With the country’s environmental assessment process recently knocked by the courts, the government’s legislation to overhaul how impacts of major resource development projects are measured will be subject to intense scrutiny this fall as it makes its way through the Upper Chamber.
Bill C-69, the Liberals’ wide-ranging environment legislation that would put in place a new Impact Assessment Act and Canadian Energy Regulator Act, was introduced in the Senate on June 20 after a contentious run through the House of Commons that included an abbreviated committee study, 130 amendments, and the imposition of time allocation.
Among the bill’s numerous provisions, it creates a single new agency to undertake environmental assessments for federally regulated projects, the Impact Assessment Agency of Canada, and resets and renames the National Energy Board to the Canadian Energy Regulator, removing its powers to conduct environmental reviews.
The changes proposed under the legislation mean it was already one to watch, but that visibility will be heightened following the Aug. 30 Federal Court of Appeal ruling to void the Liberal government’s November 2016 approval of the Trans Mountain pipeline expansion project, which in turn nullified construction and operation certificates.
“[Trans Mountain] will come up in debate for sure, because it is kind of a seminal issue,” said unaffiliated Senator Grant Mitchell (Alberta), who is sponsoring the bill in the Senate.
“What that court case said, in my mind, is it’s not that you can’t do this project, [but] you can’t take shortcuts in the review of it,” said Sen. Mitchell, a member of the three-person Senate government-representative team, in a phone interview. “My argument would be that we better have rigorous, comprehensive assessment processes so that we don’t keep running into that roadblock. If the court’s assessment is that the review wasn’t quite complete then we better make sure we have a process that is complete.”
The court ruling set out that the government should direct the NEB to redo its review of the project—in particular to consider whether project-related shipping and its impacts are within the project’s scope—and to redo its own third phase of consultations, which spanned nine months and focused on outstanding concerns related to impacts to “potential or established Aboriginal or treaty rights.”
On the same day the court delivered its ruling, the government finalized its roughly $4.5-billion purchase of the pipeline from Kinder Morgan. The Texas-based company suspended non-essential spending on the project in early April, deeming it to be too risky an investment for shareholders given political and legal challenges, leading to the federal government’s decision to buy the pipeline.
The Trans Mountain pipeline project seeks to expand the existing pipeline to connect it to tidewater, stretching 1,147 kilometres from Edmonton to Burnaby, B.C.
Opponents to the pipeline have hailed the court ruling as the project’s death knell, but the government has signalled it’s committed to see it through.
Sen. Mitchell said he expects debate will be “very intense” as people try to find the balance between economic development and environmental concerns.
Conservative Senator David Tkachuck (Saskatchewan) will serve as the opposition critic for Bill C-69. The bill has yet to begin second reading.
Along with Bill C-69, there are 11 other pieces of government legislation for the Senate to sink its teeth into when the Chamber resumes sitting on Sept. 18.
Among them is C-59, the National Security Act, a nine-part bill that rolls back controversial elements of its 2015 predecessor—the anti-terrorism law then known as C-51. Included in C-59 are provisions raising the threshold for preventative arrests, and codifying new tools to collect citizens’ electronic data. It establishes new oversight bodies, in the form of the National Security and Intelligence Review Agency (replacing existing oversight bodies for the Canadian Security Intelligence Service and the Communications Security Establishment) and a new intelligence commissioner tasked with approving CSIS and CSE activities in advance.
More controversially, it makes changes to the Communications Security Establishment Act, expanding the agency’s mandate and providing for more proactive, offensive activities.
“In my view, Bill C-59 is a reasonable, responsible, and necessary response to the real security threats we face, and one which enhances our security while respecting the constitutional rights and freedoms of Canadians,” Independent Senator Marc Gold (Stadacona, Que.), the bill’s sponsor, wrote in a Hill Times op-ed on Sept. 10.
Sen. Gold’s Independent Senators Group colleagues are also sponsoring other bills for the Senate to consider this sitting: C-51, which amends the Criminal Code and Department of Justice Act, by Sen. Murray Sinclair (Manitoba); C-58, amending the Access to Information and Privacy Acts, by Sen. Pierrette Ringuette (New Brunswick); C-55, an Act to Amend the Oceans Act and the Canada Petroleum Resources Act, by Sen. Patricia Bovey (Manitoba); C-48, the Oil Tanker Moratorium Act, by Sen. Mobina Jaffer (British Columbia); and C-57, an Act to Amend the Federal Sustainable Development Act, by Sen. Diane Griffin (Prince Edward Island).
Bill C-64, the Wrecked, Abandoned, or Hazardous Vessels Act, currently awaiting first reading, does not yet have a Senate sponsor, nor does C-68, which amends the Fisheries Act, C-62, which changes the Federal Public Sector Labour Relations Act, or C-47, which would pave the way for Canada to join the international Arms Trade Treaty.
Bills C-51 and C-58 are the only two bills undergoing committee study, both of which are in the work plan for the Legal and Constitutional Affairs Committee.
Bill C-51, which has been in the Senate since December, aims to clean up so-called “zombie laws”—removing from the Criminal Code offences that have long been deemed outdated or unconstitutional, such as challenging someone to a duel—as well as align sexual assault laws with existing Supreme Court of Canada decisions.
The sexual assault provisions have generated controversy, specifically among defence attorneys, some of whom say the proposed changes infringe on the Charter rights of the accused.
The bill would require those accused of sexual assault to proactively disclose, 60 days in advance of a trial, to the court and the complainant any records they have in their possession that relate to their accuser that they want to use as part of their defence. A judge would then rule on whether the evidence is admissible.
The Charter statement Justice Minister Jody Wilson-Raybould (Vancouver Granville, B.C.) tabled with C-51 says the changes “would preserve the features of the law that allow the accused to present evidence relevant to their defence, while continuing to safeguard the equality, security of the person, and privacy interests of sexual assault complainants.”
The Legal Committee, chaired by Liberal Senator Serge Joyal (Kennebec, Que.), began its study of the bill in June, holding two meetings. It will pick up its work on the bill this week, with two meetings on Sept. 19 hearing from representatives from groups such as the Criminal Lawyers’ Association, and the Canadian Civil Liberties Association, before deliberating the bill clause by clause the following morning.
Wrapping up work on that bill will free the committee to begin work on C-58, which has also been in the Senate since December.
The bill seeks to gives the federal information commissioner power to order the release of records, requires review of the act every five years—and an immediate one-year review once passed—and creates clauses calling for the “proactive disclosure” of institutions that are exempt from the act, like ministers’ offices.
But critics, which include information commissioner Caroline Maynard and opposition parties, say the bill doesn’t go far enough and falls way short of the Liberals’ promise to make government open by default.
“Of course that is a major piece of legislation, and considering the role of the Senate we will want to look carefully at that bill,” which deals with “an essential issue of democracy,” Sen. Joyal told The Hill Times.
Sen. Joyal was also in favour of a motion brought by Senator Peter Harder (Ottawa, Ont.), who is the government’s representative in the Senate, to have the Legal Committee undergo a pre-study of Bill C-76, the Elections Modernization Act, which is still in front of MPs at the Procedure and House Affairs Committee. The Senate has not made a decision on Sen. Harder’s motion, which was first debated on May 30.
“I think there is a general concern on all sides that the Elections Act has to be waterproof in terms of foreign intervention and third-party intervention,” Sen. Joyal said, adding that he thinks “that generally everybody would expect that we take all the steps needed to prevent that happening for the next election that will take place in the fall of 2019.”
—with files from Laura Ryckewaert
The Hill Times
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