By Colleen Collins
Published in Policy Options
March 18, 2019
A well-meaning but bungled proposal to overhaul how Canada approves major projects and assesses their impact is now in the hands of the Senate, making it the country’s best chance to rescue Bill C-69 and produce a better Bill that will help – not hurt – competitiveness in Canada and achieve our broader societal goals.
Since last June, when Bill C-69 was passed in the House of Commons, opposition to it has been growing, with widespread fears that it will accomplish the opposite of its stated goals. The Bill would replace the National Energy Board with a new Canadian Energy Regulator, replace the Canadian Environmental Assessment Act of 2012 with the Impact Assessment Act, and create the Impact Assessment Agency.
No one objects to its aim of creating a more effective and efficient assessment process. What opponents fear is that it will increase uncertainty, provoke new rounds of court challenges, further politicize the process, reduce investment and risk public safety.
Industry and environmental activists are mostly concerned by the prospect of an unprecedented level of political discretion throughout the impact assessment and project approval process. Environmental groups have given the proposed Impact Assessment Act a C-minus.
Bill C-69 will have major consequences for our economy and for Indigenous economic reconciliation. Yet only one ministry – the Minister of the Environment – sponsored it, and only one committee – the Environment and Sustainable Development Committee – worked on it. There was no input from the Natural Resources Committee, the Finance Committee or the Indigenous and Northern Affairs Committee. It ignored the advice of an expert panel appointed by the Minister of Natural Resources to modernize the National Energy Board.
The Canada West Foundation and others – companies, industry associations, provincial governments, environmental groups and individuals – have done a great deal of homework on this issue since the Bill was introduced in the House of Commons. In February, the foundation proposed a set of amendments to improve the Bill. There are many other good ideas out there to improve it, too.
Now the Bill is in the hands of the Senate, which, after a second reading in December, decided it needed a thorough examination at the committee level, in this case the Standing Senate Committee on Energy, the Environment and Natural Resources. Whether the Senate can or should veto House of Commons legislation is separate question.
But Bill C-69 is one of those instances when the Senate should bring its full capacity to bear to address what clearly is a failure of the House of Commons. The Senate committee can explore and propose amendments that retain the best parts of the Bill and eliminate the worst. There is strong consensus among Parliamentary scholars that the Senate plays a positive role. It should take the time to do the work that is required, and its recommendations should be respected and considered. It is, after all, the place of sober second thought.
Canadians and governments are often tempted to ignore the Senate except when it stumbles. But the Senate has made vital historic contributions. It has amended legislation to avoid constitutional challenges and to preserve the independence of our central bank, freedom of the press, minority rights and rights to abortion. Fundamentally, it was the Senate that united George Brown and Sir John A. Macdonald over Confederation – without it there might not have been a Canada.
Its work in committee on Bill C-69 will be important and is likely to be widely scrutinized. Senators’ comments during second reading were thoughtful and broad-ranging, and their questions in the early days of the committee hearings are on the mark.
“This is too important for us to play petty, partisan politics with,” Independent Senator Paula Simons said in December. “We need a regulatory regime that protects our environment, that honours our Indigenous treaty obligations and that creates investor confidence so we can have good projects with international capital and with the sensible development of not just oil and gas — all across our industry sectors.”
The Senate is now mostly made up of independent senators, with no party affiliation. These independent senators are not subject to party “whips,” and they need not agree with the government or opposition parties. As a consequence, the Senate has become more visible and vocal as it scrutinizes legislation – which is exactly the role its creators envisioned.
Emmett MacFarlane, a political scientist and constitutional lawyer who has studied Parliament, highlights the importance of the Senate’s committee work: “Through its ability to call witnesses and hear testimony from stakeholders in an independent fashion, the Senate has the capacity to ensure at least some degree of consultation on legislation when the government has fallen short.”
The role and functioning of the Senate was underscored in a Supreme Court ruling about Senate reform in 2014. The court stressed three points about the original intent for the Upper Chamber when it was created.
First, the Senate plays “the specific role of a complementary legislative body of “sober second thought” (section 56 in the ruling).
Second, its role is complementary not competitive with the House of Commons (section 58).
Third, “it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons” [emphasis in the original]. The framers [in 1867] sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives” (section 57).
In December 1999, the law clerk of the Senate spoke about its merits, saying, “The Senate is unlikely to tamper with a wise, popular and well-written bill for which the Government has a mandate,” according to an Opinion of the Law Clerk and Parliamentary Counsel Senate of Canada on the Senate Veto (December 1999). “It is far more likely to act with respect to an ill-advised, unpopular or badly written measure. The most common manifestation of the curative benefit [of the Senate] is the improvement of legislation by amendments. Infrequently, the curative benefit will by manifested by defeat of the bill itself.”
Bill C-69 is neither wise nor popular nor well-written.
Serious review by the Senate committee is the best chance that the implications of this Bill will be made clear to the Prime Minister’s Office – which, at the end of the day, hold the cards on the Bill in the House of Commons and controls the Liberal Senators.
Colleen Collins is the Vice-President of the Canada West Foundation