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Senator Doug Black's Bill C-69 Second Reading Speech

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Mitchell, seconded by the Honourable Senator Pratte, for the second reading of 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.


Hon. Douglas Black: Honourable senators, I have the pleasure and the privilege this afternoon to rise to discuss Bill C-69. Senators, I’m urging us to pause and get it right.

Bill C-69 is the bill that is designed to completely restructure the natural resource regulatory regime in Canada. I would suggest, senators, without hyperbole, that in fact this might be the most important piece of legislation that we will deal with in this chamber in this session. We need to understand that this legislation covers all segments of the resource sector. That would be forestry, mining, renewables such as wind farms, fishing, nuclear, pipelines, and offshore oil and gas development — in summary, the Canadian resource economy. It is a bill that will fundamentally affect how our economy functions going forward.

It’s also, in my respectful submission, a bill that allows us to demonstrate to Canadians that this is a place of sober second thought.

Now, there’s so much we can agree on amongst us all. We can agree that natural resources are Canada’s family business. The sector employs just under 2 million people, and it generates a little less than 20 per cent of our GDP per year. That amounts to hundreds of billions of dollars. We agree on that. We agree that we can and we should develop our resources responsibly.

We also agree that we must protect our natural environment. It is our great gift in this country, and we must all commit ourselves — and we agree we must — to protect it. We also agree that First Nations’ meaningful engagement in resource matters is essential. And I think, honourable senators, we can also all agree that the current regulatory system is not serving us very well.

So changes need to be made. We agree on that. The former government thought that, and they endeavoured to readjust the regulatory balance and, with respect, they got it wrong. This government is repeating that mistake by swinging the pendulum too far in the other direction, and we need to pause and get it right for the benefit of this country because we’ve gotten it wrong for over a decade.

In addressing the problem of making our regulatory process more balanced and responsible, in my submission, the government has missed the mark with Bill C-69. They have designed a regime that actively discourages the development of projects. They have failed to find any balance between our agreed need for responsible resource development and our demand to respect the natural environment and our consultation obligations.

So we must pause and get this right. The government recognized that themselves. That is why they appointed the panel to modernize the National Energy Board, and that panel reported to government. That is also why this government appointed the resources of the future table — more on that later — to guide the government in developing our resource riches for the next number of decades.

Honourable senators, unfortunately, both of those reports undertaken by the Government of Canada have been ignored by them in drafting Bill C-69. The significant recommendations of the NEB modernization panel were completely ignored. The table recommendations were tabled after this bill was tabled.

Many others recognize that we have a problem here, too. I mentioned the resources of the future table. This was an initiative out of the Prime Minister’s Office suggested by Dominic Barton, former leader of McKinsey, who was asked by the government to help them define how to move forward economically.

The resources of the future table was led by Lorraine Mitchelmore, a prominent Newfoundlander who also then served as the CEO of Shell Canada. She was assisted in her work by leaders in the environmental industry, the power industry, energy, mining, the resource industries of this country.

What they said was very clear. They identified the opportunity for Canada on resources. They indicated that currently we are adversely affecting our competitive position in Canada, and we are crippling — their language — the sector’s ability to thrive and build.

They also said that the current system we have is a block to innovation. They also were good enough to point out that according to the World Bank’s ease of doing business index, Canada ranks 34 out of 35 among the OECD countries. We’re only ahead of Slovakia.

Then they went on to turn their attention to Bill C-69 specifically, stating that while the intent of Bill C-69 is directionally positive, implementation of the bill in its current form could limit greenfield projects. That is to say any new project in Canada. Important point: These projects are generally in Indigenous communities and are for these communities a significant opportunity for growth and equity partnerships.

Honourable senators, this report was ignored in the drafting of Bill C-69. That’s why we need to pause to make sure it’s reflected on.

You would all have seen the Globe and Mail editorial of September 27, “Ottawa needs to change its pipeline act,” with a call in the last sentence of the editorial for us senators to listen to the critics of Bill C-69. I had my office send a copy of that to you all.

You’ve also heard, undoubtedly, from various think tanks, including the MacDonald-Laurier Institute, the Fraser Institute, the C.D. Howe Institute, the Conference Board of Canada and the Canada West Foundation, who are saying that we need to do better than we’re currently doing. Specifically, Canada West said the following:

. . . although perhaps well-intentioned, Bill C-69 threatens to make things much worse at a time when we can’t afford that risk.

Unfortunately, the amendments made at the House of Commons committee not only do not address the major issues, but in some cases exacerbate them. There is increasing consensus among leaders, investors, First Nations groups, unions, academics and others that Bill C-69 is so problematic that it is not fixable.

So why is opposition to Bill C-69 so broad-based across resource industries in this country and so fierce? Why is it that now 17 associations representing the resource industries across this country are opposed to Bill C-69? I am aware of only two associations that are indicating support at some level for the bill.

Why is it that unions — the Boilermakers, the Laborers’ International, the Teamsters, the International Union of Operating Engineers — are opposed? Why is it that some First Nations development groups are opposed? I draw your attention to a press release issued yesterday by the Indian Resource Council titled, “Indian Resource Council urges senators to oppose Bill C-69.”

Let me read:

The Indian Resource Council, an Indigenous advocacy organization which represents the oil and gas and associated economic interests of over 130 Indigenous communities in Canada, is urging Senators to oppose Bill C-69.

Bill C-69, which would drastically alter the review process for projects in the energy sector, would harm one of Canada’s greatest economic success stories, namely, the emergence of Indigenous communities and companies as major and successful participants in the energy sector. The Canadian Chamber of Commerce, at their annual meeting in Thunder Bay last week, with Resolution No. 1 called upon us to fix Bill C-69.

Having practised law for close to 40 years and having had the privilege for many years of being involved with regulatory matters across several industries, I can simply tell you that if I was consulted by a client and asked whether they should proceed with a major project in this country under Bill C-69, I would say no. I would say, “The risk is too high. Put your money in another jurisdiction.” And I would not be alone in that.

We’ve heard from Enbridge, Imperial Oil, TCPL, Suncor. Indeed Hal Kvisle, an individual many of you may know, who was recently the CEO of the year in Canada and who was for many years the president of TransCanada pipeline and then of Talisman Energy, said the following describing Bill C-69:

. . . an absolutely devastating piece of legislation. . . .

I don’t think any competent pipeline company would submit an application if Bill C-69 comes into force.

So what are the problems with Bill C-69? There are many, many problems because it’s a 400-page bill. I’m going to summarize what the major problems are.

The first problem is that there is no balance. There is a focus on making sure we get the environmental issues right. We all agree, check. We all agree with that. The government’s intention is to ensure that they can meet their obligations under the Paris accords. We can discuss that. They obviously want robust consultation. Great. So we all want robust consultation, not only with First Nations groups but with other stakeholders. But what they’ve completely forgotten is the business side of the equation, the economic side of the equation. There is no mention in the lists — and I would refer you, if you want to go to sleep, pick up the bill and check sections 22, 63 and 84, which outline the criteria that must be considered by either the panel, the impact assessment agency or the minister. There are no economic factors contained in those lists, period. There is reference in the preamble to the need for economic relevance of factors, but I can tell you again as a lawyer that the specific always trumps the general.

What we have is a situation where absolutely no consideration is being given to Canadian prosperity, competitiveness, assessing world markets, protecting jobs, creating vibrant communities or maximizing the economic benefits to Canadians of our resource blessings. The legislation is silent.

The second point is that the whole legislation is back to front, upside down. The Government of Canada has every right and every responsibility to set forth a policy guideline. So if you do not want to have a pipeline built from the oil sands of Alberta to wherever, just tell us. Tell us up front. So policy issues in any sophisticated regulatory regime outside this country are dealt with as number one, so that the proponents know the policy framework. Then the officials implement that policy framework. Once that’s done, if the project meets what the regulators determine, then the project advances; if it doesn’t, it doesn’t. The current situation creates too much uncertainty. You need to know that that is the NEB modernization panel’s principal recommendation, that the approval process is back to front.

Also, on timelines, honourable senators, I would say we’ve heard a great deal that this bill makes timelines shorter than the Canadian Environmental Assessment Act, 2012. With the greatest of respect, that is not accurate, and there are many sources other than me who can indicate it is not accurate. I think I’ve said before in this chamber that we have to consider the number of times that the pause button can be pushed, the ability for the minister to delay and the ability for cabinet to delay any number of times. It’s the language which is actually used.

As well, as I think we all know, all the major law firms have issued reports to their clients in respect of this. I think they are all saying the same thing, but I’m going to focus on what Osler, Hoskin & Harcourt has said. The leadership of their practice said:

. . . there is nothing in these legislative proposals that suggests future assessments [of designated projects] will be in any way streamlined, more efficient, or more effective. . . .

The timelines in the IAA are very long and can be extended . . . .

I have noted that.

In addition, the minister can, through regulation, set out activities that result in the timelines being suspended. I suspect that, as is currently the case, the clock will stop running when the agency panel is waiting for information. That is current practice. Therefore, these legislated time limits are no guarantee of more timely review.

Regarding the open mic, the fact that there is no requirement in the new legislation for standing, having practised law for 40 years, I can tell you I’ve never seen a circumstance where you don’t have to have an interest in a matter to appear. I just can’t show up at the courthouse in Calgary and appear. I have to have a connection to what’s going on. That has been thrown out the window. It is what I’m calling the open mic, own the microphone, and it is destructive for an ordered process, and in fact it provides a tool for those who are not interested in an ordered process. There are a number of others that I draw your attention to ever so quickly, because we’re going to have lots of opportunities to discuss this.

You need to know, senators, that, for proponents, there is no way to know today whether your project is caught by Bill C-69 because the so-called designated list that sets out whether it’s going to apply to you is not contained in the legislation and will be in the regulations. Literally, if I’m a proponent today, I don’t know whether this will apply to me. I would suggest that that’s not a very good way of doing business, and it’s not a very good way of building certainty amongst proponents.

You need to know as well, senators, that there’s a new provision — likely wrong at law, but nonetheless — whereby if you sell product to a cement plant in China, the GHG emissions from that cement plant in China need to be considered by the panel. I query whether that’s within the terms of law, but that’s in the terms of the legislation.

We’ve heard much about the criteria around the intersection of sex and gender. There it is.

I would say as well the Canadian Nuclear Association is deeply unhappy with this legislation based on safety reasons — we can go into that more fully at a later time — as are the Canada-Newfoundland and Labrador Offshore Petroleum Board and the Canada-Nova Scotia Offshore Petroleum Board.

I had the privilege of being in Newfoundland last Friday to meet with energy officials, including the minister in that province, and they are deeply concerned that one of Canada’s greatest energy resources, the Newfoundland offshore, is going to be stunted in its development because of Bill C-69.

In conclusion, I would urge us to pause, as so many entities and organizations out of here are, to get this right. We owe this to the country. We have not gotten this right for over 10 years now. There’s no blame to this government. We just haven’t gotten it right. We, the Senate, because of circumstances, can now play a major role in insisting that we do get this right.

The government suggested to us that there’s certainty in the new legislation. I’m telling you — and I’m sure you’re starting to find out by the number of folks reaching out to you — that the only certainty, in my view, is enhanced uncertainty.

I would simply say we need to listen to the NEB panel. We need to listen to the table of resources. We need to listen to First Nations. We need to listen to unions. We need to listen to those who have points of view that may be different from our own, and we need to ensure that this consultation is exhaustive.

Honourable senators, my final thought, because this is so important to our economy, is last year you’ll recall Minister Morneau’s attack — my language, no one else’s — on small business in this country.

It was so important that the Senate Finance Committee toured this country. They went into the town squares of this country, and they visited with people who were affected. Why, on something so significant, should we expect people to come to us? I’m arguing strongly that from Halifax, to St. John’s, to Vancouver and Victoria, and to the North, whatever committee has the privilege of looking at this needs to hear the interests in this country exhaustively because we are the last stop on this train.

If we don’t do our job responsibly and in a considered fashion, building on what we agree on, I run the risk of feeling that future generations are going to think I missed the opportunity to build on our prosperity while building relationships with First Nations groups and protecting our environment. It can be done if we’re smart, and this is the place that needs to ensure we’re smart.

Thank you, honourable senators.

 

Link to Debates of the Senate (Hansard)

"We must pause and get this right."
- Senator Doug Black
"The government has missed the mark with Bill C-69. They have designed a regime that actively discourages the development of projects. They have failed to find any balance between our agreed need for responsible resource development and our demand to respect the natural environment and our consultation obligations."
- Senator Doug Black

Click to Listen to the audio from the Senate Chamber

"Bill C-69, which would drastically alter the review process for projects in the energy sector, would harm one of Canada’s greatest economic success stories, namely, the emergence of Indigenous communities and companies as major and successful participants in the energy sector."
- Senator Doug Black
"What we have is a situation where absolutely no consideration is being given to Canadian prosperity, competitiveness, assessing world markets, protecting jobs, creating vibrant communities or maximizing the economic benefits to Canadians of our resource blessings. The legislation is silent."
- Senator Doug Black

"The whole legislation is back to front, upside down."
- Senator Doug Black
"The minister can, through regulation, set out activities that result in the timelines being suspended. ... Therefore, these legislated time limits are no guarantee of more timely review."
- Senator Doug Black