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Legislation

Senate compromise on government’s signature impact assessment bill would put maligned regulators back in charge on environmental review panels

By Peter Mazereeuw      

Plus, a ban on importing shark fins is now steps away from law.

Conservative Senator Percy Mockler, left, and Independent Senators Paul Massicotte and Patti LaBoucane-Benson are part of the Senate Environment Committee, which is wrapping up its study of Bill C-69, the most controversial piece of legislation since the cannabis legalization bill last year. The Hill Times photograph by Andrew Meade
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Senators on the Environment Committee changed the government’s signature impact assessment bill last week to give industry regulators the majority of seats on environmental review panels, reversing a key clause in the bill that sprung from widespread criticism and distrust of the role those regulators had played in assessments under the previous Conservative government.

Those changes must still be approved by the Senate as a whole and the government and House of Commons.

The Independent and Conservative Senators on the Environment Committee each collectively proposed a slate of amendments to the sweeping Bill C-69 at the end of their study earlier this month, numbering well over 200 altogether. Faced with a self-imposed May 16 deadline to wrap up their work, the Senators struck a deal last week to hash out the amendments behind closed doors in a working group, instead of during committee meetings. They found common ground on overlapping or contradictory amendments, and agreed not to hold recorded votes on any of the rest, regardless of the content, agreeing to amendments—identified only by number—in batches of 10 at a time during a May 16 meeting, stopping occasionally to debate or clarify some of them.

The deal was struck because the two groups effectively have even numbers on the committee, with non-affiliated Senator David Richards (New Brunswick) consistently voting with the Conservatives. With no time to negotiate over every amendment, the Senators chose to agree to every one of them, instead of seeing tie votes defeat all of them.

It’s not easy to discern exactly how Bill C-69 would be changed by all of the amendments passed by the committee, since many were not debated. The amendments were numbered, and linked to 15 different documents outlining lists of amendments put forward by different Senators. Two Senators on the committee told The Hill Times that more than 200 amendments had been passed by the committee. The National Post reported last week that the number was 187, citing an internal Senate document.

One of the amendments passed would give industry regulators such as the Canadian Nuclear Safety Commission, the new Canadian Energy Regulator—replacing the oft-maligned National Energy Board—and offshore resource development boards a majority of the seats, including the chair, on review panels that will conduct the impact assessments for major energy infrastructure projects.  

Bill C-69 explicitly bars officials working for the industry regulators from holding a majority of seats, or the chair position, on the environmental impact assessment panels. The bill proposes that the regulators fill some of the seats, and that the remainder by filled by other experts. The bill is intended to make good on a 2015 Liberal election promise to overhaul the environmental assessment process, in the wake of years of controversy over the way in which regulators such as the National Energy Board and Canadian Nuclear Safety Commission handled assessments. An independent panel struck by the government recommended in 2017 that big changes be made to the environmental assessment process, in part because the public did not have faith in the independence of those regulators from the industries they regulate.

Conservative Senator Dennis Patterson (Nunavut), a member of the committee, said Bill C-69 had “overly diminished” the role of regulators, who have hard-to-find expertise on the industries they govern. He said the committee had been told as much by Alberta Premier Jason Kenney, Newfoundland and Labrador Premier Dwight Ball, and industry lobby groups that testified during its study. The amendment to give regulators majority status on the panels had been proposed as one of the Conservative amendments.

Most members of the Senate Environment Committee struck a deal not to vote down each other’s amendments to Bill C-69, on environmental impact assessments, to avoid tie votes that would prevent either side from altering the widely-criticized bill, said Independent Senator Yuen Pau Woo. The Hill Times photograph by Andrew Meade

Independent Senator Yuen Pau Woo (B.C.), a member of the committee and the facilitator of the Independent Senators Group (ISG), said he believed the ISG amendments had a better chance of being accepted by the government in the House.

“We recognize that if we were to vote on each amendment strictly along the lines of which group we belong to, there would be a tie on most if not all amendments, and no amendments would go through,” he said.

Many of the amendments that were debated during the course of the Senate’s study were relatively uncontroversial: proposals to allow cable ferry operators to replace their cables without requiring a new assessment, for example. Some amendments aimed to reduce the power and discretion that the environment minister has over the assessment process, putting that power back into the hands of the Impact Assessment Agency, the organization responsible for assessments up until they go into the hands of a review panel.

The Senate as a whole must still approve the changes made by the committee. The committee members are planning to bring their report before the Senate on the week of May 27. Sen. Woo said he believed that the first Senate evaluation of the committee’s work, report stage, “should be smooth.” He said that there was a general consensus among most ISG Senators that Bill C-69 should be sent back to the House as amended by the committee, so that the government can decide which amendments to accept or reject.

Senator Grant Mitchell (Alberta), the bill’s sponsor and part of the government’s representative team in the Senate, also said he believes it’s up to the government in the House to decide which of the committee’s amendments to accept or reject.  

Path clearing for fisheries bill, shark fin ban

Senators are also beginning to come closer together on the fisheries protection bill, C-68, which has been strongly opposed by the Conservative Senate caucus and is in the final stages of a study by the Senate Fisheries and Oceans Committee.

Senator Peter Harder (Ottawa), the government’s representative in the Chamber, introduced an amendment to the bill last week that would eliminate an amendment made earlier in the House of Commons by Green Party Leader Elizabeth May (Saanich-Gulf Islands, B.C.) that defined fish habitat in a way Conservative Senators including Sen. Don Plett (Landmark, Man.) have said is overly broad, and could prove impractical.

Sen. Harder said at committee that his change was specifically intended to address Sen. Plett’s concerns. Sen. Plett told The Hill Times last week that he had not yet reviewed Sen. Harder’s proposed amendment.

Sen. Harder also proposed amendments to Bill C-68 to make the importation of shark fins illegal, a move he said was specifically intended to incorporate a private member’s bill, S-238, introduced by Conservative Senator Michael MacDonald (Cape Breton, N.S.) to do just that.

Conservative Senator Michael MacDonald will see the thrust of his private member’s bill to ban the importation of shark fins inserted into a government bill, C-68, and likely passed into law. The Hill Times file photograph

Like most private members’ bills, S-238—currently awaiting study by the House Fisheries Committee—has slim odds of being adopted into law. Sen. MacDonald said Sen. Harder told him the shark fin importation ban would be incorporated into the government’s fisheries bill as a “way of him showing that [the ban] would become legislation by the end of the legislative session.”

“This is a simple conservation measure. It’s not a moral judgement or a cultural judgement,” said Sen. MacDonald, noting that shark fins can still be harvested from sustainable Canadian shark fisheries, where the fins will be taken from species of sharks that are not threatened or endangered, and the sharks will not be thrown back into the ocean with their fins cut off, a practice that has attracted widespread criticism around the world.

“We know that there’s a real problem around the world in the destruction of these species,” he said.

“This is no different than blocking elephant tusks or rhino horns.”

Shark fin soup is still considered by many to be a staple of a luxury, celebratory dinner in Chinese culture.

Sen. MacDonald said he couldn’t speak for the Conservative caucus, but that he would be voting in favour of the amended fisheries bill, C-68. He said he also still hopes to see his private member’s bill passed as well.

Sen. Plett said the incorporation of S-238 would not on its own change the Conservative caucus position on C-68 in the Senate.

“There were clearly many members of our caucus who supported that private member’s bill. I think if things get folded into government bills, we will have to look at the entirety of Bill C-68,” he said.

The Senate leaders have not yet formally agreed to a deadline date for a third reading vote on bills C-68, C-69, or C-48 to ban oil tanker traffic from most of the B.C. Coast. Last week, Senators on the Transport Committee were deadlocked in a vote on C-48, which in turn resulted in the committee effectively recommending to the Senate that the controversial bill be killed in the Senate. The Senate has not yet held a vote on whether to kill the bill or ignore the committee report.

Correction: Conservative Senator Dennis Patterson represents Nunavut, not Yukon. This factual error has been corrected. 

peter@hilltimes.com

HOUSE OF COMMONS

Second reading:

  • C-5, An Act to Repeal Division 20 of Part 3 of the Economic Action Plan 2015 Act, No. 1
  • C-12, An Act to amend the Canadian Forces Members and Veterans Re-establishment and Compensation Act
  • C-27, An Act to amend the Pension Benefits Standards Act, 1985
  • C-28, An Act to amend the Criminal Code (victim surcharge)
  • C-32, An Act related to the repeal of Section 159 of the Criminal Code
  • C-33, An Act to amend the Canada Elections Act
  • C-34, An Act to amend the Public Service Labour Relations Act
  • C-38, An Act to amend an Act to amend the Criminal Code (exploitation and trafficking in persons)
  • C-39, An Act to amend the Criminal Code (unconstitutional provisions)
  • C-42, Veterans Well-being Act
  • C-43, An Act respecting a payment to be made out of the Consolidated Revenue Fund to support a pan-Canadian artificial intelligence strategy
  • C-52, Supporting Vested Rights Under Access to Information Act
  • C-56, An Act to amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act
  • C-87, Poverty Reduction Act
  • C-94, An Act respecting certain payments to be made out of the Consolidated Revenue Fund
  • C-98, An Act to amend the Royal Canadian Mounted Police Act and the Canada Border Services Agency Act

Committee:

  • C-88, An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act
  • C-92, An Act respecting First Nations, Inuit, and Métis children, youth, and families
  • C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis
  • C-97, Budget Implementation Act, 2019, No. 1

Consideration of amendments made by the Senate:

  • C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts
  • C-81, Accessible Canada Act

SENATE

Senate pre-study:

  • C-92, An Act respecting First Nations, Inuit, and Métis children, youth, and families
  • C-97, Budget Implementation Act, 2019, No. 1

Second reading:

  • C-84, An Act to amend the Criminal Code (bestiality and animal fighting)
  • C-91, Indigenous Languages Act

Committee:

  • C-48, Oil Tanker Moratorium Act
  • C-68, An Act to amend the Fisheries Act
  • C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act
  • C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act, and other Acts, and to make consequential amendments to another Act
  • C-77, An Act to amend the National Defence Act to make related and consequential amendments to other Acts
  • C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, and the Garnishment, Attachment, and Pension Diversion Act
  • C-82, Multilateral Instrument in Respect of Tax Conventions Act
  • C-83, An Act to amend the Corrections and Conditional Release Act and another Act

Report stage:

  • C-59, An Act respecting national security matters

Third reading

  • C-71, An Act to amend certain Acts and Regulations in relation to firearms

AWAITING ROYAL ASSENT

  • C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act
  • C-85, An Act to amend the Canada-Israel Free Trade Agreement Implementation Act and to make related amendments to other Acts
  • S-6, Canada-Madagascar Tax Convention Implementation Act, 2018

Peter Mazereeuw

Peter Mazereeuw is a deputy editor for The Hill Times covering politics, legislation, and the Senate.
- peter@hilltimes.com


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