Today, Minister Catherine McKenna introduced 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
- The National Energy Board (NEB) is being replaced by the Canadian Energy Regulator (CER)
- The Canadian Environmental Assessment Agency (CEAA) is being replaced by the Impact Assessment Agency of Canada (IAAC)
- Maximum 300 days to review projects designated for an impact assessment
- Consideration of Indigenous knowledge mandatory for all reviews
- Elimination of the “standing test” to public participation
- Impact of designated projects on climate change now considered
Canadian Energy Regulator
The role of the CER is to regulate the exploitation, development, and transportation of energy within Parliament’s jurisdiction. Responsibilities include:
- provide for the regulation of pipelines, abandoned pipelines, and traffic, tolls and tariffs relating to the transmission of oil or gas through pipelines;
- provide for the regulation of international power lines and certain interprovincial power lines;
- provide for the regulation of renewable energy projects and power lines in Canada’s offshore;
- provide for the regulation of access to lands;
- provide for the regulation of the exportation of oil, gas and electricity and the interprovincial oil and gas trade.
The CER will remain Calgary based, failing to dispel concerns about the revolving door between the oil and gas industry and the regulator.
Impact Assessment Agency of Canada & Substitution
The Impact Assessment Act authorizes the Minister to refer an impact assessment of a designated project to a review panel if he or she considers it in the public interest to do so, and requires that an impact assessment be referred to a review panel if the designated project includes physical activities that are regulated under the Nuclear Safety and Control Act, the Canadian Energy Regulator Act, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act.
However, Section 31 of the Canadian Energy Regulator Act still allows for a process of Substitution.
Minister’s power31 (1) Subject to sections 32 and 33, if the Minister is of the opinion that a process for assessing the effects of designated projects that is followed by a jurisdiction referred to in any of paragraphs (c) to (g) of the definition jurisdiction in section 2, that has powers, duties or functions in relation to an assessment of the effects of a designated project would be an appropriate substitute, the Minister may, on request of the jurisdiction and before the expiry of the time limit referred to in subsection 18(1), or any extension of that time limit, approve the substitution of that process for the impact assessment.
Therefore, regulators may be allowed to conduct something comparable to an impact assessment. This raises concerns about bias and industry-captured regulators making decisions about environmental impact and the implications of a project on climate change.
Not all proposed projects will be subject to an impact assessment. It is up to the Minister’s discretion to refer a project for designation if, in his or her opinion, they believe the project may cause adverse effects within federal jurisdiction. The Impact Assessment Agency of Canada must then consider any comments received from the public in deciding whether to make the designation.
The proposed new law stipulates that assessments of major projects must be completed within two years while those that are not subject to the Impact Assessment act must be done within 300 days, down from the 450 days that are currently allowed.
The new legislation still stops short of the UN goal to give Indigenous Peoples “free, prior and informed consent” over projects in their regions. Ottawa will merely “aim” to meet that objective.
The existing “standing test,” which dictates just who can participate during the regulatory review process, will be scrapped to give all members of the public a chance to participate. However, the method of public participation remains unknown. Under the National Energy Board, participants could choose between being an Intervenor (more fullsome participation) or writing a letter of comment. Given the short decision timelines and more open participation, it is unlikely that the public will be able to provide robust evidence during each stage of the process. There is speculation that public participation may be reduced to written comment.
The word “climate” is mentioned five times in the 341-page document. Once in Minister McKenna’s title, once to describe the “investment climate” and three times as “climate change”. Under the new legislation, the impact of a project on climate change will be considered as a factor under both the impact assessment and public interest determination.
“Whereas the Government of Canada recognizes that impact assessment contributes to Canada’s ability to meet its environmental obligations and its commitments in respect of climate change …”
The impact assessment of a designated project must take into account the following factors:
… (i) the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change; …
Minister McKenna mentioned during the news conference that there are over $500 billion in major resource projects planned across Canada in the next decade. She did not elaborate on the specifics of these projects. If the government is serious about taking action on climate change, any project that increases our national emissions must be determined to not be in the public interest.
Would you like to see changes to the proposed legislation? There’s still time! Click here to learn about how laws are made in Canada. Bill C-69 was introduced for first reading on February 8, 2018.
Next, contact your Member of Parliament (MP) to provide support or suggest changes to the proposed bill. You can find contact info for your local MP here and tips and tricks to effectively communicating with them here.
Public comments during the legislative process will be more important than ever to ensure that climate change is a top priority during impact assessments and regulatory reviews moving forward.
NOTE: This is an early review of the proposed legislation. If you believe any of the text above is incorrect or misleading, please email me at email@example.com