Viewpoint 43-2: Much of the Criticism of Bill C-69 is Demonstrably False - LawNow Magazine

Viewpoint 43-2: Much of the Criticism of Bill C-69 is Demonstrably False

Viewpoint column logo“So destructive … (it) must die,” claims Licia Corbella (“Corbella: Bill C-69 is Trudeau’s bookend to his father’s disastrous NEP,” Calgary Herald, Sept. 14).

A “grave danger to the Trans Mountain pipeline … This beast should be ritually slaughtered,” implores Don Braid (“Braid: Liberals’ own bill could kill Trans Mountain pipeline,” Calgary Herald, Sept. 15).

One would think that they were describing the second coming of Moby Dick (perhaps as a southern resident killer whale?). Alas, Corbella’s and Braid’s focus is Bill C-69, the Liberal’s environmental law reform bill that proposes a new Impact Assessment Act and the replacement of the current National Energy Board with a Canadian Energy Regulator. Both columnists rely heavily on the opinions and analysis put forward by Canada West Foundation CEO Martha Hall Findlay and former Conservative party leadership contestant Rick Peterson.

Anyone following this process for the past three years, which included an expert panel on the modernization of the NEB, will know that the minister of natural resources and his department have been thoroughly involved throughout. Unfortunately, almost all of their claims about Bill C-69 are demonstrably false. Hall Findlay complains that project assessments will take longer but a comparison of the relevant provisions shows that they would be shorter (300 days versus 365 days for standard assessments; 600 days versus two years for panel reviews).

She also complains about the “arbitrary political power the legislation would give to ministers and the government,” and yet the current regime is even more discretionary and arbitrary; at least under the IAA, the government will have to give detailed reasons for their decisions following the consideration of certain mandatory factors.

Peterson’s arguments are equally dubious. His top 10 list of concerns kicks off with the fact that the legislation was introduced by the minister of environment and climate change. Anyone following this process for the past three years, which included an expert panel on the modernization of the NEB, will know that the minister of natural resources and his department have been thoroughly involved throughout. Second on Peterson’s list is the inclusion of gender and other identity analysis, the implication being that it would be crazy, for example, for government to want to know about — and perhaps even mitigate — the well-documented gendered effects that a sudden influx of workers can have in remote northern communities.

The great irony in all of this is that Bill C-69 is the direct result of former prime minister Stephen Harper’s apparent overreach in 2012. I am referring to Bill C-38, the infamous omnibus budget bill that repealed the original Canadian Environmental Assessment Act and replaced it with the current CEAA, 2012, radically reducing the scope of the federal environmental assessment regime. Nearly 3,000 environmental assessments were terminated when CEAA, 2012 came into force, while today there are just 75 active assessments. Bill C-38 also drastically reduced the scope of Canada’s Fisheries Act, especially the protections for fish habitat, as well as the federal Navigable Waters Protection Act. Finally, it was the Harper government that amended the National Energy Board Act to give cabinet, rather than the NEB, the power to make final determinations with respect to pipelines, thereby “politicizing” the process.

All of these changes did not go unnoticed. They were met with strong opposition by Indigenous peoples (Idle No More), environmental groups, scientists and former politicians — both liberal and conservative. Ultimately, “restoring lost protections” became a key plank of the federal Liberal campaign in 2015. Having won that election, and following nearly three years of study by both parliamentary committees and expert panels, the exceedingly democratic result is Bill C-69 and an IAA that, frankly, is best described as a CEAA, 2012-plus and whose transitional provisions make clear that it poses no litigation threat to the Trans Mountain pipeline.

Could Bill C-69 be improved? Absolutely. That — not ritualistic slaughter — is the proper role for what is supposed to be the chamber of sober second thought.

Click here for a longer version of Martin Olszynski’s column. 

Authors:

Martin Olszynski
Martin Olszynski is an associate professor at the University of Calgary’s faculty of law. This article was first published by the Calgary Herald on September 26, 2018 and is reprinted with the author’s permission. The opinions expressed are those of the author.
 


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