Lawyers hope for amendments to environmental assessment bill

The federal government’s bill to reform the environmental assessment process, Bill C-69, has reached the committee stage in the Senate, with a number of senators publicly commenting that they would like to see amendments made to the bill in the face of certain industries objecting to it.

Environmental lawyers in Ontario say they hope the government will be open to amendments.

The bill aims to reform the federal environmental assessment regime and place more emphasis on early engagement with affected communities as a way of avoiding problems as the assessment process unfolds, under the supervision of a newly created federal Impact Assessment Agency.

It has faced criticism from lawyers in the field for not providing enough certainty to proponents, for changing the standard of assessment and for giving too much discretion to the environment minister in approving projects.

Michael Fortier, a partner with Torys LLP in Toronto, who does proponent-side work with energy, infrastructure, mining and metals industries, says he would like to see amendments that would ensure more certainty around the timelines of project assessments.

“For proponents, their question is, ‘How long is this process going to take me?’” says Fortier. “The way [the bill] is currently, with so many potential off-ramps in terms of timing, where the clock can be stopped, it’s hard to give an aggregate time.”

Fortier says the ability to “stop the clock” during the process can add years to an approval process and that in industries where people compete across industries, such as mining, certainty around the timing of the process matters to proponents.

Fortier adds that from a proponent-side Indigenous perspective, they want to understand what their investment in terms of time is and that any time they spend on a process doesn’t wind up with it not being viable at the end of it.

“That’s one aspect where amendments would be relatively easy to reduce the amount of opportunities for time delay,” says Fortier.

Stephen Hazell, a lawyer and director of conservation and general counsel with Nature Canada in Ottawa, says he expects the government to accept only minor, technical amendments to the bill.

“[The government is] not prepared to consider amendments which are really outside the policy framework, and if the Senate did bring forward major amendments that really changed the bill substantially, then there would need to be Cabinet approval of those,” says Hazell.

Hazell and Nature Canada have proposed two of them in conjunction with Ecojustice, West Coast Environmental Law and Centre québécois du droit de l’environnement.

The first amendment would remove wording added by the House of Commons’ environment committee regarding the Impact Assessment Agency considering any alternatives to a project that are technically and economically feasible.

“We think that when you’re looking at alternatives to a project, those alternatives should not be related to the designated project,” says Hazell.

“We think it’s really important that, as part of that environmental assessment, that other alternatives to that [project] be looked at.”

A second proposed amendment would insist that for panels that do the impact assessment of projects that are regulated by offshore boards, members from those boards don’t have a majority on the panel and are barred from serving as its chairperson so that they can’t control it.

Hazell says this amendment is also strongly supported by the Ecology Action Centre and East Coast Environmental Law.

“This is important in an offshore oil and gas context,” says Hazell.

“The offshore boards themselves have been extremely aggressive on this in advancing their case that they need to have control over the impact assessments, which we fundamentally disagree with.”

On a broader scope, Fortier says he would also like to see stronger language in the bill to ensure that a robust assessment process has greater protection from litigation to challenge it.

“Obviously, you need a mechanism for if the process goes wrong, but the flip side is that if the threshold for the appeal mechanism is too low, you get basically a second whole process reassessing the first process, as opposed to a narrower check and balance,” says Fortier.

He cites the example of renewable energy approvals in Ontario, which he says had a fairly comprehensive process and a high threshold to appeal them.

Fortier also notes that this threshold is not related to the federal government’s s. 35 obligations to consult Indigenous people in order to maintain their treaty and land rights.

“If you’re asking everybody to invest in a good process that will take lots of time, resources and effort, unless there’s some way that the process has gone terribly wrong, you should be respecting that process and not having opportunities to re-do it in various forums,” says Fortier.

Ontario Senator Howard Wetston, a lawyer who is counsel emeritus with Goodmans LLP in Toronto and the former chairman of the Ontario Securities Commission and the Ontario Energy Board, has been named the legislative lead on the bill for the Independent Senators Group, and he is organizing briefings for independent senators.

Wetston says he is not yet in a position to say what kinds of amendments will be put forward.

“There’s a lot of discussion around amendments,” says Wetston.

“A lot of that flows from submissions made to senators. They all have them from certain organizations — some of them detailed, that the government may or may not consider and which the Senate may or may not send to the House.”

Wetston says that in looking at the proposals, some may have merit, but some would be unnecessary detail.

“There probably could be a series of amendments that, having had the benefit of hearing from so many stakeholders, could improve the bill,” says Wetston.

“My hope is that [the amendments] are meaningful, material and would allow for the various interests to come together more positively than they are on the existing bill.”

The Canadian Bar Association’s Energy, Environmental and Resource Law previously made 21 recommendations for how to improve the bill when it was still before the House of Commons in April 2018, but the head of the section was not available to comment before deadline.