By Colleen Collins
Published in The Globe and Mail

Senators have been taking action recently on two hugely consequential energy bills: C-69, the proposed Impact Assessment Act; and C-48, known as the proposed tanker ban.

On C-69, the Senate Standing Committee on Energy, the Environment and Natural Resources recommended a package of close to 190 amendments; Catherine McKenna, the Minister of the Environment, is saying that the government will refuse a large number of the proposed amendments, including “93 per cent of those proposed by the Conservative Senators.” She has issued a number of her own. We are baffled as to why they would have rejected amendments that would have strengthened the process – those that focused on efficient management and timeliness; that brought in the technical expertise of the lifecycle regulators; or that brought in municipalities as agencies to be consulted. Ms. McKenna seems to be picking and choosing her favourites – ignoring the fact that both the Senate Committee and the Senate as a whole supported the entire package.

On C-48, the tanker ban, the Standing Committee on Transport and Communications recommended full rejection of the bill; the Senate as a whole, however, did not support the committee’s report and is now debating the bill in third reading – amendments are possible, rejection is possible but unlikely. There are two main reasons for the failure by the Senate to veto the bill despite the Committee’s report. Some Senators genuinely disagree with the bill, but they also fear backlash from critics already ringing alarm bells over perceived activism from an unelected chamber. A Senate veto is significant, but not unheard of; it has happened five times since 1988.

Make no mistake, both C-69 and C-48, as presented to the Senate, bode ill for Canada on economic grounds alone. Further, with six premiers, representing almost two-thirds of the Canadian population, warning the Prime Minister that the bills in their original forms will threaten the national economy, a real – and unfortunate – fight along regional lines is shaping up.

The Senate’s package of amendments on C-69 provides significant improvements to a bill that would otherwise bring the development of major projects – not just pipelines, but also transmission lines, ports, off-shore oil and gas and everything that depends on them – to a halt. More court challenges, more political interference in independent expert decision-making, more uncertainty would ensue. In the face of what appears as a largely partisan dismissal of much of its hard work, the Senate should stand its ground.

Some will argue that the Senate, because it is not elected, does not have the democratic legitimacy to impede the will of the elected House of Commons. Others have criticized the recent changes to the Senate. Former Liberal Senators were removed from caucus and now sit as Independent Senators. New Senators are appointed by the Prime Minister based on the advice of the Independent Advisory Board for Senate Appointments. These critics argue that reduced partisanship in the Senate will make it less willing to do the government’s bidding. But that’s the whole point – to allow for effective “sober second thought,” not simply more partisan voting. Canada’s parliamentary system has always been challenged by the fact that there is no counterbalance to decisions of a Prime Minister with majority control of the House of Commons.

The Senate is redefining itself – as it turns out, just in time. When a government bill is egregious, when the House of Commons has failed in its legislative duty, the Senate must step up to the plate.

Bills C-48 and C-69 are such occasions.

In the case of C-69, the government’s intentions are good but the bill itself falls far short. The House of Commons failed in its examination of the bill. A bill with major implications for energy and natural-resource development, and the economy as whole, was only reviewed by the House Committee on the Environment, not Natural Resources and not Finance. The committee met 14 times and recommended more than 100 amendments – most of which were clearly based on input from government supporters. Not surprising in a majority government with majority control of that committee. That left it to the Senate, where after 36 meetings across the country and testimony by hundreds of organizations, Indigenous groups, individuals and provincial governments, the Senate committee proposed a further, more substantive package of amendments to keep the good and remove the worst. Do the amendments make a perfect bill? No, but it’s certainly better and the amendments maintain the spirit of the original version.

Fixing the tanker ban isn’t quite so clear cut. Senators made a serious effort to identify possible amendments that might be acceptable to the government. But it’s a ban – and that’s hard to amend. This bill does not ban oil tankers from loading and unloading in various other environmental or culturally sensitive areas in Canada – it just bans them on the northwestern coast of British Columbia. It bars an otherwise active shipping region from developing crude oil port facilities. And it has, somewhat ironically, given C-69 without any assessment of the impact on the environment or economy and – particularly galling – without consulting First Nations.

The House of Commons failed in its duty on these bills. The Senate did not. In a system without internal checks and balances, particularly in a majority government that ignores provincial premiers, that frustrates regional ambitions, and where Parliament’s abdication of due diligence will have grave implications for our country, the Senate has an urgent purpose. We can only hope that the entire group of MPs – those that are responsible for this bill – do their jobs, and make their decisions on the package of Senate-recommended amendments based on a more objective analysis of what they can do to improve the bill.

Colleen Collins is vice-president at the Canada West Foundation