We may not have heard the last of Bill C-69
Court challenges could be in the offing with oilpatch’s opposition to legislation
The Senate on Thursday night passed controversial legislation that overhauls the environmental review process, a bill that is likely to draw court challenges and remain a topic of discussion as campaigning for the upcoming federal election heats up.
“I must say that I’m fairly comfortable supporting Bill C-69 as it stands today, especially because it may be one of the major issues in the next election campaign,” said Eric Forest, an independent senator from Quebec.
Though it was staunchly opposed in the energy sector, the bill drew support from mining trade organizations.
C-69, which passed 57 to 37, has a broad range of consequences and was designed to ensure that companies moving forward on major construction projects have a “social license.”
To that end, it creates new requirements for public consultation including on climate change, gender and other issues. But it also has broader consequences, including the creation of a national Impact Assessment Agency that will oversee project evaluations.
The legislation grew out of a Liberal campaign promise in 2015 to overhaul the environmental review process; and earlier this month, Sen. Grant Mitchell, formerly leader of Alberta’s Liberal Party and now sitting as an independent, said that C-69, which he sponsored, replaces an environmental review process that had stopped working.
“It had failed to get critical projects built,” Mitchell told the Senate on June 17. “It did not have the trust of Indigenous peoples nor the public at large and, as a result, had been mired in litigation that had so unsettled investors it had to be fixed.”
He added that the House of Commons had accepted 62 amendments from the Senate outright and 37 with some modifications, which is an “historic record” and the greatest number since it started being tracked in the 1940s.
The centre of opposition to the bill has been the oil and gas industry in Alberta, where Premier Jason Kenney said on Friday he would file a court challenge to the law, calling it a violation of provinces’ constitutional right to control the development of natural resources.
“It inserts massive new uncertainty into the federal environmental approval process for major projects, leading energy industry groups to say that no future pipeline will ever be proposed under this regime,” Kenney said in a statement.
Chris Bloomer, president and chief executive of the Canadian Energy Pipeline Association, said that his organization had put forward a package of amendments it felt were necessary to make the bill palatable. The Liberals rejected most of his organization’s suggested amendments, leaving him feeling like their concerns had been “glossed over,” said Bloomer.
Unlike the Liberals, he argued that the old environmental review process — the Canadian Environmental Assessment Act of 2012 — has been working.
“There were things about the CEAA 2012 legislation that needed to be fixed,” said Bloomer, “but fundamentally these were renovations, not burning down the house.”
Still, he said it is difficult to point to specific problems with C-69, and instead said that the legislation has too many vague clauses and elements. That will end up injecting uncertainty into the environmental review process, which will deter investment in pipeline projects in Canada, said Bloomer.
But there was even stronger opposition from a group called Suits and Boots, founded and led by Rick Peterson, a former leadership candidate for the Conservative Party of Canada, who led a campaign to kill the bill outright.
Peterson acknowledged that the bill did contain some good provisions, but said it also had “some real killers.”
“To me, the biggest risk is the litigation risk — going to court all the time,” he said.
In some ways, that concern echoes Liberals’ stated reason for overhauling the environment legislation, with Mitchell saying that projects had been “mired in litigation.”
Most notably, that included the Trans Mountain Pipeline, which faced 18 court challenges.
Anna Johnston, a lawyer with West Coast Environmental Law, who was appointed to sit on an advisory committee to assist with the process, said the new bill is an improvement on the old bill in many ways. As an example, she said it introduces a new planning phase so that firms must consult the public early on, designed to ensure that all project impacts that need to be studied are identified at the outset.
She also said it requires companies to assess their impact on gender: For instance, when a mining company, which has a largely male workforce, sets up in a remote area, it evaluates its potential impact on women in the nearby community.
The bill sets out which projects are subject to the federal environmental review, and Johnston said many projects are not covered, and predicted only a handful of projects per year would be covered.
“Bill C-69 — it’s a compromise, it’s not a perfect bill,” said Johnston.