Calgary, May 2 – As the deadline nears for Canada’s proposed – and controversial – Bill C-69 in the Senate, a new Canada West Foundation analysis identifies concerns about how the bill could wipe out years of hard-won jurisprudence and leave projects subject to years of unnecessary court challenges and delays.
Bill C-69: We lose the jurisprudence, we start back at square one, released today, further identifies how new responsibilities for the Governor in Council (GIC, or federal Cabinet) under Bill C-69 would oblige it to second-guess the regulator. The provision, which is new under the bill, may be well-intended but it undermines previous jurisprudence and could lead to new rounds of court challenges.
The analysis, by CWF President and CEO Martha Hall Findlay and Natural Resources Director Marla Orenstein, focuses on four elements that threaten established jurisprudence on the environmental assessment and project approval process:
• The role of the GIC given significant added requirements in Bill C-69
• The replacement of the National Energy Board with a different regulatory body, and removal of the lifecycle regulator for project approvals
• The potential for a reference to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to overrule jurisprudence on duty to consult Indigenous communities
• The inclusion of broad, undefined terms that have not yet been reviewed and will require further interpretation by the courts
These issues are critical to ensure that once any project is approved, it will not then face years of unnecessary court delays; the report calls on the Senate and federal government to examine them closely.
“The intentions of Bill C-69 may have been well-meaning, but the unintended consequences of losing hard-won jurisprudence could be disastrous – and irreversible. Major court decisions such as the Federal Court of Appeal rulings in Gitxaala Nation v Canada and Tsleil-Waututh Nation v. Canada have provided a clear way forward on what is expected for the project approval process and the duty to consult. Wiping out that jurisprudence under C-69 will open up projects to years of unnecessary court challenges and delays, scare away investment even further, and hurt Canada’s economic competitiveness.” – Martha Hall Findlay, President and CEO
“It’s not just pipelines, but other infrastructure projects, including large electricity transmission lines for wind and solar, that may be subject to additional and unnecessary court delays under Bill C-69. While some environmental activists may cheer the lack of pipelines, the bill could significantly set back renewable energy production, too. No one wins if that happens.” – Marla Orenstein, Director, Natural Resources Centre