Copyright © 2019 Senator Dennis Patterson.

Impact Assessment Bill Canadian Energy Regulator Bill Navigation Protection Act
Bill to Amend—Second Reading—Debate Continued

1st Session, 42nd Parliament
Volume 150, Issue 258
Thursday, December 6, 2018
The Honourable George J. Furey, Speaker

Impact Assessment Bill Canadian Energy Regulator Bill Navigation Protection Act
Bill to Amend—Second Reading—Debate Continued

 

Hon. Dennis Glen Patterson: 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.

Colleagues, several aspects of this huge bill concern me; however, for this speech I shall limit my remarks to three: the removal of the standing test, the lack of clarity around decision-making, and the meaningful inclusion of Indigenous peoples in the assessment process.

When Senator Pratte touched upon this subject, he stated that he believed the standing test was removed “so that any interested Canadian can participate in the project.” He quoted the 2017 report by the Expert Panel on the Review of Environmental Assessment Processes, which stated:

The exclusion of individuals or groups from the assessment process erodes any sense of justice and fairness.

However, my interpretation of the key recommendation of that section differs from that of our honourable colleague. I believe the key issue is that many respondents felt as though their contribution to the process made no impact and was not appropriately reflected in the final decision. Indeed, the report states that, for any assessment:

A participation plan collaboratively designed with input from the public should clearly establish the objectives of public participation and specify rules for the public, including how input will be recorded, responded to and incorporated in decision-making. If the role of the public is established and agreed upon early in the process, future misunderstandings and frustrations could be avoided.

This is not accomplished by eliminating the two-stage standing test that currently exists. The test, I believe, ensures that those directly affected by the project are given the biggest voice, and then goes on to provide an opportunity for experts and other qualified individuals with relevant information on a proposed project to participate.

In her speech on this bill in the other place, the honourable Member for Lakeland shared an example that arose during consideration of the Enbridge Line 9B Reversal and Line 9 Capacity Expansion proposal that I would like to share with this chamber. She said:

After receiving 177 applications to participate, the NEB granted 158 applicants full participation rights, and asked 11 applicants to submit a letter of comment. The board only denied eight. One of them appealed, so the courts examined her application and the board’s decision. Her application was aimed at the second prong of the standing test, to contribute based on her expertise.

The judicial decision stated:

She stated that she had a specified and detailed interest in the matter . . . based on her religious faith. In her view, a spill from a pipeline, even far away from her home, is “an insult to her sense of the holy.”

Colleagues, I would argue that this was an effective use of the standing test to ensure that only relevant information entered the discussion. In practice, these are the same principles applied in Nunavut. Those communities that would be directly affected by projects are consulted. Public hearings are set up in the community, and active outreach and engagement are initiated by the regulator and the proponents.

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Comments from outside witnesses can be received, but those from outside the community that would like to participate in the public hearing must apply for intervenor standing.

I do not agree with taking away this discretion from the regulating body.

The lack of clarity around the decision-making process is another issue that I feel necessitates further discussion and careful examination. We currently have, under section 22(1) of this bill, no less than 23 different factors that must — and I emphasize the inclusion of the word “must” — be taken into account during consideration of a project. These factors include community knowledge, comments received from the public, the intersection of sex and gender with other identity factors, Indigenous knowledge and so on.

I question how all these factors will be weighted. Will the voice of someone in Ontario who is ethically opposed to a project in B.C. bear the same weight as a First Nation member living in the immediate area? This is not clear to me nor is it clear to stakeholders that I have had the opportunity to meet with. In the case where substitution is granted to another jurisdiction, be it a provincial or Indigenous assessment agency, would these factors be weighted the same way? Is the weighting of the various factors left to the discretion of the agency or panel conducting the assessment where substitution is granted?

Honourable senators, I suggest that these are dangerous questions to leave unanswered but, ultimately, regardless of which jurisdiction conducts the actual assessment, and regardless of who is or is not able to participate, the federal minister retains the ultimate authority. As this bill is currently written, the minister can choose to proceed or not proceed with the project even before an assessment is conducted. That minister can decide whether the risks are too great without having to justify their decision due to a lack of set criteria in this bill.

Colleagues, reconciliation is one of the key themes of this legislation. The preamble of the proposed impact assessment act clearly states this bill is meant to reaffirm Canada’s commitment to respecting the rights of Indigenous peoples as defined in section 35 of the Constitution Act, 1982, striving to work in partnership with Canada’s First Peoples and “implementing the United Nations Declaration on the rights of Indigenous Peoples.”

However, I believe that Bill C-69 creates high expectations and falls short of delivering a truly collaborative process. Is it indeed a partnership if the minister holds such executive powers?

The Assembly of First Nations, in their brief to the committee studying this bill in the other place, wrote of their concerns stating:

The bottom line in the draft Act is that, even if environmental processes are carried out, the Governor in Council always retains the power to infringe constitutionally-protected inherent and Treaty rights of First Nations, as long as it provides reasons for such decisions.

Again, I would point to the lessons that can be gleaned from comanagement in the North. Though not a perfect system, comanagement in Nunavut provides clear guidelines as to whether a project can or cannot proceed.

Step one: Does it conform to current land use plans? If yes, it proceeds to the Nunavut Impact Review Board, the NIRB. They then engage with community members, experts and other interested parties in an open and transparent manner. It provides for oral submissions from elders and integrates traditional knowledge into its determination. The NIRB factors in social and economic impacts as well as potential environmental impacts and, after a series of public hearings, makes its determination to the responsible minister. The minister can then choose to accept, reject or ask the NIRB to take a second look. The latter two options must be justified based on a set of explicit criteria outlined in the Nunavut Planning and Project Assessment Act.

This, honourable senators, is a codeveloped system. This is a system that would be the envy of many First Nations in this country.

Every step of the way, Inuit are active participants in leading the assessment process. They are more than a token guaranteed seat on a review panel or advisory board, such as is set out in this bill. They are the chairs, the leaders. There are clear timelines and equally clear guidelines for proponents and decision makers, significantly reducing the potential for arbitrary political decisions. Certainty for today’s economy is something I believe we can all agree on.

How we arrive at that certainty is the point of contention. I believe that we achieve certainty by clearly defining the rules.

One way suggested by Jack Mintz, the President’s Fellow at the University of Calgary’s School of Public Policy, is that we can address this crisis by “revamp[ing] Bill C-69 to model it after best practices found in other countries, such as Australia, that separate specific project approvals from social and political issues.”

Colleagues, this is a large and complex bill that leaves me with many questions I hope will be seriously addressed and answered during the committee’s deliberations. With these questions left outstanding, I cannot support this bill.

(On motion of Senator Martin, debate adjourned.)