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Bill C-69 strengthens resource project reviews: Senator Mitchell

The bill, which aims to improve Canada’s environmental assessment processes, is at second reading in the Senate.

Senator Grant Mitchell kicked off debate in the Senate on Tuesday for legislation to strengthen resource project reviews by building public trust and supporting competitiveness.

The objective of Bill C-69 is to improve the rules for the assessment of major projects to protect the environment and waterways, to rebuild public trust in how decisions about resource projects are made, and to provide certainty and predictable timelines to industry and investors. It also ensures that Indigenous knowledge be formally regarded and integrated into review processes.

Sen. Mitchell, who is sponsoring the legislation in the Senate, delivered the following second reading speech in the Senate.

“I am pleased to speak today on Bill C-69, officially entitled, 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.

Bill C-69 arrives at a pivotal moment in our history, when climate change is one of the greatest challenges of our generation, when marrying the strength of our economy with the protection of our environment is not an option; it is an imperative.

With that in mind, it is important to appreciate the magnitude of the contribution of our natural resources sector to Canadians’ economic well-being. This sector accounted for 17 per cent of Canada’s GDP and provided over 1.8 million jobs to Canadians in 2017.

It is equally important that we acknowledge the contribution that citizens of my province, Alberta, make to Canadians’ well-being through their resource development in Alberta. Albertans’ hard work, ingenuity, innovation and investment create economic prosperity that significantly benefits people across this country.

At the same time, most Canadians, including Albertans, are deeply concerned with environmental issues, I expect in particular with climate change. Compounding or competing with that concern is the fear that fixing environmental issues may threaten jobs, economic growth or, to put it another way, our ability to feed our families.

Bill C-69 runs head on into this trade-off. Efficiency, shorter time limits and certainty in project reviews are critical for our resource companies to be successful and for investors to be confident in highly competitive resource and capital markets.

On the other hand, limiting the scope of reviews, restricting public consultation and failing to honour Indigenous rights and partnerships can result in grievous environmental and social mistakes that rattle public confidence.

Concern with resource project review is not particularly new. The previous government, for example, introduced the Canadian Environmental Assessment Act of 2012 in an attempt to streamline, they would say, the review process. That act, which is referred to as CEAA 2012, was based upon the hypothesis that weakening Canada’s review processes would redress concerns about efficiency, timeliness and, therefore, competitiveness.

But — and this is an important ‘but’ — it did not solve the problem of advancing resource projects. In particular, the priority target of getting approval for pipelines to tidewater eluded business and authorities under this review regime. It did not create the kind of certainty hoped for by industry, and it built neither the public trust nor the courts’ conviction that the reviews were adequate.

Bill C-69 is based upon an extensive, transparent, 14-month consultation process designed to capture the diverse views of Canadians, including Indigenous peoples, industry, provinces and territories and the general public. This involved two expert panel reviews, two parliamentary standing committee reviews, hundreds of meetings and written submissions and thousands of online comments.

The bill is premised upon the idea that competitiveness and building trust in project review processes are not mutually exclusive.

It aims to ensure that the impacts of resource projects are being reviewed rigorously so as to build public and Indigenous peoples’ trust and to meet the exacting interpretations of the courts, and it will implement provisions to sustain and enhance industry’s competitiveness and investor confidence.

Bill C-69 contains three main parts. Part 1 enacts the Impact Assessment Act, which will replace the Canadian Environmental Assessment Act, 2012, and it creates the Impact Assessment Agency, which I will refer to as IAA, which will replace the Canadian Environmental Assessment Agency.

It also specifies and reduces timelines, enhances consultation and cooperation among various jurisdictions, and provides for a more comprehensive scope and public participation.

Part 2 creates the Canadian Energy Regulator Act, repeals the National Energy Board Act and replaces the National Energy Board with the Canadian Energy Regulator, or CER. It invokes important governance improvements and extends the purview of the CER to offshore renewable energy projects.

And finally, Part 3 amends key elements of the Navigation Protection Act and renames it the Canadian Navigable Waters Act. The emphasis here is upon keeping navigable waters navigable for the future, regardless of their use today.

The key elements of Bill C-69 can be organized into two categories: provisions that build public trust by strengthening the reviews of resource projects and provisions that address competitiveness.

To begin, the bill strengthens project review processes with a range of provisions; first, those that affect Indigenous peoples. The bill incorporates a strong commitment to advancing reconciliation with Indigenous peoples in the development of projects. It lays the framework for an inclusive relationship based upon rights, respect, cooperation and partnership. The bill clearly and repeatedly states a commitment to respect Indigenous rights.

The legislation specifically requires that impacts on Indigenous communities be assessed. It ensures that Indigenous knowledge be formally regarded and integrated into review processes. Assessment reports will have to describe how this knowledge was taken into account. Indigenous peoples will be guaranteed positions on review and advisory bodies. It will be mandatory to provide funding to support Indigenous participation in public hearings and in capacity building to support effective participation in project reviews.

Furthermore, Indigenous jurisdiction will have equivalent status in the creation of joint and integrated panels that will include federal and/or provincial, territorial and Indigenous authorities.

Second, in building public trust in review processes, the scope of assessments will be broadened. Bill C-69 establishes that reviews must consider more than specific environmental impacts. This was a key finding of the expert review panel on environmental assessments.

Reviews, to be credible in today’s context, must consider climate implications. They must also consider the social, economic, health and gender impacts and opportunities of resource projects.

Broadening the scope of impact assessments to include gender-based analysis will help to understand better the socio-economic and health impacts of projects on communities.

Yes, this means that a broader range of negative impacts may become apparent, but it also means that consideration of positive impacts will now be entrenched in the review and reporting process for clear public understanding. This is an important distinction and significant improvement on current practice. It also provides the minister with a broader base of information with which to weigh the overall public good of resource projects against adverse impacts while making the decision on given projects.

Third, in regard to public consultation, perhaps most critical to the credibility of project reviews is that public input be comprehensive. Bill C-69 removes the limits on participation in public consultation and requires funding to support it. Under the new Canadian Energy Regulator, the standing test that required Canadians to seek formal approval to participate in regulatory hearings, will be removed. The impact of expanded public participation on timeliness will be governed by the implementation and management of clear, legislated timelines.

Fourth, an emphasis on science: Interestingly, both industry and non-industry participants in the pre-Bill C-69 consultation process emphasized the importance of science in driving assessment reviews and decision making. The bill explicitly mandates the consideration of scientific knowledge in the environmental and broader review impact process.

Transparency and accountability: Reasons for decisions made throughout an assessment process will be reported publicly. Scientific data, Indigenous knowledge and other information derived in the preplanning and assessment phases will be placed on a centralized, publicly accessible website.

Combined, this list of measures will strengthen the project review process and enhance its credibility. This is critical to building public trust in resource development. However, some would say that these provisions undermine industry’s competitiveness, fearing, in particular, potential delays, broadened scope, expanded public participation and reference to climate change impact. That brings me to the second category of provisions in Bill C-69, those that bear upon competitiveness.

First, timelines. Some in industry fear that Bill C-69 will create delays due to extended timelines, but, in fact, timelines for the assessment phase in all review categories will be reduced and, where there are none now, some new ones will be imposed.

Assessments of major projects done by the IAA alone will be reduced from 365 days to 300 days. That’s from one year, 12 months, to 10 months.

Assessments of major projects done by joint review panels or integrated review panels will be reduced from 720 days to 300 days. That’s from 24 months to 10 months.

There is an option to set the timeline up to a maxim of 600 days for these kinds of reviews for more complex projects, but the minister will be required to report publicly the reasons for such decisions.

Timelines for projects reviewed by life-cycle regulators such as the Canadian Energy Regulator and the Canadian Nuclear Safety Commission would be shortened from 450 to 300 days. That’s 30 per cent.

The minister will be required to decide on a project, and this has not been the case before, no later than 30 days after the impact assessment report is completed. In the cases requiring a cabinet decision, the deadline will be within 90 days. This corrects the current situation where there are no specific timelines or deadlines on project decisions by the minister or cabinet.

The minister will have authority to suspend timelines for short periods, but the management of timelines under the proposed legislation will be more controlled than under CEAA 2012. Extensions by the minister will be limited to 90 days.

Provisions in the new information requirements and time management regulations will govern rigorously when timelines can be suspended, and the minister will have to report publicly why a suspension of a timeline has been imposed. All of this adds up to better time management and significant time savings.

Concerns have been raised about the addition of a 180-day preplanning period, but I believe that this will, in fact, facilitate the timeliness of project reviews. Currently, much unofficial preplanning is already done by proponents in anticipation of a project application. The new process would recognize these efforts and formalize industry preplanning best practices. This will not necessarily be a net new time commitment.

This early planning phase will engage stakeholders, improve preparation for the assessment phase and clarify the government’s expectations of proponents in that phase. It will allow proponents to plan and adjust accordingly.

It will be the responsibility of the IAA to use the information gathered in this stage to provide the proponent a new tool, the Tailored Impact Statement Guideline document, with emphasis on ‘tailored.’ This will set out the scope of the impact assessment phase. This has the potential to streamline the demands proponents will face in that phase.

Finally, the work done at this stage will identify any significant issues that could likely result in a project not being approved. This addresses an industry concern that, if a project is to be rejected, proponents should find out earlier rather than later before much more investment has been committed.

Second, Bill C-69 creates many efficiencies in the review process which will benefit business. Federal authorities with responsibility to lead major reviews will be reduced from three to one. A single authority, the IAA, will lead all major reviews. This will provide for better coordination, greater consistency in reviews and more efficient application of expertise. It will also ensure that reviews are rigorously managed within the new timelines. Bill C-69 embraces the one-project-one-review principle to reduce duplication and enhance efficiency. Under the current environmental assessment legislation, projects are sometimes required to undergo several assessments.

Mines are often subject to both a federal review and a separate provincial review. Under the new legislation, the IAA will work cooperatively with provinces, territories, Indigenous authorities and regulatory bodies to plan a single harmonized process. At the IAA’s disposal to do that will be joint panel possibilities, integrated panel possibilities and outright delegation of processes to other jurisdictions.

A further advantage to the industry in the proposed review process is that ministerial and cabinet decisions will be transparent. Decisions about project approvals will be based upon specified elements, including economic, health, cultural and social impacts and gender implications. These decisions and their reasons will be outlined in clear decision statements, with written rationales that will be made public. This represents an important improvement over the current system defined by CEAA 2012, where it is not always clear why decisions are made or what factors were considered.

The transition period: No starting over. No project already in the pipeline, if I can intend that pun, will be required to start over under the new rules, not the Trans Mountain pipeline, not any other project, unless the proponent requests it.

Certainty: Many of the initiatives I have just mentioned will enhance certainty. Timelines are legislated, specified and shorter. Decisions will be transparent. The range of possible impacts and, with that, the potential problems will be identified earlier. Targeted impact assessment guidelines will be provided to proponents. Single review authority under the IAA will provide consistency.

This set of measures will enhance competitiveness.

There are several other advances in this bill that do not fall neatly into the two categories I have just discussed, but I’d like to discuss them anyway.

Navigable waters: Navigable waters are vital to our economy. They are vital to our way of life, and we all know that they are part of who we are. Indigenous people have a particularly profound connection with them. We need to ensure the protection of our navigable waters.

Bill C-69 strengthens the protection of navigable waters. It amends the Canadian Navigable Waters Act to include, for the first time, a comprehensive definition of navigable water. This new definition strikes a balance. It is not so broad as to capture every ditch or irrigation canal that could float a canoe or, as our colleague Senator Neufeld would say, float your boat, nor is it so narrow as to exclude bodies of water that are important to Canadians now or will be in the future.

The amended Canadian Navigable Waters Act will restore protections to all navigable waters.

Second, I would like to address the creation of the Canadian Energy Regulator — the CER — to replace the National Energy Board. The NEB has served Canadians well for nearly six decades. However, the mandate, structure and role of the NEB have all remained relatively unchanged for those nearly six decades. It is, in fact, almost as old as I am. There are things that we can fix.

Building from the recommendations of the expert panel for modernizing the NEB, Bill C-69 will create a more modern governance structure for the new agency. The chief executive officer will be separated from the chair. The board of directors will provide the CER with strategic direction and, through the CEO, will oversee the management of the organization. That role will be separate from a newly created category of commissioners responsible for participating in the actual assessment processes. It separates the adjudication role, therefore, from the role of regulating operating projects.

The bill also accords the Canadian Energy Regulator new authority to regulate the construction and operation of offshore renewable energy projects. These resources represent untapped economic growth in jobs potential for our coastal communities, but no current federal regulator has the responsibility for these projects, and none has ever been done. Through Bill C-69, companies will have a clear regulatory path to undertake this kind of project.

Turning to sustainability, Bill C-69 reflects the concept of sustainability. This is evident in the broadening of assessment criteria beyond only environmental impacts, to include social, economic, Indigenous, health and gender impacts. Long-term strategic goals for Canada will certainly include traditional resource development, but they will also include diversification of our energy economy, diversification of our economy in general, protection of our environment, strengthening of our communities and reconciliation with Indigenous peoples. This is what constitutes sustainability.

This is not a threat to economic or resource development. It is an essential element of a modern strategy of integrating and balancing the true range of forces, challenges and opportunities that Canadians face in developing our economy, country and society.

Bill C-69 has been forged in a difficult time for all of us concerned with the economic well-being of Canada, on the one hand, and with fears about environmental sustainability and climate change, on the other.

At times, the debate has been polarizing, some saying that the bill will render our resource industries uncompetitive, while others arguing that the pressures on the environment and the ever more apparent effects of climate change demand greater rigour in our reviews. Bill C-69 contributes strongly to bridging this gap. Public trust is essential to government initiatives in a democracy. If it is in doubt, it needs to be nurtured.

Bill C-69 will strengthen the review process. In addition, Indigenous rights will be respected, public participation in the hearing process will be enhanced, decisions will be transparent, information will be public, the scope of reviews will be broadened and reviews and decisions will be rooted in sustainability.

Canadians want a credible process that supports timely decisions based on sound evidence that ensures good projects go ahead. And it is not the threat to competitiveness that some would argue. Building public trust will enhance industry’s ability to sell these projects to Canadians. Timelines will, in fact, be shorter. Expectations will be made clear earlier. Duplication will be reduced. Coordination between and amongst jurisdictions will be improved and the concerns of courts will be addressed.

Strengthening the review process makes us more competitive, not less competitive. It also enhances sustainability. An economy, a society and a Canada prepared for the future demand both.”

Bill C-69 strengthens resource project reviews: Senator Mitchell