The federal Liberal government has accepted some substantial Senate changes to its environmental assessment overhaul legislation — but has rejected 90 per cent of those proposed by Conservative parliamentarians that environmental groups warned would weaken the review process.
The Senate passed an unprecedented 188 amendments to Bill C-69 after months of study and a cross-country committee tour to regions most affected by changes to the natural resources and energy regulatory regime. All told, the government has accepted 62 of those Senate amendments verbatim and accepted 37 others with some substantial tweaks.
The legislation will be now sent back to the Senate, which must accept the Liberal government’s changes if the legislation is to be passed into law.
The government has accepted dozens of amendments proposed by a multi-partisan group of senators — specifically, language that will strengthen the role of the provinces in the review process and changes that will limit the ability of the environment minister to start and stop project review timelines (the government has agreed much of that power should fall to the new regulatory agency, the Impact Assessment Agency).
The government has agreed the agency should be forced to post on its website its reasons for suspending a project review timeline.
The government also backed a Senate amendment that will give the agency more power to decide who should be allowed to participate in regulatory hearings.
While the amended bill says the public will still have an opportunity to “participate meaningfully” in those hearings, the government has accepted a Senate change that calls for participation “in a manner that the agency considers appropriate.”
That change is important to industry groups who feared that, by eliminating the “standing test” entirely, the government risked allowing people with tenuous connections to a project — environmental activists in particular — to overwhelm regulatory hearings, to the detriment of parties directly affected by the project.
In addition to giving the agency more discretion on timelines and public participation at hearings, the government has agreed to Senate language that essentially will bar the environment minister from directing the head of the agency to do something — a measure designed to ensure the independence of the assessments agency.
The government also affirmed legislated timelines for how long it will take for a project to go through the assessment process. The federal cabinet will retain the “final decision” on approving major resources projects — a substantial power that essentially gives the federal government of the day a veto.
“We’re accepting amendments that would depoliticize the process, reducing the minister’s discretion in favour of the impact assessment agency,” Environment Minister Catherine McKenna said. “We will not be accepting amendments that weaken the rules.
“Let’s be clear on what Conservative politicians want. They want to replace environmental review with (a) pipeline approval process. They want us to copy and paste recommendations written by oil lobbyists.
“That’s why we rejected 90 per cent of the Conservative amendments. They’re unacceptable to us and they’re unacceptable to Canadians.”
However, some of the amendments the government accepted — changes to the public participation process, for example — were proposed by groups like the Canadian Association of Petroleum Producers (CAPP).
Among the rejected amendments were those the government saw as diluting provisions of the bill relating to Indigenous peoples — provisions the government has presented as the best way to avoid some of legal pitfalls the Trans Mountain pipeline expansion project experienced as a result of Indigenous-led litigation.
The bill, as originally written, said the minister “must” take into account any adverse impacts that a project may have on the rights of Indigenous peoples before deciding whether to put a project through a federal review. A Senate amendment changed “must” to “may.”
The government also has restored language that ensures a project review must consider “any” change occurring in Canada to the health, social or economic conditions of Indigenous peoples. Industry groups said that stipulation might be too heavy a burden for project proponents.
The government also has rejected a word change designed to limit the environmental review process to “significant” adverse effects alone. The qualifier “significant” didn’t make the cut.
The government rejected Senate amendments to the preamble of the legislation that were designed to prioritize economic considerations in the assessments process, along with environmental protection. The government has rejected references to “providing certainty to investors and stakeholders and driving innovation.”
The government rejected amendments that would have provided for more participation by municipalities in the process, and Senate changes that would have allowed offshore petroleum board regulators — like those from the Canada-Newfoundland & Labrador Offshore Petroleum Board — to sit on assessment panels.
Environmentalists have said these boards have been “co-opted” by project proponents and regulatory bodies should have no role in the approval process for a project they might later be asked to regulate.
“The amendments we put forward were necessary to try and fix this terrible piece of legislation,” Conservative Leader Andrew Scheer told reporters Wednesday.
“This piece of legislation has been dubbed the no-more pipelines bill by experts in the industry. There’s near universal opposition to it … we’re very concerned to hear they’re dismissing these very important amendments we put forward.
“Making a terrible piece of legislation slightly less terrible is not a great way to support an industry. You’ll pardon me if I don’t take a lot of solace in the fact they’re recognized some of their initial errors.”
More to come.