Bill C-69 creates a new regime for dealing with the vast array of issues involved in the assessment and approval of resource development projects. While the new approach is claimed to strike a balance between economic development and social responsibilities.... Critics are angry at what is perceived as an attempt by the federal government to further complicate and intensify the amount of 'red tape' affecting the resource sector.
THE FEDERAL GOVERNMENT introduced Bill C-69 in early 2018 and the bill received Royal Assent on June 21st of this year. Bill C-69 came into force August 28, 2019 and, as such, industry proponents will need to navigate its murky waters.
Bill C-69 creates a new regime for dealing with the vast array of issues involved in the assessment and approval of resource development projects. While the new approach is claimed to strike a balance between economic development and social responsibilities, the Bill has come under heavy criticism from federal opposition members, resource industry players, and several provincial leaders. Critics are angry at what is perceived as an attempt by the federal government to further complicate and intensify the amount of 'red tape' affecting the resource sector. Many believe that the drastic swing in favour of the current government's political agenda will make things very difficult for the resource sector going forward.
A major component of Bill C-69 is the creation of the Impact Assessment Act (the "IAA"), which is intended to replace the existing Canadian Environmental Assessment Act, 2012 (the "CEAA"). The method the CEAA used in assessing projects was focused on potential environmental effects that a project may cause. Consideration was given to things such as wildlife habitat protection and minimizing the impact on traditional Indigenous practices. The IAA expands the assessment criteria into several new categories. These categories include, but are not limited to, the economy, environment, health impacts, social impacts, gender analysis, climate change, and the public interest. Of particular uncertainty, is the assessment of the project will have on social issues, which in many cases will be unrelated to the project or the proponent. While the implication is unknown, it seems the IAA will require industry to mitigate and advance social issues for obtaining its approval to develop.
The inclusion of the social impact categories has caused a ripple of concern across the resource sector. Opponents of the legislation point to the fact that several of the new categories of assessment are overly broad and ill-defined. Confusion and uncertainty as to whether the potential impacts can ever be adequately assessed is prevalent. There is widespread concern that projects could be held up for years as activists apply to have courts canvass whether a project proponent has fulfilled their duty to these new categories.
Concerns about approval timelines being extended as a result of litigation are accompanied by the concerns of many regarding the public consultation process. Under the CEAA, public consultations had the potential to delay projects for long periods of time. Proponents often had a difficult time determining whether they had conducted adequate consultation, and the consultations themselves often devolved into an opportunity for aggrieved stakeholders to disrupt the approval process. The new legislation allows for an increased role for the public to be included in consultations. This can include parties that have no direct relationship to the proposed project. While the CEAA required standing to participate, the IAA allows potentially any person to participate without having to obtain a position of standing. The newly created Impact Assessment Agency of Canada does have the power to restrict participation in consultation as it sees fit. Many critics believe that this discretion will be used sparingly and that the loss of the standing requirement will only result in additional delays in project approval.
A stated goal of the new legislation is strengthening and codifying the importance of engaging with Indigenous peoples in a meaningful way. This engagement will include a focus on "traditional Indigenous knowledge" as an important source of evidence when dealing with the potential impacts on land use and traditional practices. Courts have cited lack of appropriate levels of Indigenous consultation as reason to delay or stop resource projects in the past. It is yet known whether the newly designed consultation process will help or hinder efforts to ensure that Indigenous stakeholders are satisfied that their concerns have been appropriately heard.
Bill C-69 came into force August 28, 2019. While not yet finalized prior to the publication deadline for this article, an unofficial version of the Project List is available on the Government of Canada website. It delineates the specific types of projects that will be affected by the new legislation. Opponents of Bill C-69 note that the Minister retains the power to designate the legislation to unlisted projects in certain circumstances. There is no shortage of confusion and anger surrounding the new legislation and industry players will undoubtedly be feeling the repercussions of the new regime for years to come.
Originally Published by Global Ventures Magazine Fall 2019
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