In overhauling Canada’s regulatory review process Bill C-69 has good intentions, but as written it would endanger the very things it is trying to fix.
In Canada, major infrastructure projects, such as the building of an interprovincial pipeline, a nuclear energy facility or large-scale mine are subject to federal review. For energy projects, that review is governed by two pieces of legislation: the National Energy Board Act (NEBA) and the Canadian Environmental Assessment Agency Act (CEAA).
Bill C-69 is a piece of government legislation titled “The modernization of the National Energy Board and Canadian Environmental Assessment Agency.” It seeks to overhaul both the NEBA and CEAA, changing how major infrastructure projects are reviewed and approved in Canada. Changes would include replacing the National Energy Board with a new “Canadian Energy Regulator” and an altered federal environmental assessments process to include a broad range of impacts to be reviewed by a new “Impact Assessment Agency.” The bill has been passed by the House of Commons and has now been referred to the Senate for review.
Currently, major energy projects are reviewed by the National Energy Board, which consults with the public, experts and stakeholders to evaluate a project according to a variety of economic and environmental factors. Upon completing a review, the regulator produces a report, outlining recommendations. The federal government receives this information and uses it to determine whether to approve a given project based on the “national interest.”
The process for these reviews are governed by the NEBA and CEAA: the Acts provide definition, for example, on who can participate in the review, how long a review should last, and what criteria are to be used in evaluating a project.
The government has positioned the changes to the NEBA and CEAA embodied in Bill C-69 as a means of eliminating regulatory uncertainty, providing clarity, avoiding legal action, and increasing Indigenous and stakeholder engagement.
While these goals are ostensibly positive, there is a growing consensus among industry groups and business leaders that the bill falls short of its aspirations. It lacks clarity on key issues, creating the likelihood that it will make an already complex system more complicated, while ultimately raising uncertainty and the potential for litigation. Contrary to the government’s stated intentions, Bill C-69 in its current form will be a significant barrier to future investment, putting jobs at risk.
Impact Assessment and Recommendations
The Canadian Association of Petroleum Producers (CAPP) is asking the federal government to pause and review its plans for Bill C-69 and further consider the long-term impacts to the country and Canadians. By working collaboratively with the oil and natural gas industry and other stakeholders, the government can make the Bill what Canada needs it to be – a framework for an efficient process that maintains high environmental standards and in which Canadians and investors can be confident.
The proposed changes to the National Energy Board Act and the Canadian Environmental Assessment Act will make the regulatory process more complicated, time consuming, legally vulnerable and, ultimately, erode public and investor confidence. Bill C-69, in its current form, will be a significant barrier to future investment and put jobs at risk, from coast to coast to coast.
The federal government can now create an improved legislative framework – more concise, timely, simpler and certain – for future energy developments by:
Providing a clear path to project approvals and construction;
Leveraging the expertise of federal and provincial regulators;
Establishing a framework for Bill C-69’s early planning phase;
Removing the debate on public policy questions from project reviews; and,
Creating a project list that clearly defines appropriate thresholds or criteria for any additions or deletions.
Tim McMillan, President and CEO of CAPP:
Bill C-69 is currently before the Standing Senate Committee on Energy, the Environment and Natural Resources for further deliberation.