The Notorious Bill C-69 Becomes Law in Canada

By JoAnn P. Jamieson and Sarah Levine

Late on June 20, 2019, Bill C-69 was passed into law by the Senate notwithstanding strong and vocal opposition from across the country. Bill C-69 enacts the Impact Assessment Act, the Canadian Energy Regulator Act, and amends the Navigation Protection Act, renaming it the Canadian Navigable Waters Act.

The Senate passed Bill C-69 by a final vote of 57 – 37 and received Royal Assent shortly thereafter. The Senate originally recommended 188 amendments to the Bill, however, the House of Commons only accepted 62 of those amendments as written, and another 37 after alterations. The final version of the Bill passed by the Senate largely resembled the version of the Bill tabled by the Federal Government in the House of Commons on February 8, 2018.

The New Impact Assessment Process

Bill C-69 introduces a new, single agency - the Impact Assessment Agency (the “Agency”) - responsible for all federal impact assessments (“IA”) unless referred to a review panel. The new process expands the scope of federal assessments from potential impacts to the environment to include effects from the designated project to health, social or economic conditions. Notably, the National Energy Board is replaced by the Canadian Energy Regulator and will no longer conduct impact assessments on projects within its jurisdiction (e.g., interprovincial pipelines), as those reviews will be conducted by the Agency as well.

The new IA process retains the concept of a “project list” trigger, similar to what was found in previous legislation. Consultation on the criteria to be applied and the scope of the new project list has been ongoing for the past year. As the new regulations designating certain projects have not yet been released, it remains uncertain to what extent additional projects will be captured under the new legislation. Further, the Minister of Environment and Climate Change retains the power to designate other physical activities if he or she is of the opinion that adverse effects to federal interests or public concerns warrant designation.

The new IA process maintains the same basic structure of the environmental assessment process under CEAA, 2012. There will be three basic phases to an impact assessment - a planning phase, an assessment phase and a decision-making phase. The new planning phase is essentially a more extensive “screening” phase from what was provided for under CEAA, 2012 and contemplates earlier, more extensive dialogue with the public and Indigenous peoples to identify and discuss issues. This stage can last up to a maximum of 180 days from when a proponent submits an initial description of the designated project to the Agency. This stage ends when the Agency issues the notice of commencement and provides the proponent with tailored guidelines to direct the drafting of its Impact Statement, a document prepared by the proponent that identifies the potential impacts of a designated project.

The new IA process still legislates maximum timelines for reviews – now 300 days for Agency assessments (down from 365 under CEAA, 2012) and 600 days for Panel reviews (down from 720 days). Further, there are no longer “stop the clock” provisions that could suspend these review timelines under CEAA, 2012. However, there still are opportunities for the timelines to be extended or suspended. For example, the Minister would be able to extend the time period for the early planning stage up to 90 days. The Governor in Council could further extend this time limit, if required.

The Section 22 Factors

The impact assessment of a designated project, whether it is conducted by the Agency or a review panel, must take into account numerous factors (over 20) including an assessment of the changes to the environment and to health, social or economic conditions and the positive and negative consequences of these changes that are likely to be caused by the carrying out of the designated project.

Of note are three factors new to this legislation that have been the subject of considerable attention:

• the contribution of the project to sustainability;
• the extent to which project may hinder to contribute to Canada’s ability to meet its environmental obligations and climate change commitments; and
• the intersection of sex and gender with other identity factors.

“Sustainability” is defined in the new legislation as “the ability to protect the environment, contribute to the social and economic well-being of the people of Canada and preserve their health in a manner that benefits present and future generations”. No further guidance is provided as to how this, or these other two novel criteria, can be met.

Greater Participation of Indigenous Peoples

The new IA process emphasizes the need to consult with and meaningfully consider project impacts on Indigenous peoples and their rights early on in the review process and in greater detail than is currently required under CEAA, 2012. The section 22 factors expressly require consideration of Indigenous knowledge and culture as well as any effects assessment conducted by or on behalf of an Indigenous governing body that is provided with respect to the designated project.

Decision Making   

The basis for the decision on whether or not a designated project proceeds will also be different from what we know today. Under CEAA 2012, the decision making is based on whether the effects are significant and justified in the circumstances.

Under Bill C-69, the decision must be based on the assessment report and whether the adverse effects of a designated project within the federal jurisdiction are in the “public interest”. In making the public interest determination, the Minister (or Governor in Council) must have regard to the following:

• the extent to which the designated project contributes to sustainability;
• the extent to which the effects of project are adverse;
• whether the implementation of the mitigation measures are considered appropriate;
• the impact of a project on Indigenous groups and Indigenous rights; and
• the extent to which effects of a project hinder or contribute to Canada’s ability to meet environmental obligations and commitments re climate change.

Conclusion

Bill C-69 is the new law in Canada. Short of a new Federal Government replacing or overhauling this piece of legislation, it appears that Bill C-69 is here to stay.

While the basic structure of the new IA process remains the same, the emphasis on Indigenous participation, sustainability and climate change factors introduces new criteria to be considered and increases the uncertainty associated with an already protracted federal assessment process, leaving it hard to imagine that Bill C-69 will achieve one of its stated objectives of more efficient and timely decision-making. In particular, it remains to be seen whether a large inter-provincial pipeline or a carbon-emitting, resource project could ever be found to be in the public interest going forward.