Minister of Justice and Attorney General Bronwyn Eyre, speaking about a federal “gag law,” in a scrum in Weyburn on June 5. Photo by Brian Zinchuk

The hated Bill C-69 is apparently not dead, yet

Editor’s Note: On June 4, Saskatchewan Minister of Justice and Attorney General Bronwyn Eyre appeared before a Senate committee looking at the rehash of Bill C-69, the Impact Assessment Act, which was found unconstitutional by the Supreme Court of Canada. This is Eyre’s presentation, verbatim, from Hansard, as well as the testimony of Brad Gilmour, Partner, Osler, Hoskin & Harcourt LLP, as an individual. The French portions have been deleted. However, it is possible to hear the translation from French by watching the video here: https://senparlvu.parl.gc.ca/XRender/en/PowerBrowser/PowerBrowserV2?fk=643185&globalStreamId=3

Today, the committee continues its examination of the subject matter of the elements contained in Division 28 of Part 4 of Bill C-69, An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024.

Hon. Bronwyn Eyre, M.P.P., Minister of Justice and Attorney General, Government of Saskatchewan:  Thank you very much and thank you, senators and Madam Chair, for the opportunity to appear today. We know it was short notice and we appreciate your fitting us in.

I remember the last go round on this bill in its original form back in 2019. Certainly, we felt passionately — I felt passionately — that it was not a question of one-off changes or amendments at that time, but really that the entire bill had to go, as they say. We agreed with the Court of Appeal of Alberta, a majority, that Bill C-69 took a federal “wrecking ball,” as they put it, to provinces’ exclusive jurisdiction under section 92(a) of the Constitution over power generation and natural resources. That, as we all know, was borne out at the Supreme Court last fall, when the majority recognized that the Impact Assessment Act, the IAA, was a clear example of federal overreach and that the power of federal authorities to, among other things, permanently put provincial projects on hold was “unconstitutional abrogation of power by Parliament which plainly overstepped the mark.” That, in our mind, has not fundamentally changed. To our mind, the federal government has only done the barest minimum to accommodate the Supreme Court holding. In that reference last fall, the general tenor remains unchanged. This is severely problematic for a whole host of reasons.

Let’s not forget that Electricity Canada President and CEO Francis Bradley told this committee only recently that Canada has missed a key opportunity to create a regulatory environment that boosts business confidence and minimizes risks and that there is mounting concern in the Canadian business community about our country’s ability to compete and to generate long-term prosperity. Saskatchewan would have to concur with some of those concerns.

In 2022, the Canadian Mining Association was characterized as having “buyer’s remorse” over having initially backed Bill C-69 due to the number of mining projects being made subject to it and the CMA said it was sending a “cold shiver up the spine of the Canadian mining sector.” That was in 2022.

Many business leaders have been sounding the alarm, as we all know, about Canadian productivity and how we have to boost it. Certainly, Saskatchewan feels that we are doing our part in that regard, but this bill in its current form is not the path forward.

We also know that over the course of Bill C-69’s brief and, we would submit, destructive life, it has been the usual story of some projects being approved in some areas of the country and not approved in other areas. That, of course, creates broader and deeper uncertainty.

For example, April 2022, Bay du Nord off the coast of Newfoundland was expeditiously approved by Minister Guilbeault and cabinet, but international investors have walked away from the Saguenay liquid natural gas plant of Berkshire Hathway to the tune of $9 billion — that was a few years ago — and from the Ring of Fire development in Ontario because of the uncertainty, as many international investors have stated, and uneven application of Bill C-69.

It is Saskatchewan’s position that there is basis for a future challenge to the new act if it is passed as is and without significant changes. As a province, we will be having those conversations.

At this juncture, I am happy to get into discussion further with committee members, so thank you.

The Deputy Chair: Thank you.

 

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Brad Gilmour, Partner, Osler, Hoskin & Harcourt LLP, as an individual: Good evening, senators. I’m a partner with the law firm Osler, Hoskin & Harcourt LLP, so I’m not here representing any government. Thank you very much for having me here today to provide my views on the Impact Assessment Act and the proposed amendments.

These are my personal views, and they are based upon my experience as a regulatory and environmental lawyer over the past 28 years or so, having worked with all versions of the federal environmental assessment legislation concerning major projects and developments across the country. My experience started with the Canadian Environmental Assessment Act, or CEAA, in 1992, which came into force in 1995, then with the CEAA, 2012, and, of course, the Impact Assessment Act, where I worked on amendments to Bill C-69 that came to this Senate before the act was proclaimed into force. Then I worked as counsel to Alberta, along with my colleagues, in respect of the reference case both at the Court of Appeal of Alberta and the Supreme Court of Canada. I will emphasize that today these are my comments.

My presumption going into this is that the ultimate goal is to develop federal environmental assessment legislation that focuses on areas of federal jurisdiction, ensures that environmental impacts of projects are reasonably assessed before decisions are made, that input from directly affected stakeholders is obtained, including — very clearly — Indigenous groups, whose treaty rights or traditional lands may be affected, and that the processes are transparent, efficient, and do not present unreasonable levels of uncertainty, regulatory litigation and political risk. Understanding the processes, timelines, costs and the end-of-process risks are extremely important to proponents who might consider investing in Canada and developing major projects.

I’ll go into a little bit of a good news/bad news story. We have 30 years of litigation on federal environmental assessment laws. It has been very litigious legislation, and that, in and of itself, should be concerning, but the positive side of that is that they’re valuable in that the courts have told us what you can do under federal environmental assessment and what you can’t do. It would be unfortunate, in my view, if those lessons learned from that litigation are not incorporated into the next version of the federal environmental assessment process.

We’ve known for over 30 years that the federal government can draft and implement constitutionally valid federal environmental assessment legislation. That was the Environmental Assessment and Review Process Guideline Order, or EARPGO, and it was the Canadian Environmental Assessment Act, 1992.

If you go back to the Supreme Court of Canada decision in Friends of the Oldman River Society v. Canada (Minister of Transport), in a nutshell, that legislation was determined to be constitutional, because it was merely procedural in nature. It was simply designed to gather information about the environment to be used as a component of other valid federal decision-making processes, usually in situations where the federal government had a decision to make in respect of that project, often a permit.

The court took comfort from the fact that there was a strong nexus between the federal assessment and clear federal jurisdiction, i.e., the issuance of a permit or a decision being made in respect of the project.

The CEAA, 1992, similarly, was only engaged when there was a federal decision to be made in respect of the project, quite often a federal permit. That was called the decision-based trigger, and I know you’ve heard a bit about that in your deliberations.

CEAA, 1992, moved away from a decision-based trigger to a project-based trigger. If your project was listed on a regulation, then you were under the legislation, and that was essentially the trigger. Then there was this definition of “effects within federal jurisdiction,” which I’ll talk about in a moment.

What that act did is it focused on major projects, which solved one of the problems under CEAA, 1992, but it started us down a road to another problem, as it was the predecessor to the Impact Assessment Act, or IAA.

The IAA was implemented, and a reference case was started by the Province of Alberta. Ultimately, it ended up in the Supreme Court of Canada in March of last year. In a 5-2 written decision by the Chief Justice, the IAA and the regulations were found to be unconstitutional with the exception of ten non-controversial provisions.

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What might be helpful to you to take away from that decision are some key points. First of all, the definition of “effects within federal jurisdiction” was much too broad, and it was not sufficiently linked to federal powers under the Constitution Act. The court said that even if it accepted that these were, indeed, federal effects, it did not drive the ultimate decision making. That decision-making process incorporated other concepts and other factors that were not federal.

What’s also important is that the court reinforced what we learned from the Supreme Court of Canada in the Oldman River case 30 years ago, and that is that not all constitutional powers can be used to the same extent to regulate in areas of the environment. The court goes into this in the decision.

As an example, where the province is the primary — I’ll call it — life cycle regulator of an activity — if it’s a local work or undertaking or if it’s something in relation to the development of natural resources — then it has broad jurisdiction to regulate on all matters, including matters related to the environment.

On the other hand, Parliament may also have a role, but it is typically much narrower in those circumstances where the province is regulating the activity. It might be in the case, for example, of a mining activity, which is primarily regulated by the province, but a permit is needed under the Fisheries Act, or there might be impact to fish habitat, but in that case, the scope of ability to regulate is much narrower, and it must be tightly confined to the boundaries of what the fisheries’ power allows under the Constitution Act.

What is also important is that if Parliament is going to regulate, for example, in respect to fish or fish habitat, it’s crucial to recognize that those powers also have boundaries, and not all effects, including adverse effects to fish or fish habitat, could be validly regulated by Parliament. That’s in the case law.

Now, conversely, where Parliament has jurisdiction over an activity — for example, in respect of an interprovincial or a national work or undertaking such as a pipeline or railway — it has broad jurisdiction to regulate those activities, as it’s the life cycle regulator of that. Where a jurisdiction has that broad regulatory authority, it typically regulates the entire life cycle of that activity from beginning to end and would have the expertise to make informed determinations in the public interest.

Respecting these boundaries is key to ensuring that federal environmental assessment is constitutionally valid, and the Supreme Court told us that the IAA was not and did not.

Getting to the amendments — and this is the last part of my submission, and then I’ll be happy to answer your questions — as I count, there are 32 amendments to the IAA with the stated intention of ensuring that the act is constitutionally sound. I do have significant concerns and doubts as to whether the amendments achieve that objective; although, that is an issue that will ultimately be decided by the courts.

I would suggest that, perhaps, a more productive assessment at this stage would be to ask the following three questions: First of all, is it clearly constitutional with the amendments? I would submit that it’s not. That’s unfortunate, because, as I said, we have case law that tells us how the federal government can constitutionally and validly regulate in these areas. Right at the get-go we have uncertainty, and, again, if we’re talking about providing certainty in process for all parties involved, including investors, we’re starting off with a very large question mark over the legislation.

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The second question is even if the court was to find that it is constitutional, is there a significant risk of it being used in an unconstitutional manner? I think that there’s a significant risk of that, which, again, means more litigation and more uncertainty in legislation that has historically been very litigious.

Thirdly, is it likely to achieve the objectives I described earlier, including bringing reasonable certainty in terms of process and outcome to project proponents? I don’t believe that it does.

I’ll talk briefly now about some of the key amendments. Recall that under the Impact Assessment Act, as it currently exists, the defined term “effects within federal jurisdiction” was found to be unconstitutional. That has been replaced with the defined term “adverse effects within federal jurisdiction.” I would suggest that that new definition adds — well, it does add — the concept of non-negligible adverse changes to things like fish and fish habitat, migratory birds and Indigenous groups. But that wording continues to introduce uncertainty into the application of the act. What is and what is not a non-negligible adverse change to, for example, fish or fish habitat is unclear.

We know that the act prohibits doing anything that may cause a non-negligible adverse effect, and that is backed by offence provisions and penalties as high as $8 million per day, per offence, and it imposes personal liability on senior officers of corporations. The effect is that if your project is on the list, it’s in the regulation, regardless of whether or not you require any federal approvals at all for the project, you are in because it’s impossible to know what the agency of the day or the minister would determine to be a non-negligible, adverse change. And if you get it wrong, the consequences are severe.

Importantly, the rationale for the exercise of federal jurisdiction to implement the prohibition remains unclear. I can tell a client whether they need a permit under the Fisheries Act, but I can’t tell them what somebody might think is a non-negligible effect to fish or fish habitat.

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The question will be whether the breadth of the newly proposed definition is sufficiently constrained to be constitutional. The screening decision is based upon this broad definition, and a full environmental assessment will be required by the agency if it is satisfied that the project may cause adverse effects within federal jurisdiction, i.e., non-negligible adverse changes to the listed areas. For me, it’s hard to see where we’ve moved from with the starting prohibition, which is based on non-negligible adverse effects. Information gets filed about the project, it’s reviewed, and the basis upon which it advances is essentially the same standard — non-negligible adverse effects. If such changes are anticipated, then a full environmental impact or impact assessment is required. The proponent will be thinking about time, cost, uncertainty, regulatory risk and litigation risk.

The decision-making process is now two steps for the minister and the Governor-in-Council. First, after taking into account mitigation measures, whether the adverse effects within federal jurisdiction — the non-negligible adverse changes — are “likely to be, to some extent, significant and, if so, the extent to which those effects are significant.” This is very ambiguous wording. It lacks clarity and opens the decision-making process up to various interpretations and the intended risks associated with that.

If the project does not pass the test, the proponent has the option of trying to redesign the project in a way that would be consistent with the decision, but then you’re really back to square one because you’ll be asking the same question. As I’ve redesigned it, is somebody at the agency going to think that, even as redesigned, it’s going to have a non-negligible change to areas of federal jurisdiction?

In summary, while the amendments may address some of the Supreme Court of Canada’s concerns with the IAA, an unnecessary constitutional question mark, at the very least, will continue to hang over the IAA if amended as proposed. There is a significant risk of the act being used in an unconstitutional manner, even if it is ultimately found to be constitutional with the attendant uncertainty and potential litigation. I do not believe, unfortunately, that it will bring the requisite certainty needed, in many cases, to efficiently and effectively get major projects that are subject to the act approved.

With that, I’ll end and welcome your questions.

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The Deputy Chair: Thank you.

Senator Arnot: This question is for both witnesses. Does this iteration of the Impact Assessment Act comply with the Supreme Court opinion in the reference case? I think both of the witnesses have said no. If that is the case, if there is a continued overreach by the federal government, how can this be cured? What are the amendments that you would put forward? Is this repairable?

What is the scope of your concerns, and what are the significant changes you would recommend? The Minister of Justice for Saskatchewan has made reference to those significant changes. I’m wondering how that can be articulated, and is it a safe prediction further litigation is inevitable without further amendments?

Ms. Eyre: Thank you. Mr. Gilmour has outlined very clearly what was before a litigious, somewhat dense and occasionally troublesome and what it is now and what it has become now since the advent of Bill C-69.

It was interesting that the other day that Mr. Gratton from the Mining Association of Canada referenced some “golden years,” as he called it, when environmental assessments were actually at their most efficient and collaborative. In other words, he was pointing to the fact that this is not an insurmountable hurdle and has happened before when the federal and provincial governments and their respective regulatory structures stick to their respective lanes and collaboration and working together is possible. As he put it, I believe, cooperation was present, but everyone stuck to their knitting.

To the question of what we do with this act, I think it has been very clearly laid out how complex it remains, how vague and how prone to more litigation and how unfortunate that is in terms of establishing the certainty that we so desperately need in this country over assessments and the process through which projects go. I pointed out in my comments some of the unevenness of application, where you have the — but not in other projects and so on — the buyer’s remorse that has been expressed by the CMA itself.

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The analysis is being done, to your question of what could be fixed. But some of the fundamental tenets of this new iteration of Bill C-69 are so troubling and so difficult to overcome in terms of clarity, “adverse effects,” absolutely being one of them. As mentioned, the proposed amendments replace effects within federal jurisdiction with adverse effects within federal jurisdiction. The problem with that is that the federal government can defer assessments to provinces as long as those assessments take into account adverse effect within federal jurisdiction with “adverse,” of course, being in the eye of the beholder. What are non-negligible adverse effects, as pointed out by Mr. Gilmour? It is an adverse effect whether you add “non-negligible” to the front or not. The question becomes: Whose jurisdiction does it fall under to assess them and what does that mean? And as I say, it’s in the eye of the beholder. It’s very subjective. I think there are very troubling aspects to that. Certainly, Saskatchewan has grave concerns around that going forward.

The amorphous public interest also still applies. There is some good news, if we can call it that, in that the act is no longer triggered simply by GHGs so the new definition of “interprovincial effects” is limited to water pollution and interprovincial rivers. Mr. Gilmour and I would both agree that the problem is the “incidental” part. If you have a highway being built between Regina and Saskatoon and it crosses a stream that has fish in it, traditionally, I think it was relatively clear that the fish were incidental to the highway. On both micro and macro levels, that has become vague and ambiguous.

For any project, whether it is power generation, oil sands, highways, ring of fire or oil development off the coast of Newfoundland or LNG at Saguenay — go down the list — my response would be it’s no wonder that, for example, $9 billion was pulled out by Berkshire Hathaway in the LNG Saguenay project because of the uncertainty that this has created.

I think it is difficult to say that if this could change based on what’s currently before us, I think it would be good to go. I think that’s the problem. It isn’t, and the surgical nature of the changes have been so surgical that the fundamental tenets remain, and they remain troubling.

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Mr. Gilmour: Thank you for the question, senator. As I said in my submissions, having a constitutional question mark over the act is problematic right from the get-go. We knew 30 years ago how to write a federal assessment statute that was constitutional.

We have to read the case law and we have to look at what the courts have said in the past under all versions. From that, I think you could figure out a piece of legislation that is constitutional and workable. While the devil’s in the detail, I think going back to a decision-based trigger as opposed to a project-based trigger would be one element that would grant certainty. What you’re doing then is understanding why the federal government is engaged. You need a permit for the project. It’s on federal lands. The federal government is funding the project and is the proponent of the project. That’s clearly linked to federal jurisdiction. It takes away that question mark.

The next element is to look at some of the case law about how we ended up in court on a number of cases because of ambiguous wording in the legislation. There are a number of examples of that, in which tightening up the language in the legislation — the wording, the drafting — is important to bring more certainty to what the process is and how it works.

Timelines are important. That has moved but there is so much opportunity to stop the clock, and the timelines are ultimately uncertain. I think fundamentally, though, what will help us in getting major projects is that both levels of government stick to their jurisdictional lanes. I don’t think that that could have been stated any more clearly in the Supreme Court of Canada decision. If you regulate the activity, which is often the province for local works and undertakings, then that should be the decision maker. If the federal government has a role then they should engage in that process but not drive the process. And if there is a public interest determination, it should be made by the province in that case. Having two public interest determinations? What is the outcome if one is yes and one is no?

Conversely, on the federal side, where Parliament has the expertise and jurisdiction to regulate — that’s the primary regulator, and if the province has a role, it should be similarly incidental to that function. I would like to add one or two more comments.

In addition, we need to eliminate the political risk at the end of the process. I think one thing to consider is that if we have life cycle expert regulatory tribunals that regulate these activities — whether federal or provincial — consider whether or not that’s the entity best able to make the public interest determination, because if you have someone who invests in this process, follows the rules, gets the regulatory approval, goes through the inevitable litigation at the end of the day and is successful, but then to have that overturned by a political decision, I think you can understand how that affects investor confidence. Thank you.

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Senator McCallum: Thank you for your presentations.

I was in the committee when the bill came in, so that would have been 2018. For the first time, I realized how the resource extraction companies didn’t care about First Nation lands or lives. That’s when I started looking at this.

You talk about public interest determination. Where are the Indigenous people in this? Because they are always falling under inter-jurisdictional areas. When you say that you want to minimize risk in the business community to compete and prosper, First Nations have not prospered. They’ve been left behind. That was why, when we looked at the bill, I put amendments in there because I was concerned about the First Nations and the lack of basic rights. They are not even considered.

You ask whose jurisdiction it is when most of the projects are on Indian lands and there are interprovincial waterways when you look at the tailings ponds.

When we look at all of that and the adverse effects, how would you word that to protect the First Nations so that it is not all just about money, and that they get a fair share of what is happening here? It worries me that this has come forward, and I don’t want First Nations to fall even farther behind now. You talk about tightening the language. Give us an example of what you would put instead of “adverse effects.” Can both presenters speak to that?

Mr. Gilmour: Thank you, senator. You have raised an important question and a complex one. I won’t speak on behalf of Indigenous groups and what works for them. I can tell you that when Alberta went to the Supreme Court of Canada, certain Indigenous groups supported Alberta’s position and wanted the legislation to be found unconstitutional.

There were Indigenous groups that supported Canada’s position, too. But my thinking on that is that there is not one position with regard to this legislation and how it affects Indigenous groups.

I can tell you my own personal career — in terms of resource development and engagement with Indigenous groups — is that the significant trend that I’ve seen, which I think is good, is that we’ve moved from a process where, if a project was developed, there was funding for traditional land-use studies and there might be jobs and business opportunities, and those were all good, but I think what we’re seeing more currently is for greater participation of Indigenous groups in projects that might affect them, including taking equity positions in projects.

I think that’s an opportunity, but I can’t speak on behalf of Indigenous groups. I know enough to know that there is not one voice. There are multiple voices with respect to that question.

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Ms. Eyre: Thank you very much for the question. I would echo that. With the deepest respect, I think one of the issues is the complexity that not only Bill C-69 introduced into the process of approvals, but these latest recent amendments as well. I think that if the goal of the original bill was to streamline things — and that was one of the stated goals — it didn’t achieve that, because — as I stated earlier — you have some projects which have been approved very quickly, such as the Baie du Nord project, and others that are not, which are in holding patterns, which are “to be determined” in every sense. I think it is that increased ambiguity, which isn’t in anyone’s interests, including when it comes to Indigenous First Nations’ engagement in major projects.

I would point to the last go-round, in which there was quite a lot of talk about the Northern Gateway Pipelines Project, for example. To Mr. Gilmour’s point about complexity, there were many First Nations groups in B.C. who were in support of that project, and there were those who weren’t. There is no single position or opinion that those groups all hold. If the goal of Bill C-69 was to make things clearer and more predictable, in terms of the steps that everyone has to go through, including proponents of the project, the governments involved and Indigenous stakeholders, it didn’t achieve that.

We’re left with not only an unconstitutional bill, but potentially unconstitutional amendments. I think that really isn’t in the interests of anyone. The Supreme Court has held that there are grave issues with this, and I don’t think the amendments solve that. That’s the problem we’re confronting.

(French portion deleted)

Mr. Gilmour: Thank you, senator, for the question. I don’t think we want perfection. If we had perfection, I would probably put myself out of a job.

However, while I think we should not expect perfection and we won’t have perfection, I think we can do significant things to reduce the degree of uncertainty. I will go back to my point being —

Senator Miville-Dechêne: For example, what would you put instead of “negative adverse effects”? What would be your way of qualifying it?

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Mr. Gilmour: First of all, I would tie it to a federal decision. If it is tied to a federal decision, then I understand the jurisdictional basis upon which the project is being assessed by the federal government. So if I am doing a mining project, I say, “Okay, what do I need to do to get a mining project?” Well, I will be pulling out a bunch of provincial statutes because I know that the life-cycle regulator of that activity is the province. Then somebody might come to me and say, “What about the federal side?” They might ask if I am affecting fish habitat. If the answer is yes, then I need a federal fisheries permit. The federal government has a decision to make in respect of this project. Then it is entirely appropriate for the federal government to implement over top of that their own assessment project, and maybe what they do is substitute that in with the province and participate in a way that is specific to their jurisdiction.

But in my mind, having these virtually boundless definitions of adverse effects within federal jurisdiction that result in non-negligible changes is not remotely close to having a structured legislation that’s based on clear federal decision-making.

(French portion deleted)

Senator Wells: Thank you, chair, I will be concise.

Mr. Gilmour and Minister, thanks very much for your presentations. It gives me grave concern when I hear the Saskatchewan Minister of Justice and Attorney General say that she has grave concerns. So on that, does this bill in its current state — without amendment — open any project process to further delay via court challenge because we don’t get it right?

Mr. Gilmour: If I understand your question correctly, Senator Wells, yes, I think it does. Again, it goes back to the ambiguity as to why the federal legislation is engaged in the first instance. Again, it is more straightforward if a client decides to build a project, asks if it will affect fish and then asks if they need a Fisheries Act permit. The answer is yes, and I understand why I’m there. But it is more problematic when someone comes to you and says that they are building a project and don’t require any federal permits at all, and then they ask if they should just go to the province. The answer is no, if you are on the regulation. Then we get into litigation risk. When you look at the language being used, it opens the door to various interpretations and opportunities — as we’ve seen under prior versions of the federal assessment legislation — to take some of these matters to the courts.

I will give you one example. Under the Canadian Environmental Assessment Act, 2012, or CEAA 2012 — and this definition was carried through the Impact Assessment Act — the definition of the designated project includes not only what is on the regulation. When you go to the definition, it says that it’s all things that are incidental to that. What are all those things that are incidental? That has led to specific litigation that has caused delays in projects, simply on one definition within the act that is not precisely drafted.

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Senator Wells: When the Senate is permitted to do its job in the time that it needs, the intent is that decisions under the legislation don’t end up in the judicial process. That’s why we’re here. That’s why we look at it for the second and third time sometimes.

The other thing — and I will finish on this, with respect to giving colleagues a chance as well — I think we’ve seen this federal government welcome process uncertainty in order to allow them to determine that this was a business decision by the proponent, not taking into account that uncertainty for investors goes into the calculation of business uncertainty.

Ms. Eyre: Right. If I may, I would say to that, no guff. The instances are well documented — ring of fire. Bill C-69 is explicitly mentioned as creating investment uncertainty. I’ve listed a number of others.

The point is, in some cases, of course you have situations where a proponent may be in sync with the federal government or a provincial government and in other cases not. The point that you then have all these different lanes with all these different players in the mix is precisely why uncertainty is so destructive to productivity and the economy.

I don’t think it is too much to ask as investors into this country but also as provincial governments, that the rejigging of the second go-around of this legislation would be clearly constitutional. The fact that there is so much doubt, again, is the last thing that we need for investments in this country. When you have all the uncertainty over phrasing — adverse effects and incidental and public interest, all the things that remain around stopping the clock and cabinet weighing in on decisions case by case, as has been stated. Well, it’s case by case, all right. It is very problematic to be back in this situation. I think that for all the reasons that have been stated, there are grave concerns as a result.

(French portion deleted)

Senator Galvez: First, to both of you, I would like to say that this committee has received other lawyers who have said exactly the opposite of what you have said, which is that these amendments solve the constitutional conundrum. When I look at the backgrounds of the lawyers who have told us, it’s interesting to see that the environmental lawyers say this is good, but lawyers defending oil companies, companies doing remediation, energy companies and those polluting are saying it’s not going to work.

The subject is very complex. Science has evolved a lot. It took us 20 years to review the impact assessment, which was too long. So the last time, we included cumulative effects, secondary effects and climate change. These are things that need to be understood for every specific project.

As senators — and maybe you have a different idea of what a senator should do — we have been told that we have to care for vulnerable populations and regional populations. When we look at these energy projects, they are so huge that they impact multiple jurisdictions, provinces, as well as water, air, sea and groundwater. Groundwater is all over. It is many provinces and territories.

How can we define this thing on negligible or jurisdictional when we know that toxicity doesn’t have borders? Greenhouse gas affects all of Canada, not just one province at a time. Rivers are connected in watersheds.

So I will agree with my colleague Senator Miville-Dechêne that the certitude that you are looking for is impossible to get, and we need to go to this trial and error, and learn. Also, the courts need to have experts in the environment and toxicology so they can understand these issues.

I don’t know if you want to react to what I’ve said.

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Ms. Eyre: With respect, there are quite a lot of question-begging in that question around lawyers who represent “polluters” versus lawyers who don’t. That would be a somewhat controversial stance that they would certainly consider themselves that way.

As you pointed out yourself, the issues around this are so complex, but the Supreme Court found that this bill, Bill C-69, was unconstitutional. You can say that we should go back through the same route, if you like, by trial and error, but there are better paths. Some of those have been outlined.

The confusion this recreates — but also the system that we had of some degree of cooperation and hammering it out before Bill C-69 came along. It’s not as if environmental assessments were not done prior to Bill C-69, and that is key.

Keep in mind that Bill C-69 or the carbon tax reference are all on very specific issues, but Bill C-69 was held to be unconstitutional by the Supreme Court. Certainly, my submission would be that there are risks to that happening again in terms of these amendments, because they just don’t address profoundly enough what the Supreme Court raised as concerns.

Keep in mind, senator, about the environment knowing no borders, obviously that was sort of the impetus for the peace, order and good governance argument at the Supreme Court — the real trump card that was used there — but that case was really on the very narrow issue of price stringency.

The Supreme Court decision in the carbon tax reference was very narrowly decided, as you know, but it did not provide that the federal government could simply weigh in on every set of regulations, every assessment it wanted to, and down the road, down the line. That’s where we find ourselves, not only with Bill C-69 but a raft of other overreaches — certainly in our submission — of federal jurisdiction into provincial. We have a federation for a reason. We are proud of it and we love it, and it is what it is. It’s the complex animal that it is between jurisdictions, and that’s the dance.

One can say it simply can’t be so that this is ever an issue jurisdictionally, but obviously the Supreme Court has found it to be so and very narrowly didn’t on the reference case for the carbon tax.

It’s certainly the Senate’s work, with all due respect, and it’s important that we all do this work to prevent this from becoming a trial-and-error, case-by-case experimentation because productivity in this country literally cannot afford too much more trial and error.

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Mr. Gilmour: Thanks for the question, senator. I will clarify that I’m an environmental lawyer and have been an environmental lawyer for my entire career. I also have a science background. I have a master’s degree in environmental science, so I know a little bit about the science as well.

I would suggest that the understanding of environmental effects continues to evolve outside of the environmental assessment process as well. So whether it’s the Department of Fisheries and Oceans or Environment and Climate Change Canada, they have jurisdiction over multiple issues, and their science and understanding of issues continues to evolve. It’s not all within the environmental assessment process.

The other thing to consider is, whether it’s energy resources or critical minerals, those resources will be needed by Canada whether it’s the current economy or the future economy. They will be needed by the world. We’re lucky to have the bounty of resources that we have in this country. I think the environmental laws and the rule of law and all the laws that go around approval of projects and the processes that we have means that we can actually develop these resources better than anybody in the world. If we’re going to develop these resources that we need, this is the place to do it. Those would be my views. Thank you, senator.

Senator Anderson: Thank you both for your testimony. My question is for the minister. I’ll build a bit on Senator McCallum’s question. Currently in the IAA, section 33(1) states:

The Minister may only approve a substitution if he or she is satisfied that

(d) the process to be substituted will include consultations with any Indigenous group that may be affected by the carrying out of the designated project;

Now, you spoke about the ambiguity of the IAA, and I just want to read now the proposed amendment in this bill. The proposed amendment reads:

Paragraph 33(1)(d) of the act is replaced by the following:

the process to be substituted will include consultations with any Indigenous group that may be affected by the carrying out of the designated project;

And it goes on and adds:

or the consultations will be undertaken under an agreement or an arrangement referred to in paragraph 114(1)(f)

And 114(1)(f) reads:

enter into agreements or arrangements with any jurisdiction for the purposes of coordination, consultation, exchange of information and the determination of factors to be considered in relation to the assessment of the effects of designated projects of common interest.

Now, my concern lies with the fact that they’ve now added “or” so it’s not “and.” There is now an option to either consult with Indigenous peoples or to enter into arrangements or agreements that do not specifically reference Indigenous peoples.

Can you tell me, minister, what your initial thoughts are on this proposed amendment?

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Ms. Eyre: It would be fair to say that there is broad confusion over it, and rightfully so. To all the points that have been made, is that really an advantageous goal to the exercise? Bottom line, the federal government can still deny approval for a project that is only incidentally within federal jurisdiction, so that right there is a problem. Whether it’s an “and” or an “or” in terms of the consultation with First Nations, the fact that there were more clearly delineated lines prior to this act and that all of them have become blurred — be it with consultation with Indigenous or not, be it with the provinces or not, what constitutes “incidental” or not — all the words that we have talked about are problematic.

The previous wording before was “adverse effects,” and we’ve talked about this a number of times. It’s important to keep in mind that the wording before was “adverse effects within federal jurisdiction.” Of course, it’s subjective right there. Now it’s “non-negligible adverse effects.” Orwell would have a field day with all of this. That’s the problem. That creates a problem for the Indigenous groups where their lands come into the consideration. Obviously, it’s an issue with provincial projects and then where incidental begins and ends.

I will also say that some of what you read refers to the consultation side of it. If I may simply add, it’s indicative and troublesome that even to get to this point with the amendments we have before us that the lip service, I would call it, on consultation has been just that. There has been no working with the provinces to any degree. I can’t speak for Indigenous consultation, but with the provinces, no opportunity to provide any feedback. That’s the Ministry of Environment. We at Ministry of Energy and Resources and Environment were informed what the changes would be rather than being asked for any feedback or collaboration. Same for Intergovernmental Affairs. There are no technical pieces, just general themes.

Surely that’s an issue for provinces, for companies, potentially, for investors, but also for fundamental stakeholders and, to your question, for Indigenous groups as well. So the fact that we are at this point this late in the proverbial day and still battling or analyzing and assessing and dissecting these definitions and these sections and subsections is very worrying.

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