key stakeholders and bring them to the table; neither is there an upfront focus on identifying potential issues and opportunities.
Under the current process, it is not usual for government departments, local stakeholders or other organizations to raise issues later in the process, resulting in considerable delays. I’ve seen this first-hand at the provincial level, where a government department, a ministry, will raise its hand relatively late in the process and introduce new concerns and considerations. That’s not to say there shouldn’t be an opportunity for that, but it shouldn’t be a regular way of doing business.
The proposals in Bill C-69 would turn this process on its head by ensuring that an effort is made to identify key stakeholders and major opportunities and problems at the front end of the process. This is also a commitment to the government’s efforts to advance Indigenous reconciliation by ensuring that their voices are heard and their rights are respected, something about which I’m sure we’ll have more discussion in this place.
While I’m pleased to see these changes, it will be important to ensure that proponents in the new planning phase are not getting lost in the new planning arrangement. That is, we can look beyond, far and wide, for the involvement of others, but we shouldn’t lose sight of the proponents at that table as well.
Third, Bill C-69 proposes a more holistic approach. There will be a set of criteria to be considered when a project is being assessed. For the first time, the negative and positive effects of a project on social and economic conditions require consideration in an assessment in addition to environmental impacts. Timelines are firm, but they also provide flexibility in order to be responsive to the nature, scale and complexity of the project. Some large and complex projects will need more time. Those that are less complex will come in way under the timelines. It’s not a one-size-fits-all approach, and information on all projects will be available to the public, encouraging greater accountability and transparency.
We’ve heard from a number of stakeholders that these changes are long overdue, and we’re also hearing concerns raised. I will get back to those in a moment.
Let’s briefly return to the government’s stated objectives.
The first is restoring public trust. Providing clear timelines for each stage of the process and making assessments accessible for all Canadians would ensure transparency and accountability in the review of a project. The expert panel heard concerns that decisions were made behind closed doors with insufficient explanation. Developing a more transparent regime will go a long way in restoring public trust and is good practice in public policy and public governance.
There has been some concern that the bill’s timelines are not shorter than under the current regime. They are shorter. Under the CEAA 2012, the maximum time for an environmental assessment would be 1,895 days. Under Bill C-69, the maximum time for an impact assessment, including the new addition of the early planning phase, would be 1,770 days. That includes that new early planning phase that’s meant to provide greater clarity to proponents about what is required of them and more certainty in the review process. This will likely create greater efficiencies in the review process and should lead to more timely decisions.
As a result of this early planning approach, proponents should know who needs to be consulted and how. Potential issues would be identified and hopefully addressed early. Information required for the review would be identified early on, and the things to be examined during the impact assessment phase would be clarified to the extent possible.
We’ve heard, both in this chamber and from the Alberta Minister of the Environment, that the ability of the minister to hit pause at any point in the process could stall projects. That’s the case now. I think this needs to be explored further in committee.
I understand, though, that every project is different. For some assessments, it will be necessary to pause in order to resolve issues that are often raised by project proponents themselves. Notably, the government consultation paper on information requirements and time management regulations proposes putting specific criteria in the regulations to provide guidance on when the clock could be stopped. Those criteria include: a request from the proponent, a design change by the proponent that could change the potential impacts of the project, critical information needed to complete the assessment, or nonpayment for recoverable activities — that would be until payment has been received.
When the clock stops, the minister is required to provide detailed reasoning for the decision and to make it publicly available to all Canadians on the website. Again, this is a move toward greater transparency. It’s a step forward from our current system, where decisions are being made, often behind closed doors, as under CEAA 2012.
While we’re on the subject of transparency, it is important to have clarity around the project list, and its development and management. I know there are many organizations that have emphasized the importance of knowing what approved or authorized projects are on the list, how they’re managed and by whom.
Second is protecting the environment. I’ve heard some colleagues suggest there was too much focus on the environment and perhaps not enough on economic development in this new proposed scheme. This would be a problem, but I note that one of the goals of the legislation is getting resources to market and approving sound projects.
In its report, the panel proposes changing the term “environmental assessments” to the all-encompassing term “impact assessments,” and the government accepted that recommendation, stating:
IA goes beyond a review of individual aspects of a proposal to look at the big picture — what is proposed and what may be impacted?
Considerations of this nature would look at the five pillars of environmental, health, social, cultural and economic impacts. When we talk about sustainability, we’re not only referring to environmental sustainability but rather looking at all the factors that go into making our lives more sustainable.
Further, Minister Shannon Philips provided her insight into this and clearly stated that economic considerations had always been part of assessments and always will be. The new system is not going to change that.
I also note that under CEAA 2012, only negative environmental effects are assessed. Positive impacts are not given formal consideration. Under Bill C-69, there is a holistic approach to assessments. Again, I believe the bill strikes a balance between environmental protections and economic considerations. Again, though, that will be our collective determination.
Third is introducing modern safeguards. The creation of the Impact Assessment Act as the sole responsible authority for assessments has drawn some criticism. Currently, under CEAA 2012, the Canadian Nuclear Safety Commission and the Canadian Environmental Agency are involved. The expert panel recommended that a single independent and impartial body should be responsible for overseeing assessments. They cited concerns heard about the perceived lack of independence between the National Energy Board and the CNSC, and the industries they regulate. They also found having three responsible authorities only served to duplicate work and create unnecessary inconsistencies.
With the independent assessment agency as the sole authority, processes will be streamlined, and be more efficient and effective from a regulatory standpoint, and this seems to make sense.
All that being said, it’s no surprise that significant concerns are being raised about the bill, both at the political level from the petroleum industry and others. I know we’re going to hear those, and I know we’re going to consider those views presented to us.
In addition, and perhaps more understandably, Indigenous organizations and Indigenous senators in this place are going to have a substantial interest in the proposed processes, not least of which will be those related to the involvement and the agency of Indigenous peoples in the processes envisaged in this bill.
Honourable senators, I’m generally supportive of this legislation, but I am in agreement with many colleagues in saying that this legislation requires very careful consideration. It may not be a perfect bill, but I’m confident we can make adjustments where and as they’re needed.
Finally, I want to return to the purpose of the bill, which is to restore public trust of Canadians. Here, we have a once-in-a-generation opportunity — and these opportunities come through rarely — to review our environmental assessment system and make adjustments to reflect our changing climate and ever-evolving energy sector. Let’s take advantage of that opportunity.
I remind senators that many stakeholders were asking for changes to be made to CEAA 2012. Many believe the current system is broken. If it is, it is our job to assess that and fix it. I hope all colleagues will vote in favour of sending this bill to committee where it can be examined more closely.